tv Special Counsel Independence Integrity Act CSPAN April 28, 2018 12:24pm-1:40pm EDT
landmark cases companion book and the landmark cases podcast. members of the senate judiciary committee approved a bill that would protect the special counsel from being fired. the measure passed by a vote of 14-7 some republicans supported. mitch mcconnell said he will not bring it to a folk on the senate floor. this portion of the meeting is just one hour.
i have much longer comments i am happy to make after we picked this up and vote. i think this is an important day, and i am grateful that the concerns that have been expressed by some members as you laid out in your opening remarks the current state of the law is this is an important thing for us to do as a body, an important day for us as a committee. i hope we will move expeditiously to move on the bill. >> senator graham. i want to compliment you for allowing this day to come about. we are not judges. i feel good about it. exactly on point but i
think covers the matters pretty well. we have experts say it would pass muster. the majority leader agrees there is a need for this dell. you are the committee chairman, and we have decided the best up this matter, and we are. in terms of policy, i think it is good policy that will stand the test of time. specialto have a counsel statute in congress and that has lapsed, people are legitimately concerned that you wind up at v. i can understand people's reluctance to have a prosecutor that can go anywhere and everywhere, but it was a conflict of interest as to attorney general sessions. it was clear to me that he did not look into any allegations against the trump campaign as he
was part of it. to those who think he made a bad decision, i could not disagree with you more. as a lawyer, as the attorney general he had no other decision. the only thing he could do is recuse himself because you cannot investigate the campaign you are a part of. mr. rosenstein i think was a good pick by the present. best president. he had as far as i am concernedi think he's doing a good job. i think he has given mr. mueller a charter and he will report back to us when this is over about did he stay within his charter. that is why i like the grassley amendment. i think he's the right guy at the right time. to the public, what can the president do? we are a nation of laws and this is what this is about to me,
the rule of law today, tomorrow and forever. that's what makes us different from other countries that we hear a lot the president cannot personally fire mr. mueller. the president can fire the person who appointed mr. mueller because that person, mr. rosenstein, is a political appointee. and under our laws and tradition pretty much the president can fire people who are political appointees for any reason. can't be a corrupt purpose but we allow the president to pick and choose his team and to fire people for any reason when they're a political appointee. but if you're a civil servant working for the government and not a political appointee you can't be removed but you have due process protections. what is the special counsel? the special counsel is not appointed by a political -- by the president. they're appointed by somebody who is a political appointee when there's a conflict of interest. the
reason we have a special counsel is because of the conflict of interest regarding the 2016 election. almost all special counsels are involved in high-profile matters or they wouldn't exist. so what i've tried to do with my colleagues -- senators tillis, booker and coons -- is to -- find protections that is pretty -- if a special counsel is fired now, today or any time in the future, appointed within the department of justice that special counsel can petition a court to look at whether or not they removed under the regulatory requirement of the department of justice for removal. no more than that. you get a chance to petition the court to see if your firing fell within the department of justice regulations which senator feinstein has read. conflict of interest. other good cause. to me, that is a check and balance that makes sense.
all of these cases are going to be controversial. he is not a civil servant. in the true sense of the word. they are not a political appointee, either. i think the public would be well served if there was a judicial check and balance. that -- for the special counsel to petition the court to look at their dismissal. that is all we are asking. i think that makes perfect sense . why are we doing this? the rule of law in america stood the test of time in this regard. no one is above it. can't say that in russia. can't say that in a lot of places but you can say in the america. we've had democratic and republican presidents challenge for their conduct in office and before office. nobody in this country is above the law. now as to president trump, i feel comfortable he is not going to dismiss mr. mueller because he can't and he would
understand what would happen if he went down that road unless there's a good reason to fire mr. rosenstein. all of us on the republican side have been asked about this. continuously. i have yet to find one republican it -- who thought it was a good idea to stop this investigation. where it goes, i don't know, mr. mueller has a reputation of being professional and fair-minded and i think the rule of law would be well served to allow him to do his job without political interference. now he can be criticized, mr. starr was criticized extensively when he was the special prosecutor in the clinton case. that is part of the politics of all of this but i would imagine if there had been an effort to remove mr. starr, people would have been doing what we're doing our side. so it's not about mr. robert mueller, it's not about trump. it's about the rule of law and it is going to stay in place as
robustly as possible as long as i'm here with my colleagues. that's what this is about. it's about a system for today, tomorrow, and forever that makes sure that nobody, even the president, is above scrutiny, the scrutiny can be scrutinized but there needs to be a check and balance because when we put somebody in this spot, they're in a political hot seat. that's the nature of the special counsel and we would be well served as a nation to have a check-and-balance on that situation and i will talk more about why i think we need a second special counsel but i'll save that for later, i just want my colleagues to know that i join you in preserving the rule of law to make sure that mr. mueller and future special counsels have an outlet to ask court review if they think something was done on towards them -- there are a lot of
aspects of the 2016 election that cry out for a second investigation and none of you have lifted a finger to do anything about it. we'll talk about that later. >> i would like to go to consideration of amendments, if there is any objection? who -- isn't any objection. who would like to offer an amendment? if nobody wants to offer an amendment, can we go to final passage echo senator lee? >> i would like to offer an amendment. >> please proceed. >> are there copies? >> mr. chairman as i offer this , amendment i'd like to >> was it filed? has it been filed? >> yes, it's been filed. let me pull it up.
