Judiciary senators spar over Obama AG nominee
Nick Juliano
Published: Wednesday December 10, 2008

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Trouble is brewing over the confirmation of Barack Obama's Attorney General nominee, with a prominent Republican indicating the party may try to hold up Eric Holder's confirmation with questions about his involvement in a controversial pardon during the Clinton administration.

Sen. Arlen Specter (R-PA), the ranking member of the Senate Judiciary Committee, called for a delay in Holder's confirmation hearings because of troubling questions stemming from Holder's role in the pardon of fugitive financier Marc Rich.

This led the committee's chairman, Sen. Patrick Leahy (D-VT), to fire off an agitated letter accusing his colleague of making unreasonable demands.

Leahy said he was "confounded" at Specter's surprise that the Holder hearings had been scheduled for Jan. 8, two days after the 111th Congress convenes. Specter said Wednesday he didn't think the confirmation hearings could happen until Jan. 26, a week after Obama's inauguration, so Republicans could have ample time to review thousands of pages of documents and the nominee's FBI background check.

"My recollection is that your initial reaction on November 18 was that you were at that time already reviewing his record," Leahy wrote. "Of course, Eric is someone you and I both know well and have known and worked with for years."

Leahy noted that the Holder hearings were scheduled within a comparable time-frame of other Attorney General nominees. While word began to leak that Holder would be the nominee in mid-November, Obama made the official announcement last week, more than a month before the hearing's are scheduled.

Specter's attempt to delay the hearings marks a shift from earlier statements on Holder. Appearing on MSNBC on Nov. 19, Specter voiced concern about the Rich pardons but specifically said he would not obstruct confirmation hearings.

"Would I hold it up? No," He told Andrea Mitchell. "I would be prepared to move ahead very promptly with hearings. Move into the substance of the matter. Ask the important questions. Look for any documents that might be relevant.

"As fast as we can move through, I'm prepared to decide it one way or another," he continued. "I wouldn't hold it up."

It's unclear what changed in the three weeks since that interview aired.

Leahy reminded Specter of the many areas the two had worked together in the past and stressed the need to move quickly to confirm Holder.

"No one has to remind either of us how decimated the Department of Justice has been during recent years or how important it is that it be restored. I think you have called it dysfunctional, and said morale is in disarray," Leahy wrote. "We both know it is too important that it have its senior leadership in place without delay."

This video is from C-SPAN 2, broadcast Dec. 10, 2008.

Download video via RawReplay.com

A copy of Leahy's letter and Specter's floor speech are reprinted below:

Specter's speech:

“Madam President, I further sought recognition to comment briefly about the scheduling of the hearing for Attorney General designate Eric Holder. In looking toward the hearing process, I am looking for a very constructive engagement to determine the qualifications of Mr. Holder. There is no intent on my part or on the part of any of my colleagues on the Republican side of the aisle to engage in partisan sniping. As I say, we intend to be constructive and not destructive. We are looking to strengthen the Department of Justice.

“The position of Attorney General is an extraordinarily important position. We have seen that, during the administration of Attorney General Alberto Gonzales, stated candidly, the Department was not well handled. That is a candid statement and also a very mild statement.

“During the course of Attorney General Gonzales' tenure, there were so many situations where the Attorney General molded his views to accommodate his appointer, the President of the United States. A great deal that went on in the Department of Justice was partisan and not in the interests of the work of the Department or in the interests of the American people.

“We have seen, since 9/11/2001, a vast extension of Executive authority. We found the terrorist surveillance program was initiated by the President without consultation under the tradition of notifying the chairman, which I was during the 109th Congress, or the ranking member. We found there was an arrangement with the telephone companies to engage in electronic surveillance, again without notifying the chairman or ranking member of the Judiciary Committee and without notifying the intelligence committees of both Houses, as mandated by law. Further was the expansion of signing statements, all during the tenure of the Attorney General.

“Without going into the issues of politicization, they were rampant during the tenure of Attorney General Gonzales. I refer to an article, coauthored by the current chairman of the committee and myself, which appeared not too long ago in Politico, on October 28, 2008, where we said in part:

‘The Attorney General must be someone who deeply appreciates and respects the work and commitment of the thousands of men and women who work in the branches and divisions of the Justice Department, day in and day out, without regard to politics or ideology, doing their best to enforce the law and promote justice.’

