Executive Calendar

Floor Speech

BREAK IN TRANSCRIPT

Mr. WHITEHOUSE. Madam President, I guess I am here to follow my friend Senator Graham and bring the opposing view regarding Mr. Barr.

I offer my appreciation to the chairman, as he leaves, for the way that he conducted the hearing. I know that he offered his appreciation to the ranking member, but the hearing, I thought, was well handled. Everybody had a chance to ask their questions and say their things, and I think the comments that the chairman made afterward about trying to bring the committee together were well received on my side.

There are a number of problems, however, that I have with this nominee. Many of them relate to continuing problems in the Department. One, in particular, I warned Mr. Barr about in a letter that I sent to him beforehand in order to make sure that he wasn't surprised by the question and so that I could get a proper, thoughtful answer. The problem is that the Department, for purposes of recusal analysis and for purposes of conflict analysis, takes a look at what people's different financial entanglements are and who they worked for before. It is a fairly standard process, but there is a big gaping hole in it. The big gaping hole in the process is that when it was set up originally at the beginning of the Obama administration, the Supreme Court hadn't yet decided Citizens United, so the flood of unlimited special interest money that poured into our politics, which quickly became unlimited, special interest dark money, was not then a problem.

Also, you didn't see a lot of Democrats who had a lot of engagement with dark money coming to high office, but with the Trump administration that all changed, and we now have an Acting Attorney General, Mr. Whitaker, who was paid $1.2 million through a group called FACT. Basically, FACT is a front group. It does no business. It has no product. It provides no service. It basically just pays Mr. Whitaker to go on talk shows and criticize Democrats. There are very few employees. The only employee I am aware of, other than, perhaps, clerical people, was actually Whitaker himself, so one would like to know why he was paid that money and who paid him in order to do proper recusal and conflict checks.

But here is what is interesting: The money that came in to pay him through FACT, before it got to FACT, had been laundered through another group called Donors Trust. Donors Trust is another group that does no business, has no service, creates no product, manufactures nothing. Its purpose for existence is to strip the identities off of big donors-- ordinarily it seems big Republican special interest donors--so that the money they then give goes anonymously to groups that pretend they are not fossil fuel funded, for instance, because the identity of the fossil fuel donor has been stripped clean, or they are not the tool of the Koch brothers because the Koch brothers' identity has been stripped clean. It is a device for misleading and confusing people. When you consider how much of that $1 million went through to Mr. Whitaker in salary, the idea that he doesn't know who was paying him when so much of FACT's money came through that one donation is really improbable.

He was questioned on this in the House the other day. I don't think he was truthful. I think he does know, and I hope--hope--that the House will pursue with subpoenas finding out who the donor was so that we actually know, because I think he does. Obviously, the donor does.

So what we have now is a situation where the Acting Attorney General of the United States potentially has a $1 million conflict of interest that I believe the Acting Attorney General knows about, that the donor with whom he has a conflict of interest obviously knows about, that has been hidden from the rest of us through laundering through Donors Trust, and that is not an environment that is conducive to proper recusal and proper conflict-of-interest assessment.

It is very poor practice, and if it weren't for the fact that dark money is so important to big Republican donor interests, I think people would readily clear this up. If the shoe were on the other foot, my colleagues on the other side would have steam coming out of their ears to get to the bottom of this. But because what is likely to be revealed is a big Republican donor, suddenly there is this massive disinterest.

Mr. Barr proposed himself as the person who is going to come to this office to defend the Department of Justice, to put the institutional interests of the Department of Justice first, to protect it from the vagaries of the Trump administration. Yet when he was asked about this, he completely fell down. He offered no sensible or reasonable assurances, so that concerned me a little bit.

I then went on to ask him, since the Department of Justice has a National Security Division, which oversees counterintelligence work, and since the Department of Justice contains the FBI, which does the counterintelligence investigations to protect our country, I asked him this: In a counterintelligence investigation, in operating to protect our country in this counterintelligence function, what should the Department of Justice know about business or other entanglements of senior officials with foreign interests and powers?

The very heart of counterintelligence is to look at American officials and see what their vulnerabilities might be to influence or control or manipulation by foreign interests and powers. That is the goal of doing counterintelligence in the first place.

So what evidence do you need to be able to do that? Obviously, it would be helpful to know what business or other interests with foreign powers senior officials have so that you can make that assessment, so you can follow whatever leads that might produce, that may give you understanding of things that otherwise seem inexplicable. It is obvious evidence to support the FBI's counterintelligence function.

Rather than give a straight answer and say ``Yes, this is obvious evidence, and obviously we will do our counterintelligence function better when we know when senior officials have foreign business entanglements,'' again he completely fell down in his answer and started quarrelling about what Senators have to declare and wouldn't give a straight answer. Well, there is an obvious reason he wouldn't give a straight answer. The obvious reason he would not give a straight answer is that the President who appointed him has significant-- although we don't understand them well yet--significant business entanglements that we don't know about. We need to find out what his business entanglements are, and it is really hard to assess some of his behavior without knowing who is on the other side of his foreign business relationships and how much money is involved and how much is at risk for him. That is pretty elementary stuff.