it's amendment caption alb-18495. >> we have copies? >> yes. >> this is the cornyn amendment? >> yes, and i'm offering it. we have a couple issues here. with respect to the underlying legislation, we're told that if president trump fires special counsel mueller that it would spark a constitutional crisis, one that threatens the rule of law in america. not content to wait, the committee's solution apparently is to do the job ourselves by advancing the legislation we're considering today. legislation to which my amendment responds. there are
two constitutional provisions at issue by the underlying legislation and that i try to address through my amendment. the first is article two's vesting clause which provides the executive power in the united states government shall be vested in the president of the united states. the second is the appointments clause which provides that the officers of the united states must be appointed by the president and confirmed by the senate. let's start with the vesting clause for a moment. the text yields a pretty simple intuitive but very powerful rule which is that the president has ultimate authority over all purely executive functions. therefore any attempt to restrict that authority vested exclusively in the president is unconstitutional. both the graham/tillis bill and chairman grassley's amendment violate this command by infringing on the quintessentially executive power -- to conduct criminal investigations and to prosecute or to make decisions as to
whether to prosecute. now the primary transgression in these bills is that they prohibit the executive from firing a special counsel except for cause. as a matter of black-letter law, the applicable cases "meyers v. united states" and "humphries/executor " establishes that the president has the authority to fire officials who exercise purely executive functions while at the same time congress can limit the president's removal power only with respect to officers who exercise quasi-legislative or quasi-judicial authority. the exercise of prosecutorial authority is the canonical quintessential executive function. restricting the use of that power, including by limiting the president's ability to terminate someone exercising that power is not permitted and fundamentally at odds with article two of the constitution.
as a matter of first principles, the vesting clause ensures the president is ultimately account -- accountable to the voters for the conduct of the executive branch. this theory falls apart if the president is powerless to control the executive branch. yet the entire purpose of this legislation we're considering today is to limit the president's power to control the special counsel by removing the power to remove the special counsel. now, while it might be tempting to regard this failure to comply with the separation of powers mandated by the constitution as abstract, academic, victimless, it almost certainly will have a significant impact on liberty. as then attorney general robert jackson wrote back in 1940, before he went on to the supreme court, he said "the prosecutor has more control over life, liberty and reputation than any other person in america." that's
even more true when the prosecutor cannot be fired for exercising that same power unwisely. chairman grassley's amendment has additional defects. it requires the attorney general to appoint a special counsel in certain circumstances and announces that the special counsel is not, in fact, subject to the day-to-day supervision by the attorney general of the united states nor -- united states. nor is this person subject to the acting attorney general of the united states or the removing the special counsel from the normal chain of command within the executive branch conferred upon the president by the appointments clause and the vesting clause. i understand these provisions codify existing department of justice regulations. but there is a very meaningful difference between internal regulations, procedures
adopted by an executive branch agency like the department of justice and statutes that we put in place that purport to tie the hands of the executive within the executive branch of government. it's very difficult, it's a very different thing what we're trying to do here which is for congress to mandate how it is that the executive branch discharges these functions. but perhaps the most remarkable and troubling aspects of chairman grassley's legislation concern the reporting requirements to congress. the grassley amendment requires the special counsel to submit a report outlining the investigation's findings and explaining the decision to prosecute or any decision not to prosecute. this is an unexplained departure from the department of justice's existing regulations which require the special counsel to provide the attorney general with a similar
confidential report at the conclusion of the investigation. at a practical level this bill provides no way to enforce this requirement and i believe were this legislation to become law the executive branch would not in fact comply with those provisions in any event because they're manifestly dangerous, they're reckless. imagine the special counsel even only for a short period of time believes an individual may have committed a crime and ultimately concludes that the person should not be charged. this legislation would require the special counsel to reveal to congress and effectively to the entire world the identities of targets of an investigation. i thought there was a consensus in the committee that james comey should not have publicly announced that the fbi would not charge anyone in connection with the clinton e-mail investigation. at least that was my sense last time we discussed this within the
committee and yet this legislation would be hard-pressed to find a better example of how ignoring the separation of powers can end up affecting the lives of the american people, so not an abstract injury to the constitution we're talking about. the supreme court, of course, upheld the independent counsel statute in "morrison v. olson" and that decision has never formally been overruled but most lawyers do not regard "morrison" as good law and the supreme court would likely not reach the same conclusion today. just as the supreme court would not likely reach the same decision about a lot of other things that have been the decided in the past. "korematsu v. united states" is a case that was decided wrongly. it's never been overruled and yet i suspect , i am certain in fact that were we to consider a similar policy