“With respect to Attorney General-designate Holder, there is no doubt he comes to this nomination with an outstanding record, for the most part. Not without question, but for the most part. He has an excellent educational background from Colombia: undergrad and law degree, a trial attorney in the Department of Justice, an associate judge of the Superior Court of the District of Columbia, U.S. attorney, Deputy Attorney General, Acting Attorney General -- a very distinguished resume, which I have recited.

“But there are questions which have to be inquired into fairly, as already noted in the commentaries of the media on the editorial pages. There has been considerable publicity about the pardon of Marc Rich. There was a case involving Mr. Rich, who was a fugitive, who had given very substantial sums of money to entities connected to the President. The regular procedures for a pardon were bypassed. The Department of Justice was not consulted. The attorneys in the Southern District of New York, which was handling the Rich case, were opposed to the pardon.

“From my own days as district attorney of Philadelphia, where I dealt with celebrated cases involving people who were fugitives, who had fled, that is about as serious a matter as you could find and hardly one where there would be an expectation of leniency or pardon to wipe out the charge, eliminate the matter, while the defendant was in absentia.

“There was an extensive report filed on this issue by the House of Representatives Committee on Government Reform, the 107th Congress, second session. It is available for anyone to read. There are quite a number of very serious questions involving what happened with Mr. Holder and the people involved there.

“The concern that arises is why Mr. Holder lent the recommendation, which has been characterized as ‘neutral leaning in favor,’ in this context. I come to no conclusions on the matter. I approach this matter, as I try to approach all matters, with an open mind. But in an extensive interview with Mr. Holder he has presented his views. I don't think it is useful to get into the specifics as to the precise concerns which I raised and his precise answers. Let that await a day where we have a hearing and where Mr. Holder is in a position to speak for himself. But by analogy to the Gonzales tenure, I think it is imperative we be sure the Attorney General of the United States does not bend his views to accommodate his appointer; that the Attorney General does not bend his views in any way which is partisan or political, to serve any interest other than the interests of justice.

“As noted in the article cited in Politico, where you have the professionals in the Department of Justice -- they wouldn't even meet with attorneys for Mr. Rich, they thought it was such an open-and-shut case, and were opposed -- at least according to information provided. This is all to be brought out at a hearing. But to run counter to the views of the professionals is a major red flag which has to be inquired into and inquired into with some depth.

“Then we have the situation where Attorney General Reno recused herself on the issue of appointing an independent counsel to investigate alleged -- and I emphasize alleged -- illegal fundraising by Vice President Albert Gore out of the White House. There was the relatively notorious incident where the Vice President was at a meeting and drank a lot of ice tea and absented himself from certain parts of the meeting where he was not able to -- or had a rationale for not knowing certain things.

“I questioned Attorney General Reno in detail about that during Judiciary Committee hearings and she said:

‘Well, there just wasn't sufficient evidence.’

“She had disregarded a document, a note taken by someone present, because, as she said, it did not refresh that witness's recollection. I asked her about the doctrine of prior recollection recorded, which is a well-known exception to the hearsay rule. She denied knowing about it.

“I note a frown on the face of the Presiding Officer, who was a distinguished district attorney herself. Doubtless we could speak at length about prior recollection recorded. I mention that because of the curious circumstances of what happened there. There we had an assistant U.S. attorney named LaBella, who was asked to take on the job of making a recommendation. According to the information provided to me, he made a recommendation for an independent counsel and the professionals in the Department asked for an independent counsel, and it was overruled.

“I am not going to comment about Mr. Holder's role. Let him respond to that and let us take that up in due course. But here again is a potential situation where the interests of justice and objectivity were not followed in the highest levels of the Department of Justice when Mr. Holder was in charge, with the Attorney General, Attorney General Reno, having recused herself.

“There are many other matters which warrant inquiry, and I will not take the time to go into them now. They are referenced in a letter which eight Republican members of the Senate Judiciary Committee sent to Attorney General Mukasey, requesting information from the Department of Justice files. I ask unanimous consent that a copy of this letter be printed in the Record.

