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tv   Special Counsel Independence Integrity Act  CSPAN  April 27, 2018 7:24am-8:57am EDT

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he still becomes a center of attention every day both in conversation and for the media. but then there's the other donald trump the one insiders know who is just the opposite. he's thoughtful, he listens, these very careful about making decisions for republicans joining democrats and support. mitch mcconnell says the measure well not be debated on the senate floor. the judiciary committee markup session was an hour and 40 minutes.
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[inaudible conversations] [inaudible conversations] i think we will get started right away. we have the 11 here.
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we have enough to at least debate. and i think we have a quorum but we will proceed and wait untilkn we know that we have to have a certain amount of people to draw that conclusion. with two bills and several nominees on today's agenda i'm also going to takeng a point of personal privilege this morningg i will do that before senator feinstein speaks. today we have a number of judicial nominees on the agenda all of whom are on the agenda for the first time they
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requested that they will be held over. these would be mark bennett ninth circuit nancy brazell district of minnesota also eric tulsa from minnesota. there are also two u.s. marshals on today's agenda we will hold on them. we do have enough people here so that those people are being held over as well as the treaty implementation that's on the agenda for the first time we won't have to deal with those holdovers again. we will vote on two u.s. marshals if we have a quorum. i want to thank you for joining as cosponsors on america's treaty is called
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information act supported by the national federation act. the entire copyright community and other public interest stakeholders. the bill has been a truly bipartisan effort so obviously i want to applaud the ranking member enter cosponsors for all of their hard work we look forward to taking it up when we get back after next week's recess. today we will also consider the special counsel independence and integrity act. this has been introduced the intent of this bill and if i'm wrong on this. the sponsors can correct me. is to ensure that special councils appointedre by the
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justice department are only removed for cause the bill allows a special counsel a way to up peel his or her removal by the attorney general to a panel of judges the current bill as a result of months of negotiations between the bipartisan sponsors who introduced two versions of a special counsel bill in august this committee held a hearing on those bills in september at the hearing we heard from constitutional scholars some who considered the bill to be constitutional and others who felt it was unconstitutional. they depend on whether you think the supreme court decision in morrison is good law. justice scalia dissented in morrison and he is justifiably
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famous and influential as we all remember. but the reasoning has not yet been adoptedfa by the majority of the supreme court in the majority opinion in morrison p olson was cited with approval by chief justice roberts as recently as 2010. if you believe in the principles ofve starry decisive you have to admit it's at least an open question as to whether morrison b olsen is good law and whether these bills are constitutional. you can try to predict p what the supreme court will do and they could overturn morrison but you might be wrong and you would not be the first to have made such a mistake at the hearing i told the sponsors that i would put their bill on the agenda for the whole committee to consider if they
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can negotiate some compromise language after they did a few weeks ago because i wanted to keep my commitment. the committee will debate and hold on the bill today as i had stated before i have constitutional concerns about this bill. the prosecution of crimesex is the executive function but also think it's clear and you folks know my reputation on this point. our constitutional system and premise as it is cannot function unless congress exercises robust oversight over the executive branch.h. the supreme court has recognizedng as much. the oversight powers are broad and that's a word from cases
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it cannot legislate wisely or effectively in the absence of informationsp they indirectly involved the legislative work of congress and we can revise those laws. congress appropriates the funds that makes special investigations possible. they may use information gained. or to consider whether to resort to extreme remedies of impeachment. it only occurs where there is a conflict of interest within the executive branch.
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it's usually a matter of great national concern. and congress by exercising its oversight powers can help the american people with confidence.he i would propose text that has been included in the managers assessment. after current statutory reporting requirements. it also codifies a certain department just as regulations by the bipartisan sponsors.
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at least in the concluding report that attorney general must include information about decisions to expand or contract the scope of the investigation. as to not interfere with the progress national security and other concerns. transparency and accountability is very much in the public's interest. i mention mentioned those two for sure. the reporting requirements
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will help the congress and the executive branch to do their jobs i believe this bill should be considered by the full senate. i believe the reporting requirements would survive. today's vote will say a lot about how each of us you our responsibilities. we took an oath to protect the constitution. we would wheel the powers.
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that we could check in the powers of the other branches. and certainly it certainly meets that requirement that we takeme in our oath to the constitution. the bill goes too far. i understand the position of those who had strong constitutional at the very least if my amendment is adopted it will require the executive branch to give a more information to the congressat and that will enable the congress to do its job effectivelyy and more effectively i'm in a call on you.
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this bill is the way the senate should function. we should have four bipartisan senators put it together. very comprehensive amendment. they have problems with parts of that amendment. everybody went to work and worked out. we have a piece ofgi legislation that i believe will stand the test of time i want to commend you for that. it was your amendment and you are willing to make the necessary compromises to produce what i think will be a dominant majority of this committee. i also want to commendndhi they
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were the for the put this together. they become very important authors of what is an important lot that will be passed. the bill before us and the grassley substitute is the result of the hours of negotiation. i support both. as we know the department of injustice regulations say that a special counsel can only be removed for misconduct, dereliction of duty and capacity conflict of interest or for other good cause. it provides for judicial review. if i special counsel were to be fired about the
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constitutionality of this legislation. based on what i have learned there is a constitutional belief nor even a lawyer. let me quote the professor. two of the witnesses who testified on this very issue and are hearing this past september who are constitutional experts. their letter about this billi explains that and i quote they are not only the view that a good causeod removal restriction is constitutional but that this bill would be upheld by the current supreme court and
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quote. in other words they find the measure we are considering todayy as i mentioned earlier this amendment was a result of hours of a bipartisan negotiation let me think you for being willing to do so. i note know the pride of authorship. this is a better effort because of it. the amendment itself codifies other justice department regulationss about the special counsel's investigation once it's over.n this reporting requirement is a compromised way to ensure appropriate congressional oversight while also
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inoculated the special counsel for any political interference. and that is as the heart of the matter. thank you again for putting this important piece on the agendat and for the bipartisanship you fostered in the way in which you handle it. i would like to recognize senator hatch. i like to follow him. and then we will do u.s. attorneys and then we will turn to the bell. and then well have a substitute amendment. well had whatever debate you want on the bill.