today every one of us would stand forward and say this is unconstitutional. something can be unconstitutional even if the supreme court in the past has wrongly designated it as constitutionally permissible. in "free enterprise fund versus public company accounting oversight board" the supreme court reaffirmed that restrictions on the president's article two authority were permitted only in the context of independent agencies that do not exercise purely executive functions and with respect to the civil service. importantly, special counsel mueller doesn't fall into either of these categories. there's not even an argument he has civil service protection nor is there an argument he fits into one of these categories of quasi-legislative or quasi-judicial authorities. the dissenters in "free enterprise fund" did not disagree with that premise and there are strong reasons to think justice kagan and justice gorsuch, neither of whom were on the court when "free enterprise fund" was decided would have voted with
justice scalia in his classic dissent in "morrison v. olson." justice kagan has herself said that justice scalia's masterful dissent in "morrison" was "one of the greatest dissents ever written and every year it gets better." this is based on the understanding that increasingly people have realized on both sides of the ideological spectrum, on both sides of the political continuum justice , scalia was right in his dissent in "morrison v. olson." in fact, most legal scholars and commentators across that same spectrum think "morrison" is not good law. professor aquila mar has testified as much in front of this very committee and he's joined by a lot of other professors who don't exactly align with republicans on many issues. the appointments clause provides an independent reason to question these bills. in
"edmunds v. united states" the supreme court concluded inferior officers who need to be presidentially appointed and then need to be confirmed by the senate are officers whose work is directed and supervised at some level by principal officers. share if these bills prevent the attorney general from firing a special counsel because the special counsel has acted unjustly or perhaps unwisely then it's difficult to contend that the special counsel's work is directed and supervised by a principal officer in any meaningful sense. the power to remove is the power him to control. and if you truly are supervising someone, you have the ability to stop them. you have the ability to remove them from the position they occupy if they exercise that power wrongly. now i understand the demands of politics, but that's no excuse. every member
of the senate swears an oath to uphold and protect and defend the constitution of the united states and that oath means we're duty-bound to seriously personally assess the constitutionality of legislation we consider and to vote against legislation we team unconstitutional. merely advancing this legislation from committee unfortunately shows that the political demands of the constitution may somehow trump the constitution. that's especially unfortunate because there is a better alternative. the amendment that i am introducing sends a clear signal that the president should not fire mueller and does so without inflicting damage to the constitution. and it acknowledges these points that i've made with regard to the president's power under the appointment clause and the vesting clause. with that, mr. chairman, i offer up this amendment. >> before i call on senator tillis, i hope we can kind of
limit debate to a couple of points of view on each side of the amendment. we have six or seven amendments filed. >> thank you, mr. chairman. for the last three years i've been on this committee as a nonattorney, every once in a while i wonder whether i wished i'd gone to law school and became an attorney and senator lee's comments make me glad that i didn't because i don't think there's any way i could match him on the arguments. in fact, it sounds like the arguments that may go before the court when equal numbers of people are on either side of the issue. back when i was speaker of the house when we would pass certain bills to try to assert legislative authority versus the executive branch i would have meetings like these in my office where it wasn't clearly decided. i never allowed a bill to advance where i think it was unconstitutional or inconsistent with the state constitution but i think this is an issue that's going to be debated. it may open
up what senator lee asserts is a bad law decided by the supreme court but let me tell you the main reason why i have a problem with this amendment aside from the fact that it guts the underlying bill we hope to get passed today is that this sense of the senate makes this about mueller. i didn't go about this bill because of mueller. i became educated on the potential risk as a result of the activities of last august, that's why i decided to file the bill, but i'm trying to create law that has enduring value. it doesn't reference special counsel mueller. it tries to assert this institution's authority. we're members of the senate. we're stewards of the senate, we're stewards of the congress. we should always be looking for ways to assert our authority and every once in a while if we go outside of the
bounds and the supreme court will check that, but i don't think it's our job to be scotus, i think it's our job to figure out ways in which we can have some control, increased transparency and accountability. our bill isn't about mueller. i would fully expect there will be some people that are motivated primarily because of the special counsel but i'm looking forward to 12 years from now, 16 years from now when maybe we have a similar circumstance and this bill becomes law and we're going to have had some say in exactly how that special counsel is handled and for that reason i'll be voting against the amendment. >> can we vote on the amendment? senator lee? >> first of all, to say this legislation is not about mueller goes against pretty much everything that i have ever heard anyone say about it ever and so let's not pretend that it's not. my amendment does two
simple things, it just recognizes it's the sense of the senate that the senate should not be resurrecting unconstitutional barriers -- unconstitutional provisions that interfere with the separation of powers and that robert mueller should be able to finish his investigation in a timely manner. again, there is no argument here that he is a protected civil servant. there is no argument here that he is another type of officer wielding quasi legislative or quasi judicial powers, therefore, he's got to either be a superior officer or an inferior officer who serves subject to the supervision of a superior officer. that is within the president's domain. that's why i filed this amendment and i encourage my colleagues to vote for it. >> after senator hatch i hope we can go ahead. go ahead, >> i'd first like to say that i appreciate your work and the
