05.17.17

STATEMENT OF SENATOR PATRICK LEAHY (D-VT.), ON THE NEED FOR A SPECIAL COUNSEL

Pending before the Senate is the nomination of Rachel Brand to be the Associate Attorney General of the United States.  The United States.  Not of the President.  Her nomination to the third most senior position at the Department of Justice comes at an unprecedented time of chaos and upheaval – not only at the Justice Department, but also at the White House, the Federal Bureau of Investigation, and across much of this administration. 

The events of this past week have given me, and many members of Congress – Democratic and Republican – great concern.  All of us should agree that it is more important than ever that the Justice Department be led by public servants with independence and integrity. 

Unfortunately, President Trump’s Attorney General and Deputy Attorney General have failed this test.  I did not expect Attorney General Sessions to show independence from the President, which is why I voted against his nomination. 

But I had higher hopes for Deputy Attorney General Rosenstein.  Mr. Rosenstein’s role in the dismissal of FBI Director Comey and his willingness to provide pretext for President Trump’s interference in the Bureau’s ongoing Russia investigation has precipitated a crisis of confidence in the Department.

The Senate must take steps to restore the independence of the Department of Justice.  Unfortunately, I am not confident that Rachel Brand is up to the task.  Like so many of the President’s nominees, she carries a heavily skewed, pro-corporate agenda that would do further harm to the Justice Department and its independence. 

Ms. Brand has long championed deregulation and the rolling back of vital environmental, consumer, and labor regulations protecting the American people.  Ms. Brand has justified indiscriminate surveillance of Americans, and defended broad assertions of executive power.  She even refused to say whether she would recuse herself from matters involving the Chamber of Commerce and the Chamber Litigation Center, her current employer.  I cannot support a nominee who lacks an independent voice, or one who adds to the unprecedented conflicts of interest in this administration.  I will therefore vote against her nomination.

Every day seems to bring new, disturbing revelations involving this President and his administration.  Yesterday’s report that the President pressured former FBI Director Comey to terminate the ongoing investigation into Michael Flynn is extraordinary.  If true, the President’s conduct could warrant charges for obstruction of justice. 

The notion that the Russia investigation could be led by a political appointee of this President, who serves at the pleasure of this President, is preposterous.  Yet Senate Republicans have attempted to justify Mr. Rosenstein’s failure to appoint a Special Counsel.  Their arguments are wrong.  I want to take a few minutes to explain why. 

Every lawyer knows that when you are considering a legal question, you begin with the statute or regulation at issue.  The relevant regulation, found in the Code of Federal Regulations, is worth reading in full.  I ask that the regulation be printed in the Record at the conclusion of my statement.

The rule requires that an independent Special Counsel be appointed if three conditions are met. 

The first condition is that a “criminal investigation of a person or matter is warranted.”  This is not an open question in this instance – there is already an active investigation.

The second condition is met when an investigation by the Justice Department “would present a conflict of interest for the Department or other extraordinary circumstances.”  If Mr. Rosenstein, a political appointee, were to lead this investigation, he may be forced to investigate both his immediate supervisor, the Attorney General, and the President.  That is the definition of a conflict of interest.  That alone is enough.

But in this investigation, extraordinary circumstances abound.  Last week, the President admitted that he fired the official leading this investigation because of “this Russia thing.”  His Deputy Press Secretary then said, “We want this to come to its conclusion. . . . And we think that we’ve actually, by removing Director Comey, taken steps to make that happen.”  And yesterday, we learned that President Trump may have also pressured the FBI Director to close the investigation into Michael Flynn’s contacts with Russian officials.  If these are not “extraordinary circumstances,” then those words have no meaning at all.

The third condition is met when “it would be in the public interest to appoint an outside Special Counsel.”  I cannot recall a more serious national security investigation.  Russian interference in our election, possible collusion with the Trump campaign and administration, and the President’s repeated assaults on the rule of law have eroded trust in our democratic institutions like nothing I have seen.  And, according to the President’s own statements, this investigation has been repeatedly compromised by political interference.

Because all three conditions are met, the Deputy Attorney General does not have a choice in this matter.  It is not discretionary.  The regulation requires that Mr. Rosenstein appoint a Special Counsel.  Each minute that he refuses to follow the rule he further diminishes the integrity of this investigation, and of the Justice Department itself. 

I would ask anyone who still claims that a Special Counsel is not required to reconcile their opinion with the Justice Department rules.  We may disagree on policy matters, but we all agree on the supremacy of the rule of law, and that no person and no President should be above it. 

I know some Republicans have expressed concerns about the integrity of this investigation in public; and many others have in private.  At this critical time, it is not acceptable to remain on the sidelines.  We have a constitutional requirement to act as a check and balance on the conduct of the president.  That starts with joining the call for a Special Counsel.

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