“When hearings were held for Attorney General Ashcroft, they were held from January 16 to January 19 of 2001. At that time, there were 2 days of testimony from Attorney General Ashcroft, and the committee heard from 23 outside witnesses. May I remind everyone that John Ashcroft was a well-known person to the committee. He had been in the Senate. He had served on the Judiciary Committee. We knew him very well. But that didn't stop a very full, detailed inquiry. It was not done in a rush.

“With respect to Mr. Holder's situation, we have in the committee some 86 boxes of archived committee documents relating to Mr. Holder's tenure in the Department of Justice. We expect those materials to increase very substantially when we receive materials from the Department of Justice and the Clinton Library.

“Similar document requests were made to the Department of Justice in the Reagan Library during the confirmation of Chief Justice John Roberts, and they yielded some 65,000 additional pages of documents.

“As of the present time, we have not yet received Mr. Holder's questionnaire, his nomination materials, or the FBI background investigation.

“I have taken the time to come to the floor to outline, very briefly, some of the issues. They are set out in more detail in the letter, which is now made a part of the record, to Attorney General Mukasey, asking for specific matters regarding Mr. Holder. There are other matters which are in the media which I think are better left for further investigation, even before the hearing, before there is any public comment about it. But we are looking at a very major matter.

“The Department of Justice has enormous responsibilities in the battle against terrorism and in the protection of civil rights. That is a balance which has to be maintained. There are real questions as to whether it has been maintained since 9/11. Those are matters for inquiry.

“There are very substantial matters to be inquired into on the Justice Department position on waiver of attorney-client privilege, which started with the Holder memorandum when he was Deputy Attorney General and then went forward to the Thompson memorandum and the McNulty memorandum and so forth. Also, there are major matters of legislation now pending on the subject of reporters' shield, where the Department of Justice has taken a view which I believe has to be modified by legislation if we cannot get some accommodation with the Department.

“That is a very brief statement as to the issues which we are looking for. As I look at this matter, it seems to me not realistic or fair to begin hearings before January 26.

“The week of January 19 is going to be occupied with the inauguration. And to have adequate time to prepare, it seems to me, that needs to be done. When we had hearings involving Chief Justice Roberts and Associate Justice Alito, consideration was made of the minority point of view, and extensive discussions were had, and there was an accommodation and agreement reached as to when the hearing was to be held. So we are looking at a serious matter and we have to do it right. It is going to take some time.”

Leahy's letter:

The Honorable Arlen Specter
Republican Ranking Member
Senate Committee on the Judiciary
152 Dirksen Senate Office Building
Washington, D.C. 20510

Dear Arlen:

As I hope you know, I honored your request and asked Secretary Rice to facilitate your 14-day trip to 10 countries from December 25 through January 7. Please do let me know who the other Senators are who will be accompanying you.

I also wanted to respond to your letter of last evening. I am a bit confounded as to why you are surprised that the Holder hearing was noticed for January 8. As I have said repeatedly from the time reports of his likely designation began appearing in the press in mid-November, I thought we should move promptly. It hardly came as a surprise when the President-elect announced that Eric would be a key part of his national security team at the designation announcement on December 1. My recollection is that your initial reaction on November 18 was that you were at that time already reviewing his record. Of course, Eric is someone you and I both know well and have known and worked with for years.

I made no secret of the need to move promptly to schedule this hearing from when I spoke about Eric Holder on the Senate floor on November 20, when I held a press availability on December 1, and when my chief counsel met with both your staff director and your chief counsel last week, I was hoping to hold the hearing on January 7.

Initially, our staffs discussed possibly proceeding before Christmas if the designation were made around Thanksgiving. We commence the new session on January 6, but that day will be devoted to swearing in and recognizing the returning and newly elected Senators. When you extended and expanded your travel plan to include January 7, my staff made sure yours knew that such an extension would mean that you would miss the Holder hearing. Your staff indicated that you would be calling me. You did not, but sent back the message that you chose to extend your travel through January 7. I then learned that the Senate Republicans are planning a Republican caucus retreat for January 7. I respected your desired travel plans and the Republican Senate retreat by postponing the start of the hearings to January 8.