work of other members of this committee on this legislation. this is a thorny issue and i recognize we're trying to do the right thing here. from the earliest days of the mueller investigation i have said -- can we get that to work? >> put a quarter in it. [laughter] >> i will try to talk louder. >> it surely won't be graham's quarter, i will tell you that. [laughter] >> that is good. >> it is working now. i am familiar with senator graham, too. >> put a quarter in him. >> from the earliest days of the mueller investigation i've said the investigation should be allowed to run its course. i think that's in the best interest of both the president and the country. firing mueller would cause a firestorm and bring the administration's agenda to a halt, it could even result in impeachment. i think we're right to convey a strong message to the president that he should not fire robert mueller. i've said that many times and i've joined my colleagues today
in co-sponsoring this resolution that says exactly that, but in seeking to protect mueller and to impress upon the president the crucial importance of allowing the investigation to run its course, it's important that we not overstep our constitutional authority. i applaud the impulse behind today's special counsel legislation, but i cannot support it because i believe the bill is unconstitutional. prosecution is a core executive function, perhaps the core executive function and the constitution commits that function to the executive branch. efforts by congress to constrain or control executive branch authority over prosecution trans guess the separations of powers and bring congress into direct conflict with the constitution. we've been down this road before. congress passed independent counsel statute in response to the excesses of watergate and it was a mistake. justice scalia's
famous dissent in morrison versus olson laid out the litany of reasons why that law was unconstitutional. justice scalia's central insight that prosecution is a core executive function and the congressionally created restraints sap the political accountability that must be present in all prosecutions was ultimately vindicated. congress allowed the independent counsel statute to expire in a bipartisan fashion. morrison v. olsen has not been overturned but there is widespread agreement today that it was wrongly decided. i for one think justice scalia was right and that is why i do not find compelling the arguments that the special counsel bill is constitutional because it is consistent with morrison. morrison was wrongly decided and congress should not compound the court's error in morrison by crafting new constraints that similarly transgress the separation of powers. removal of
requirements for officers who exercise purely executive power such as prosecutors are constitutionally suspect. so, too, are judicial review provisions that allow courts to second-guess the reasons for removing such officers and even to reinstate such officers if the court so decides. to be sure the president should not fire robert mueller and it is entirely appropriate for congress to formally convey its views on this subject to the president. but it is never -- it's never appropriate for congress to contravene the constitution's separation of powers. you cannot protect the rule of law by violating the supreme law of the land and for that reason i will oppose today's bill but i ask to enter into the record the "wall street journal" op-ed that i authored. >> it will be entered. senator coons. >> thank you, mr. chairman. i have lengthy remarks by way of
debate about whether or not morrison is good law, whether or not the description offered about the constitution's appointment power >> can you put that in the record? >> i very much look forward to putting it in the record. i will simply say one sentence, that the d.c. circuit in a recent decision said that morrison and i quote remains valid and binding precedent. i also think it's important to remember we are not dealing with the independent counsel statute, this is a much more modest statute and were we to adopt the resolution offered it would remove and gut the carefully crafted amendment offered by the chairman that includes provisions on transparency and oversight. i urge all my colleagues to vote against this amendment. >> sen. hatch: senator booker -- >> just unanimous consent to put the scalia opinion in morrison in the record. i think that it would be disastrous for the nation to fire mueller and it would be politically suicidal
for the president and yet the scalia opinion many of us feel that we're bound by it. i think this bill is unconstitutional, but protecting mueller is a great instinct and it would be politically disastrous for the president to act. if i could ask unanimous consent. >> without objection so ordered. senator booker. >> i just want to correct for the record i've consulted with senator coons and he meant he urges his colleagues to vote no. i'm so sorry to my ranking member. i consulted with senator coons and he intended to say that he urges his colleagues to vote no on the amendment. i know he respects senator lee but he was not persuaded by the argument he presented. i want to reiterate what my colleagues said. senator lee has had much more experience practicing law than i have and i went to a school of philosophy, the yale law school, not quite the great school that he attended. but i do want to say that the dissent
that has been talked of, you spent some time with the dissent and read it has to do with the independent counsel statute, talks about many different points of intrusion, only one of which applies here and as a guy who has watched the history of our supreme court for a long time i agree with you, i would not want the plesi decision to -- plessy decision to hold. there's times that the supreme court overturns decisions but the concept of starry decisive this court and other courts have upheld the majority opinion 7 to 1 in morrison. this is a very distinct rule that does not -- is not covered by the full intent of that dissent and i think -- and i encourage and am grateful for senator sasse asking for it actually to be put in the record. i hope my colleagues will read that dissent. it does not apply fully here except for one point which
is the idea of the unitary executive, but even that i ask people to consider that the presidential power does not have -- is not extreme and unless we throw out all of the for cause elements of their ability to fire and remove especially inferior offices, this bill under that pretense -- this amendment under that pretense is to me constitutionally valid. and as you said quite eloquently, sir, in your opening remarks, let's do our job and let's allow the supreme court to do theirs. i've been spending a lot of time since i was privileged enough to come on this committee to reread the federalist papers, to focus on our founders and their intent and what's been stunning to me is how much we complain about the partisanship of our era. the partisanship at our founders' era, especially in the early days of our republic was extreme. to my knowledge we have had no duals, we have had no