If you are the person who is telling yourself, as the Attorney General, who is going to come in and be the institutionalist and defend the prerogatives of the Department, defend the procedures and protocols of the Department against a President who respects none of that and who has those very entanglements, to then come in and say ``You know what, I am not going to be interested in any of that; I am, instead, going to ask counterquestions back to you about other different officials''--the inability to get a straight answer to that question signals a great deal to me about when, in a pinch, he has to choose between defending the Department and protecting the political interests of the President, which way he is going to go. I gave him that choice in that question. I gave him that choice in that question, and he very clearly came down on the side of protecting the political interests of the President.

If you can't get through a hearing question without flipping away from the interests of the Department and protecting the President, good luck when the pressure is really on. He lost enormous credibility with me in his inability to answer those questions.

It is really hard to determine recusal for conflict of interest if you don't know who paid $1 million to a senior Department official, and it is really hard to determine counterintelligence issues if you don't know what foreign entanglements senior officials have. Those are statements I would hope would be so obvious as to be indisputable. Yet this candidate foundered on both of them.

The other issue is the question of Executive power. Again, you would think that the Senate would be interested in standing up for the prerogatives of the legislative body since we are the legislative body and we have a very long and proud tradition.

From that perspective, as a Senator and legislator, I look ahead, and I see constitutional battles. There are a lot of constitutional battles that I see coming. The first is going to be, if the President, when he gets or after he gets the budget measure that we have agreed to here-- hopefully, we have agreed to here; I think it is done--if he decides that he is going to declare a national emergency and start moving money around between accounts in order to build his, as I affectionately refer to it, ``big dumb wall,'' that is a constitutional problem, and article I of the Constitution says it is the legislature that has the power to appropriate and spend funds.

So if a President is going to use his own unilateral declaration of a national emergency to say to Congress ``Sorry, your power of the purse is not actually all that real; it is the power of advice to me, and as soon as I declare a national emergency, I can spend your money where I want,'' that violates the separation of powers. That is a constitutional battle, and one can see it coming.

Executive privilege is a constant constitutional battle between Congress and the executive branch. Congress wants information; Congress seeks information; Congress needs information to perform its constitutional oversight function. But certain narrow communications within the executive branch are protected from Congress's right to do that in order to protect certain conversations and freedoms directly around the President of the United States as he has conversations. That is the general understanding of how executive privilege works.

Well, this administration has a very different understanding of how executive privilege works. They think that you get to come into a Senate hearing and not answer a question because some day maybe somebody else might exert executive privilege as to what you have said. But there is no deadline ever; there is no check ever; there is no day of reckoning ever. They just assert it, and because we have not enforced our powers here, they have gotten away with it. So executive privilege has grown into a swamp of executive obstruction of congressional oversight. We have to bring executive privilege back to its true base and its true roots, and as we try to do that, guess what. That is going to be another battle between the legislative and executive branches--another constitutional battle.

The question of whether or not the President can be indicted by a grand jury is another constitutional battle we have coming, very likely. We will have to see what the special counsel and the other Department of Justice investigations into this President and the people around him reveal, but they could very well reveal sufficient evidence to justify an indictment of anyone else who is not the President.

Within the Department of Justice there is a group called the Office of Legal Counsel, which is kind of the legal advisor to the Department of Justice. The Office of Legal Counsel has decided that a Department of Justice cannot indict a sitting President. Here is the problem with that. The Office of Legal Counsel isn't elected by anybody. They are career people. They tend to be hypersmart, but their purpose in life in opining on the separation-of-powers questions is to describe the maximum possible credible scope of Executive power. They represent the executive branch, and when they are making these separation-of-powers decisions, they always veer to the maximum greatest Executive power that they can justify. That does not mean that a court would agree with them. That does not mean that a court would agree with them.

Ever since Marbury v. Madison, it has been the constitutional power of the courts, particularly the Supreme Court, to say what the law is. The question of whether a President can be indicted is a question of what the law is regarding the indictment of a President. So that question ought to be decided in a court, but as the Office of Legal Counsel is never going to let a case go forward, then how is the Department ever going to get that opinion that it has tested in court to get a real answer under the constitutional system? Well, they probably will not. It is going to be difficult. We are going to have to try to find a way, if they do assert that, to get that proposition tested in a court instead of relying on the opinion of a group of lawyers within an executive branch Agency as to the relative powers of the courts and the executive branch.

The question of interference with these investigations by the President and the independence of those investigations also raises a variety of constitutional questions.

I have to say the top line of Mr. Barr on all of these issues was fantastic. I was kind of mentally cheering when he said some of the things he said about how he was going to keep his hands off, how he respected Mueller, how this was no witch hunt, how he was going to make sure it had full scope, how he was going to try to get the maximum transparency about the final report that he could--all of which was fine--and then we went into the weeds a little bit.

As the old saying goes, the devil is in the details. The question was serious enough that I raised it in the committee after the hearing because I was unsatisfied with his responses. Chairman Graham was kind enough to acknowledge that those were pretty darn good questions, and I should get an answer to them. He said he would try to get an answer for me, and maybe we would get on the phone together to get Barr those answers. That did not come to pass.

Instead, I wrote Mr. Barr a letter, asking him to clarify his answers. I got back a letter that provided no clarification at all. So I have given him quite a few chances to try to answer these questions. I haven't gotten a straight answer back, which makes me a little bit worried.

Here is the problem--there are actually two problems. At the end of the day, whenever the Mueller report is concluded, that report can be provided to Congress, but there is considerable flexibility and considerable discretion within the Department of Justice and the Attorney General's office as to how much to give.

I will interrupt because I see the distinguished majority leader here.

BREAK IN TRANSCRIPT

Source