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Floor Speech

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Mr. WHITEHOUSE. Mr. President, there is a legend about a woman who finds an injured snake by the side of the path, and she picks it up to take care of it. She brings it home. She cares for it. She feeds it. She nurtures it. It heals. She takes it back to put it back into where she found it. And as she does so, it bites her. And as its venom goes through her veins and she is dying, she asks the snake: Why did you bite me? I cared for you. I fed you. I nurtured you. I saved your life when you were wounded.

And the snake said: It is my nature. You knew that when you saved me.

For many of us, to our colleagues, this is a ``mark my words'' moment about an individual who will continue to disgrace himself and the rule of law if we put him on the bench. We know that because, in 6 short months at the Department of Justice, he has been involved in three significant instances of prosecutorial misconduct--not little technical violations of a rule but truly grotesque abuse of a prosecutor's powers.

Not long ago, my Republican colleagues would have prevented even the nomination of a character like this, somebody with a lawless character for the bench.

The mad dash to jam through this nominee, first in the Judiciary Committee and now on the floor of the U.S. Senate, is a new low for the way this body handles its responsibility to vet these lifetime appointments.

Let's go through the prosecutorial misconduct instances. This is a nominee who told a room full of DOJ lawyers that if the courts didn't back off on restricting unlawful deportations, they would have to tell courts--I won't use the word on the Senate floor--``f you.''

We know he said it. We know he said it because it is abundantly corroborated in realtime communications among the lawyers present who heard him say it. They talk about the ``f you'' comment in contemporaneous texts in that very matter. You really don't get--I am looking at a bunch of lawyers around here--you really don't get better corroboration than that. That is the corroboration that you take to the defense counsel and say: Maybe you should think about pleading this case out.

Why would colleagues think someone who would tell courts ``f you,'' someone who does not believe a judge's rulings need to be followed, is fit to be a judge?

We are also on solid ground concluding that this character lied to us about it in committee. He said he didn't recall. That is a heck of a memory lapse, telling a room full of Department of Justice lawyers that they should be ready to tell courts ``f you.''

Somehow--somehow--he seemed to know that he would get away with it, that he would not be forced by the majority to actually answer our questions.

He also said he never instructed anyone to disobey a court order. Too cute by half. What he said was: They should be prepared to violate a court order.

And, by the way, they did. This is all consistent with his lawless character.

He also cooked up an improper deal in a criminal case against the mayor of New York where they were going to hang a suspended criminal prosecution--well-founded and grounded--over the head of the mayor to assure his cooperation with the Trump immigration agenda in his city.

You don't do that as a prosecutor. That is unimaginably bad abuse of that power.

We had the corroboration in the first instance. What do we have here?

We have his own DOJ colleague calling this effort a quid pro quo, calling it an improper offer of immigration enforcement assistance in exchange for a dismissal of his case. That was the deal, the arrangement that was reached.

And that colleague, the acting U.S. attorney for the Southern District of New York, then resigned rather than go through with the rotten deal.

Not enough corroboration? Trump's border czar Tom Homan admitted the scheme. He went on FOX News with Mayor Adams and said--I am quoting here, so excuse some of the language:

If he doesn't come through, I'll be back in New York City and we won't be sitting on the couch. I'll be in his office, up his butt saying ``Where the hell is the agreement we came to?''

The agreement--the agreement to hold back a prosecution in order to force the mayor to go along with the immigration agenda.

Not enough? OK. This nominee separately tried to confect a fake criminal investigation to allow an improper seizure of funds that Congress had appropriated, obligated, and disbursed to the Greenhouse Gas Reduction Fund.

You don't invent fake prosecutions. In this case, his office, the U.S. Attorney's Office, said: There is no there there. We can't sign that pleading.

He drove out the criminal chief. The rest of the lawyers also refused to sign. The U.S. attorney went in himself, all by himself, just a political appointee, no Federal prosecutorial experience, no idea what he was doing. The magistrate judge shot him down.

Each one of those things is a giant red flag in the Department of Justice, and they all attach to this case.

A principle that prosecutors follow is that you must not publicly disparage subjects of your investigation. It is enough that you have the law on your side and the power of prosecution to bring them to justice. You don't throw on a larding of disparagement. Bove's client in that matter, the EPA Administrator, made repeated public statements accusing the fund and its administrators of being ``corrupt'' and ``criminal'' and engaging in ``kickbacks,'' ``theft,'' and ``graft.'' These accusations are defamatory, per se, under the common law.

This person led these truly evil abuses of DOJ's powers. It is his nature.

Those are the problems with the nominee. Now let's look at the problems with the process that got him here. First, in the Judiciary Committee, he was prelicensed to refuse to answer questions. The committee, the majority, conceded something that Congress has never conceded before: that deliberative process and attorney-client privilege overcome our constitutional powers of oversight and advice and consent.

Senator Kennedy and I noted this in our bipartisan report on Executive privilege back in 2022. Here is our quote:

Congress maintains that all other components of executive privilege--

Besides Presidential communications, which was at issue--

that the executive branch recognizes--including deliberative process and attorney-client privilege--are not constitutionally grounded and therefore cannot supervene Congress's oversight authority.

To grease Bove through the committee, they threw all that history out the window. And having made that astounding concession, they then didn't even follow the rules for assertions of these supposed privileges, neither as to their scope where they apply and don't apply, nor as to what it takes to actually claim them.

These privileges need to be asserted, and the witness never actually asserted them. He probably didn't actually assert them because as a lawyer he knows they didn't actually pertain, and he would have been mocked and criticized for asserting those privileges in this circumstance.

He knew from the free pass he had been given not to answer questions that he didn't have to answer, and he didn't have to make the assertions. With his nonanswers blessed in advance, he hid behind vague claims of inappropriateness.

That is not a privilege; that is not a defense.

Attorney-client privilege and deliberative process privilege, even if they pertain here, don't apply to administrative decisions within a department. And deliberative process--indeed, any Executive privilege-- does not apply where the allegation is misconduct. We just went through the three instances of prosecutorial misconduct.

Again, from my report with Senator Kennedy, quoting the DC Circuit here:

The privilege ``disappears altogether when there is any reason to believe government misconduct occurred.''

The only Executive privilege that Congress does recognize also requires proximity to the President. It is not applicable in ordinary Agency administration, and the President must invoke it, and he didn't.

The Attorney General and the Deputy Attorney General even showed up at the hearing to give committee Republicans the eyeball. The result was a hearing that more resembled a racketeering from ``The Godfather'' than a nominations hearing from a circuit court of appeals judgeship.

One last point, while this mischief is going on in the Judicial Committee and on the Senate floor, something else is going on. This is a two-ring circus, and the second ring is over at the DC Circuit Court of Appeals where Trump Judges Rao and Katsas, over objection, stopped the court hearing into Bove's potential contempt in the deportation cases. Obviously, there in court, under oath, real answers would be achieved.

The administrative stay procedure those Trump judges use usually only last days. Justice Barrett recently chided a court for an administrative stay that lasted 2 weeks. These two Trump judges have blocked Bove's contempt hearing for 3 months.

If my colleagues keep rubberstamping Trump's lawless nominees, he will just continue lowering the bar, further degrading the judicial system.

This has the earmarks of a coordinated play, and I suspect very much that we have not heard the end of this as facts continue to come out in future Judiciary Committee investigations and in the contempt hearing of Judge Boasberg.

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