canings here in this body and this has been -- i heard one of my colleagues whisper not yet. [laughter] but i just have to say this has been one of the more privileged moments i have had as a united states senator. chairman, your team has been extraordinary in the way they have worked with the four sponsors of this legislation. it is a moment in time where, like our founders at their best, we pull ourselves out of historical -- we begin to look at the long frame of history. i really want to reemphasize the admonition that senator tillis gave this whole body earlier and i took it as very pointed advice, that this should not be a politicized moment. this is not about one president in this point in time. looking into the future it is really important that should a president of the united states or their associates be under investigation by the special
counsel, that there are reasonable checks and balances on the power of the president to undermine the rule of law and such an investigation. i really believe this can be a point where this committee like our founders did at times pulling themselves out of the politics of the moment and looking at the longer story of our country. we could do something here today that could provide common sense pragmatic checks and balances to executive authority at a time that i've watched in congress, especially on things like the authorization to use military force, slip away from the article 1 branch of government to the article 2 branch. it is my hope that my colleagues understand that this is a very modest step not openly at a time where some of us might believe it may be needed in terms of sending a signal to the president, but at a time that we look into the future and can virtually imagine a time when this would be needed. i want to conclude with this point, this
has been on both sides of the aisle and this committee, where -- in this committee where staffs, where principles have come together and worked in a coordinated fashion to produce something that i think is not just needed in the moment, needed in the long-term, but i do believe the thoughtfulness and way we've crafted this narrowly will withstand constitutional muster. but that's not our job. our job is to do the best we can in this moment in crafting legislation and if this has a supreme court challenge, so be it. thank you. >> the clerk will call the role. on the lee amendment. [calling roll]
glad i am on the senate judiciary committee. i think this is an important role this committee plays. while i disagree with the remedy prescribed, i do appreciate the chairman bringing this up and letting the committee debate i t. this is an important topic. i join my colleagues in their concern over russian interference in the 2016 election. because of this, i continue to believe it is in the best interest of the country that the special counsel be allowed to complete his investigation. i believe we are in agreement on that. director mueller should be allowed to finish his work. but that is not what we are considering here today, in my view. i agree with the eloquent arguments made by our colleague senator lee and
senator hats. in regard to the constitutionality. i agree with senator lee, we take an oath to uphold the constitution. that is the -- no different from the judiciary. marbury versus madison did not erase independent obligation to assess the constitutionality of legislation ourselves or it that is the first reason i will vote against the legislation. because it is unconstitutional. i think it is unnecessary. the president is not going to fire director mueller because of the repercussions of doing so would be disastrous for his presidency and for the country. this bill will not be taken up on the senate floor. the house will not pass it. the president will not find nor -- sign it nor should he. it is instructive to go back and look as i have at the congressional research service history of the
independent counsel statutes and why we have ended up with a special counsel that is provided for under department of justice rules. others have talked about the supreme court president. it -- precedent, i think it is just as time to look at why there was a bipartisan consensus in 1999 to let the independent counsel provision expire. senator durbin made some comments and i agree with him, it was wise to let it expire because of the excesses of the clinton investigation -- -- impeachment investigation. others felt like the iran contra independent counsel ran rogue beyondended way too far the authority under which the independent counsel was created in the first place. i fear that if we were to passes
legislation and if it were to magically become law, we would be resurrecting many of the problems with the independent counsel provision for democrats and republicans alike agreed in 1999 should expire. i think we do have an toependent responsibility assess the constitutionality of the statute. this bill will not be taken up on the senate floor. the house will not pass it and the president will not sign it. is topropriate remedy offer a resolution expressing the sense of the senate. i cannot in good conscience sacrifice what justice scalia stated was the single and greatest most important guarantor of our liberties -- i mean the separation of powers
because it happens to be politically expedient. i'm not judging the motivation of my colleagues. i cannot do it. believing as i do that it is unconstitutional. i want to reiterate what we all believe, the director mueller should be allowed to complete his work in due course. thank you, mr. chairman. >> you will speak after the vote. >> we will call the roll on final passage. >> no, >> i. >> no >> no >> aye >> no >> aye >> no >> aye >> aye >> aye >> aye >> aye
>> aye >> aye >> aye >> aye >> aye >> aye are 14 aye -- >> 2644 will be reported to the floor. i will call on senator leahy. -- i will call on senator leahy. then durbin. is there any other republican who wants to speak? >> thank you, mr. chairman. i will put my whole statement on the record. as the most senior member of the senate, i feel obligated to share my perspective today. i'm a lawyer, former prosecutor
as are many on this committee. during my four decades in the senate, both republican and democratic administrations, i have never before seen career law enforcement officials so relentlessly attacked by our government. i've never before seen critical national security investigations so blatantly politicized. never. in 44 years. frankly i have never been so concerned that the walls protecting the independence and integrity of our law enforcement institutions are crumbling. our nonpartisan law enforcement institutions are a hallmark of our republic. it sets us apart from so many other nations around the world. eerican democracy
ndures because we empower these institutions to uphold the rule of law and pursue justice with no regard to who is in power. laws and a nation of not of people. i think when these institutions are under attack as they are today, this committee needs to -- has to act. -- special counsel's ability to finish his job cannot be subject to the latest tweet or hairtrigger impulse of the president. i'm hopeful that a bipartisan stand may prevent us from waking up to a tweet storm that sends us careening towards a constitutional crisis. i do not say that lightly. i have thought about this. i sat at my farmhouse in vermont
