Leahy Floor Statement On The Nomination Of Brian Benczkowski

Today, the Senate is considering one of the most troubling executive branch nominations that this president has made to date: the nomination of Brian Benczkowski to lead the Criminal Division of the Justice Department.  It is enough to oppose Mr. Benczkowski’s nomination because he is objectively unqualified for this important position.  But beyond that, there are compelling reasons to believe that it would be uniquely reckless to confirm him to this position.

Speaking about Mr. Benczkowski’s lack of qualifications for this role is not meant to denigrate.  Many of us know him from his service in the Judiciary Committee as the staff director for then-Ranking Member Jeff Sessions.  But the fact is, this nominee to head the Criminal Division has virtually no criminal law experience.  He has never tried a case.  He has never served as a prosecutor.  And he has almost zero courtroom experience.  Instead, his experience has been to serve as a political aide to various officials.

As a former prosecutor, I know that there is no substitute for actual courtroom experience.  For the last several decades, every head of the Criminal Division – perhaps the most important litigating arm of the Justice Department – has had substantial prosecutorial experience, with the exception of one individual whose nomination I similarly could not support.  This should not be a partisan issue.  There are countless qualified prosecutors the president could select.  For this reason alone, the Senate should not consent to Mr. Benczkowski’s nomination.

But there are two other reasons Mr. Benczkowski should not be confirmed.  First, he has demonstrated—at a minimum—exceptionally poor judgment when it comes to perhaps our nation’s most critical ongoing national security investigation: the Russian government’s attack on our democracy.  After serving on Trump’s transition team, Mr. Benczkowski represented a Putin-connected Russian bank, Alfa Bank, regarding its bizarre server communications with the Trump Organization during the height of the presidential campaign. Alfa Bank was at the very center of scrutiny into ties between the Trump campaign and Russia, even making an appearance in the Steele Dossier.  And yet Mr. Benczkowski took on Alfa Bank as a client on an issue related to the Russia investigation at the same time he was being considered for a senior position in the Trump Justice Department.  In fact, he continued to represent this Putin-connected bank until the day he was formally nominated to lead the Criminal Division.  Giving Mr. Benczkowski the benefit of the doubt, this episode demonstrates at least an embarrassingly poor sense of judgment.

Finally, I am also greatly concerned that Mr. Benczkowski has refused to recuse himself from matters related to the Russia investigation or the Steele Dossier.  As Senator Durbin and Whitehouse have warned, as head of the Criminal Division, Mr. Benczkowski would therefore have visibility into investigations of individuals related to the Trump campaign, and he could serve as a conduit of information to the attorney general about these sensitive matters.  According to the Department of Justice, it is possible that the Special Counsel’s office “will seek approvals from the Criminal Division as required . . . or may simply want to consult with subject-matter experts in the Criminal Division as appropriate in the normal course of department investigations.”  Mr. Benczkowski could even be in a position to share secret grand jury information directly with the president.

What is also concerning is that if Mr. Benczkowski were to be confirmed and Deputy Attorney General Rosenstein were then to be removed, the president – under the Federal Vacancies Reform Act – could install Mr. Benczkowski as the Acting Attorney General, with respect to the Russia investigation.  Mr. Benczkowski would thereby gain direct control and oversight over the Special Counsel’s investigation – and could even decide to terminate the Special Counsel’s probe. 

Mr. Benczkowski is unqualified for this role by any objective measure.  The only apparent qualification that Mr. Benczkowski has is his close relationship with, and political loyalty to, the attorney general and the president.  In fact that is likely the very reason he was nominated for this critical position.  That is all the more troubling given his terrible judgment with respect to the Russia investigation.

Many of my fellow senators across the aisle have stated their commitment to ensuring that Special Counsel Mueller is allowed to carry out his investigation independently and without political interference.  I hope that they will keep this commitment in mind when considering Mr. Benczkowski’s nomination.  And I would hope that they join me in voting no.

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