I have sought to accommodate your interests on many occasions. I scheduled field hearings for you in Pennsylvania on foreclosure and health care mergers issues, and worked hard to ensure fair treatment and confirmation for nominations in which you had a personal interest. We worked in a bipartisan fashion last Congress to investigate the politicization of the Department and to expedite nominations to restock the leadership ranks at the Department after nearly every top official, including the Attorney General, resigned in the wake of the scandals. I hope you will now join me to complete the hard work that must be done to right the ship at the Justice Department. I will continue, as I always have, to work closely with you and Senators from both sides of the aisle to schedule consideration of both executive and judicial nominations and to make progress on our legislative agenda. I look forward to working with you in the next Congress.

When Michael Mukasey was designated to be Alberto Gonzales’ successor last year, you urged that we “move promptly on the confirmation proceedings.” I did not delay in scheduling that hearing, even though many were suggesting that I do so. Instead, I proceeded promptly with a hearing 30 days after the nomination was announced. For that, I received criticism from my side of the aisle.

Other Republican members of the Committee, at that time -- when President Bush was doing the designating -- urged speed and observed that the average time to a confirmation hearing for an Attorney General was three weeks. They called for moving the nomination “as quickly as possible” given the need for new leadership at the Justice Department, and a member of the Republican Senate leadership called for proceeding “immediately.”

After the contentious 2000 presidential election, I also proceeded promptly to hold the hearing on the designation by President-elect Bush of John Ashcroft to be Attorney General. John’s designation was not formally announced until December 22, but I held his hearing 25 days later. I do not think President-elect Obama should be penalized for proceeding promptly with transition and designating his Attorney General selection three weeks before President Bush had.

I am sure you recall during your first year in the Senate how promptly Chairman Thurmond proceeded on the designation of William French Smith to be Attorney General at the beginning of the Reagan administration. The Committee completed its consideration of President Reagan’s lawyer to be the Attorney General of the United States with a vote on January 16, even though he was not designated until December 11. We have known about Eric’s designation officially for 10 days, and unofficially for more than three weeks. The Committee would have to vote on January 6, the first day of the new Congress, to approximate that timeline.

President Carter’s first Attorney General, Griffin Bell, was not designated until December 18, yet his hearing and Committee consideration were completed by January 19. Approximating that timeline would have the Committee voting before the new Congress even comes into session.

Recognizing the importance of the Attorney General of the United States, our Committee has customarily held hearings on a new President’s pick before inauguration. That was true of Attorney General Griffin Bell, Attorney General William French Smith, Attorney General Ashcroft and should hold true for the next Attorney General.

Other Attorney General nominations, which you and I have considered together, include that of your fellow Pennsylvanian, Dick Thornburgh, whose hearing was held 24 days after he was announced. He remained in office when Vice President George H.W. Bush was elected President. When he left the post toward the end of that administration, we proceeded with Bill Barr, whose hearing was held 25 days after he was announced. The beginning of President Clinton’s administration was unusual, but when he settled on Janet Reno, her hearing was held 26 days after she was announced.

I want to be as fair to President-Elect Obama and his nominee as we have been to others. I held hearing on President Bush’s first Attorney General 25 days after he was designated and on the current Attorney General 30 days after he was designated. I have noticed the hearing for the next Attorney General 39 days after he was officially designated and 52 days after your November 18 statement that you were already at work reviewing his record.

The need for new leadership at the Department of Justice is as critical today as it has ever been. I want to respect the commitment made by the outgoing President to make the transition to the new administration a smooth and speedy one. No one has to remind either of us how decimated the Department of Justice has been during recent years or how important it is that it be restored. I think you have called it dysfunctional, and said morale is in disarray. We both know it is too important that it have its senior leadership in place without delay.

The election of Barack Obama and Joe Biden, and the President-elect’s selection of Eric Holder, are an historic opportunity for the country to move past the partisanship of the past decades and work together to solve the nation’s problems, protect against serious threats and meet our challenges. We both know these men. They have long and distinguished records of service and accomplishments. They can make a real difference if we join with them, not as Democrats or Republicans, but as Americans.