thinking about it. -- i sat in -- i sat in my farmhouse in vermont thinking about it. i was at a meeting with the attorney general yesterday. this legislation represents the best of the senate. members worked in good faith on a difficult issue. they sought common ground, republicans and democrats, for the good of the nation. i want to express my appreciation to bill's sponsors, to you mr. chairman, and senator feinstein for working together. the work is not done. we have a strong, bipartisan vote today. i hope the majority leader will votewith us to bring this on the floor. we have to understand. we are here for a time. other senators will replace us. the constitution continues. the country continues. checks and balances in our country
continue. membersto stand up as on that and when something is not done right we have to say so. i will put my whole statement on the record. i've years in the senate never been this concerned. thank you very much. >> sen. graham: senator durbin. >> thank you to my colleagues. senator booker and sen. coons: at i enjoyed working with you trying to find a way forward for the country. special counsel's by nature are unique and they should be. this came about as a conflict. there is no proof of collusion between the trump campaign and the russians that i have seen but the point is the campaign is under investigation of attorney general -- investigation. attorney general sessions made the right choice saying i cannot investigate a member of the
trump campaign because i was a member of it. i think mr. rosenstein is doing a good job. hopefully he and mr. mueller will do this in a professional manner. i see no evidence they are doing anything other than that. it would get an answer to those questions sin. i want to build on what senator leahy said. my motivation is to make sure we are a nation of laws and that no moment in time can overcome the rule of law. that we will have special counsel protections in perpetuity. i can see where in the future this may arise and be a conflict in -- it is probably good for the country. where not saying you cannot fire somebody but that someone will look over your shoulder in these hotly contested political environments. in partial law enforcement -- impartial law enforcement is one of the keys of the rule of law. to my colleagues on the other side, where have you been?
have you not read what is going the leading investigator, mr. stock of the clinton the mill investigation and miss page? you can have all the political views you want as a law enforcement officer but you can't put your thumb on the scale. you can't take your biases and put your thumb on the scale. if you don't like one candidate, fine. if you are investigated the other do it professionally. this is an email, august 15, 2016. i want to believe that the fact you throughout -- that there is no way he gets elected. talking about trump. i'm afraid we can't take that risk. it is like an insurance policy in the unlikely event you die before your 40. this is the had investigator talking about investigating the clinton emails scandal, talking
to a member's girlfriend in the department of justice. there is no way he gets elected by him afraid we can't take that risk. can you imagine if the shoe were on the other foot. and a lawyergent in the department of justice talking all the time how bad the democratic candidate was and that we need to do what we can to help the republican candidate. this is stunning. he has been dismissed by mr. mueller, but i am not going to stop. he can say a lot of things on the clinton the mill investigation. you cannot say the people in charge of it were impartial. server was taken out and beaten with a hammer, scrubbed of chemicals. they defied a court order to turn over the server to the fbi.
, is thatm line here when you look into what happened with the clinton email investigation it was anything but impartial. dismissed has been based on a recommendation by the inspector general because he was leaking classified -- leaking information contrary to department of justice rules about the clinton foundation. warrant against mr. carter page, the dossier that was used by the court provided by the fbi was compiled by a foreign agent, mr. christopher steele who was on the payroll of fusion gps who was being paid by the democratic national committee and the clinton campaign to do opposition research against candidate trump. him $168,000.
he went to russia to compile a dossier. where do you think he got the information from in russia in?telligence services to play -- in russia? how hard would it be for russian intelligence services to play like a fiddle. the dossier was compiled and by the time it was submitted to the court there were zero efforts to verify it. salacious allegations against candidate trump. what would happen if the shoe were on the other foot. party hade republican paid a private organization to hire a foreign agent to go to russia to investigate a democrat candidate, it was used by the justice department, given to the course that any validation, it would be front page news everywhere. if you care about the rule of law you care about this. mr. paige was being looked at by the fbi. the warrant applications, the
main reason they gave the warrant was because mr. steele had been used in the past and the dossier was a supporting documentation. if you don't believe me look into a file. if you care anything with the rule of law, which you want some correction of this problem? somebody to be held accountable. and let the court know in the future, by the way, this document is being prepared by somebody who hates the candidate they are looking at. you need to look at what mr. steele's attitude about this was. he said that he is desperate that trump not get elected. he told the fbi when he was an informant or a source that he was not using the dossier for political purposes, he is not given it to the media. he was line. yet given the dossier to the media. contrary to what he had said to the fbi because he is being sued in british court for defamation.
in the court filing he admits to giving it to the press while working for the fbi. in october the fbi discovered this and wanted to ask him why he did it. here's what he said. you reopen the clinton investigation i thought that was really unfair and i had to do it. cap -- it." motivated for political reasons, because hessier out did not like what the fbi did about the clinton the mill investigation. that should bother everybody in this country. he's number one contact, who is he? the fourth guy in the fbi and department of justice. his wife worked for fusion gps. steele. worked with mr. can you imagine how it would be on the other side?
i'm glad we did this today for the special counsel. i stand with my colleagues on this -- thate, on of president trump tried to fire mr. rosenstein or mr. mueller that it would blow up in his face and be the work decision of his presidency. we don't need that. let's move forward in a professional way. i promise this. if you believe that law enforcement should be impartial then you should care about what i am saying. the fourtheve that person in the department of justice should tell everybody his wife works for a research on -- firm paid by the democratic party and the democratic nominee and that the person they hired hated candidate trump and went to russia to get a bunch of garbage and the court used all that, that goes to the heart of the rule of law. i cannot believe we don't have a special counsel for this. , as much asnes anything else, the way the system should work. bias everywhere, wanted to get a
result. >> senator durbin. but me thank you and your staff as well as senator feinstein is a ranking member. the members who were party to a negotiation that led to our vote today, it was a demonstration of good faith and talent, but determination to come up with a bipartisan workaround. i thank you for your leadership in bringing us to this moment. i'm going to respond directly to friend senator graham. this committee knows bob mueller well. he is a former head of the fbi who on one of the rare occasions had his term extended. we had a chance to know him and work with them and to develop a healthy respect for this man's professional ability. i would like to say two or three comments. i think it is good for us to believe and focus on our work
product being able to stand the test of time. and to be able to work not only under current circumstances but the future as well. we should not ignore the elephant in the room. literally and figuratively. we are doing with the situation where our president has tried to undermine the integrity and are companies in our law enforcement agencies. what we are trying to do is to protect mr. mueller and his investigation to make sure it is completed in a professional way. that is the reason that brings us to this moment. senators on the other side can say this is not about bob mueller, but let's be honest, it is. we have come together because of our concern about his completing this investigation. senator lee left, i just went to salute his departure here. even when i disagree with him he makes a thoughtful presentation on constitutional principles. i think particular case that many in this committee are so smitten with the former late
chief justice they look for scal of stares instead decisis. we have a decision under morrison that has not been overturned. maybe justice scalia is right. it is the control of law for the moment. the morrison decision gives us the basis for what we achieved today. i want to address the point made by senator cornyn. how many times have we heard in this committee, do what you wish in the senate judiciary committee but former senators sessions may not approve? mr. chairman, i think he spoke on that issue yourself. i'm glad you did. the attorney general's approval of what we do has nothing to do with our responsibility. we have a responsibility to the constitution and to this immittee to do our job and thought the way regardless of the opinion of the attorney general. vote out of the senate
judiciary committee i hope will be noted by the republican majority leader. this is an issue that should come to the floor. we have another issue we share that should come to the floor. it's not as if we are overwhelmed by work on the floor of the senate. there is a motion running around about renting out the senate floor for events. we use it so seldom. why can't we take up an issue like this when we return? it is time we debate it on the floor. let's have a vote. it would be almost like the united states senate if we had something like that. i hope senator mcconnell will consider that possibility. let me say this. i have set a couple things in the past by the senate judiciary committee, its place in history, the reason why i respect his appointment so much. this is a day to pay tribute to that history and will be remembered. i hope we don't stop with this.
there is more to be done in relation with changing our loss to penalize those who would try to invade the american democratic process. this is the place and venue. the only committee with jurisdiction to do this. we proved today we can rise to the occasion. i hope we can do it again. >> thank you. >> thank you, chairman. i will be brief. i first wanted to say i was one of the original co-authors and cosponsors of one of the two measures that have been combined here. when the decision was made to go forward on a two by two basis i stepped back but kept a close eye on negotiations that continued forward. i just want to join other colleagues in thinking sen. tillis: a senator graham, senator booker, senator kunz for the good work they and their staff did an echo the comments about the extraordinary productive and helpful role that you and your staff played in
earning a slightly variegated issue into a form where we got a strong bipartisan vote. i appreciate that. i do wish to make the point of my own behalf that i don't think we need to assert morrison the -- morrison versus olson -- i think that statue would stand on its own merits. i think the supreme court would consider morrison versus olson the same way we allow civil service protection which includes judicial review of unlawful and improper firings for the public purpose of protecting against overt partisanship and the spoils system in the executive branch. there is every reason to believe that judicial review of the firing in this case would withstand constitutional scrutiny on its own muster because there is a similar public policy.
you don't get special counsel unless you have complex of interest. having the public assured and have the constitution upgraded in a way that we can guarantee that the rule of law exceeds couplet of interests. i think it is an important principle that the court would uphold if this law were to come before it. is, ist thing i will say am very pleased that the chairman's amendment has protected a principle i consider which isthanked -- during the conduct of an ongoing investigation, the investigators and the prosecutors never be put toer any ongoing obligation report in or otherwise make disclosures to congress. in rhode island i was the attorney general of my state. da's.ement we don't have
they're a three states where the attorney general does everything. i have overseen up a lot of criminal -- op a lot of criminal practice. the idea that i should check in with the rhode island general assembly in an ongoing criminal investigation makes my head want to explode. that is a truly intolerable intrusion on prosecutorial independence. and investigative secrecy which are essential for the enforcement of our laws./. it is no different coming to the federal level for a u.s. attorney to be put under some stricture that in the course of an ongoing criminal investigation he or she would be obliged to check in with congress and update them on the status of the investigation is equally head bursting a theory.
i'm glad we have steered clear of that. that would have been to step into a very dangerous and .nprecedented area with huge damaging repercussions. i appreciate all the negotiators having stillness clear -- steered us clear of that bear trap. great appreciation to you and your staff mr. chairman. >> senator cowan chart. -- >> i like that i segued from senator whitehouse's remarks with the word bear trap since we actually have bears in northern minnesota. >> for the record we have bears in rhode island. let the record reflect that. >> ok, good. [laughter] if anyone missed that it was a tribute to the chicago bears by senator durbin. i do want to thank you mr. chairman. for your leadership and senator
feinstein, the way you work together on this. your experience matters here. your devotion to this committee and the institution of the senate, which in your words mr. chairman is a check and balance as we should be in the legislative branch, an unfettered legislative power. it showed the way you're able to work with the authors here on a bipartisan basis. with senator kunz, senator booker, and senator grams. -- senator graham. i believe the vote sends a clear message that not everybody agreed but a clear message that we must protect this investigation. the investigations going forward --sen. tillis: did, this is senator tillis noted, this is about investigations going forward. for me this issue has hit hard as a former prosecutor. i spent eight years doing that job.
we would have cases come before us all the time where maybe the victim wasn't very sympathetic or maybe you knew the defendant, or it was some kind of white-collar case of someone people liked in the community. you would always have to see your job as being a minister of justice. your job was to convict the guilty and to protect the innocent. that you had to do your job without fear or favor. that is why my blood boils when i hear some of the comments you are on tv or threats of hiring people that you have to follow the law where ever it leads you. you doesn't mean you don't have discretion sometimes to be compassionate about how you follow the law. but the law is clear. the intent of the justice department rules are clear when they say you cannot fire someone except for good cause. ist this bill simply does take that concept and makes it
clear that you cannot just run all over our rule of law. i hope this does get to the floor. i hope the leader will listen not just to the wisdom of this committee but also to the wisdom of the american people and allo this investigation to be completed without little interference. >> thank you chairman grassley. i would like to thank you and your staff, ranking member feinstein and your staff. this is what the senate should be. an opportunity to close differences we and our staff have to craft a significant amendment to show your ongoing dedication to transparency and oversight and to get to a good result.
i want to thank my office who worked hard with other offices to get to this point. i have lengthy arguments which i will submit for the record about the constitutionality. as my friend and colleague pointed out, morrison v. olsen remains law. it has been cited by dozens of courts in the decades it is been only books, most recently by the d.c. circuit. there are plenty of good cause restrictions in the branch. the president has never had an editor control over long enforcement. -- the president has never had control over law enforcement.
the founders did not give the president the power to determine the necessary offices and conditions within law enforcement. they gave congress the power to define those offices. the president did not get the power of budgets over law enforcement. that power went to congress. there are many different sources i could cite showing the void of authority supports the constitutionality of this bill. we should proceed with the bill. letters from republicans, federal judges, why is that important, a question was raised in today's debate about whether we were preceding in confidence that this bill could withstand constitutional muster. it is important that republicans and democrats today reasserted that, whether agreeing with this bill or not, we all have a view that special counsel mueller should have to be able to conclude his investigation without harassment or interference.
this is not about this circumstance, this context or this president. this is about the independence of the department of justice and our respect for the rule of law. this is much more than about one person or one president. it is about ensuring no man or woman in our system is above the law. james madison said, if men were angels, no government would be necessary. powers should never be applied without a check. i'm grateful to you senators for crafting this, for getting it to this point and i look forward to working with you in a bipartisan fashion to ensure he gets the hearing and the vote on the floor it deserves. >> your answer will be included. >> senator, you are already considered a man of wisdom.
you have the patience of jobe as well. i waited this long just to give gratitude one more time i did not get a chance. to publicly thank senator thinks --senator dianne feinstein. she and her staff were angelic in terms of their guidance and stewardship in making sure we got to this point. i want to reiterate my gratitude to staff. these are tremendous agents of change. these were moments being negotiated. they were the ones carrying the sport. i want to give thanks to your staff. finally, chairman, you and i, i've only had a few years to serve with you but this to me,
watching our leadership, from our experience in the last congress to our experience on partnerships for tax credits for wen. senator coombs, who --they got together and showed that partisan politics needs to be subordinate to whatever is best for this country. you are a chairman from another party that often has done the same. i want to thank you for your stewardship and leadership. it is been an honor to be a junior member of your committee. thank you, sir. >> committee meeting adjourned.
>> this evening, president trump is scheduled to speak at a rally in michigan. it is scheduled at the same time of the white house correspondents dinner which the president has declined to attend for the second year. begins at 7:00ge p.m. eastern. then watch you are live coverage of the white house correspondents dinner. sunday. >> it seems to be swaying voters. there's even a famous editorial cartoon the comes out. >> lillian cunningham, host and creator of the washington post constitutional contest. -- podcast. kids around the concept of we
the people, the exploration of gender, race, nationality, ancestry. then we move into the idea of a more perfect union. episodes a couple of about justice and defense. ends a culmination of blessings of liberty and health and prosperity what does that mean. >> lillian cunningham sunday night on q&a. monday evening at 7:00 p.m., james comey will be live on book tv on c-span 2 in prime time with his best-selling autobiography "a higher loyalty. loyalty. higher