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i would like to offer a few remarksip we all care for tom and we love him. one of the true experts. on that judicial appointments. they put the expertise to great use here on the committee. going back years and decades really. he is also handled a number of important bells. two religious freedom.
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in has drafted hundreds of speeches. he has been a wonderful staffer. they will continue to write aboutt the most pressing legal problems. i wish him the very best in his next adventure. we all know that we all owe them a thanks for the hard work because they helped
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people and other senators on this committee. in this particular case nominating procedures take up a great tile of time with the staff. i want to express thanks. i'm sure that senator hatch was there. i owe an awful -- and awful lot to him. we applaud you. okay. i think we will do these. we've already held over at the names that had to be held over. we have a vast quorum now. everybody is here.
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i'm glad we have the attention to the work of the committee. without objection and i will ask for the a's and a's. those opposed say no. now were going to turn to the special counsel. in before we had debate and amendments. i hear no objection. the amendment is the for us.
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my great appreciation to you and your staff. an institution of the senate. i'm grateful t to the ranking member. and for having worked so well to make this possible. we have much longer contents. we will proceed to vote. it's an important day. the currency of the law is that morrison is still good law. it's an important day for us as a committee.
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by the important were not judges. everybody can make their own decision about the constitutionality of this legislation. i think it covers the subject matter pretty well. we've had constitutional experts say that it would pass he doesn't believe there is a need for this bill to move. here the committee chairman c and we decided the best thing for this committee to do was take up this matter and we are now in terms of policy and gets really good policy that will stand the test of time. we used to have a special counsel statute and that has lapsed because the special iunsel has a lot of power
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can understand people's reluctance to have a prosecutor that can go anywhere and everywhere. what brought this about is a conflict of interest. he could not look into any allegations against the trump campaign about collusion or anything else because it is part of it. to those who think he made a bad decision i cannot disagree with you more. he have no other decision. the only thing he could himself do was recuse because you can't investigate the campaign you are a part of. i asked the attorney general sessions yesterday do you have confidence in mister rosenstein and he said yes. they have that bipartisan support of the maryland senators..
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i think he isi doing a good job. i think he has given him a charter and he will report back to usan did he stay within his charter. into the public. what can the president do. we are a nation of laws and this is what this is about for me. that's what makes us different from other countriesr. that we hear a lot about. we cannot personally fire mister mueller. they can fire the person that appointed him because of that person is a political appointee. in under our laws in tradition pretty much they can fire people for that.
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the special counsel is not appointed. when there's a conflict of interest. there is a reason we have a special counsel regarding the 2016 election. almost all special councils whether one exists. what i've tried to do with my colleagues as a fines and protections that are consistent with the one case.e. it's pretty simple. if a special counsel is fired now or anytime in the future appointed within the department of justice that special counsel can position the court.
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no more than that. you get a chance to position a court to see if you are firing fell within the department of justicegu regulations which he has read. the conflict of interest. for another good cause. balancea check and that makes sense. all of these cases are to be controversial. he is not a civil servant. side job you will do for everett . i think the public would be will served to have a judicial check and balance where the special counsel if they chose could position the court. and why are we doing this. i think the rule of law stood the test of time. no one is above it.
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i feel very comfortable he will not dismiss mr. mueller. i think all of us on the republican side has been asked about this. i've yet to find one republican hit that it was a good idea to stop this investigation. where goes i don't know. he has a reputation of being professional and fair-minded and i think the rule of law would be will served to allow him to do his jobrf without political interference. he can be criticized when he was a special prosecutor in
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the clinton case. i would imagine that if there had been an effort to remove ten. people would've been doing what we were doing on our side. it's about the rule of law. in skin estate in place as robustly as possible as long as i am here with my colleagues. that's at what this is about. it's about a system for today, tomorrow and foreverfo that makes sure that nobody even the president is above the scrutiny it can be scrutinized but there needs to be a check and balance in balance because when we put someone in that spot there in a political hot seat. that's the nature of this special counsel. i will talk more into why we
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need a special counsel but i'll save that for later. i join you in preserving the rule of law to make sure that mr. muellerr j and future specil councils haven't outlet to ask for review if they think someone -- something was done towards them. there's a lot of aspects of the 2016 election that cry out for second investigation and none of you had lifted a finger to do anything about it. i would like to go to consideration of amendments if there is no if no one wants to offer an amendment can we go to the final passage.i senator lee. yes, please proceed. as i offered this amendment,
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it has been filed. let me pull it up. [inaudible conversations] we had copies of it. i am offering it. we have a couple of issues here. we are told w that if president
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trump fires moeller will threatens the rule will in america. the committee's solution apparently is to do the job ourselvess by advancing the legislation that were considering there are two constitutional provisions. and then i try to address through my amendment. the first is article two in the vesting clause. the second of the appointment cause. it provides the officers of the nine seats must be appointed by the president and confirmed by the senate. let's start with the vesting clause for a moment. pretty simple.
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they have ultimate authority of allal purely executive functions. any attempt to restrict this authority.he by infringing on the executive power. to conduct criminal investigations. they are habits of the executive from firing a special counsel except for cause.ou as a matter of black letter law the applicable cases that the president has authority to fire officials. at the same time congress can limit the removal power only with respect to officers who exercise quasi-- excellence.
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it is the quintessential executive function in restricting the use of that power. by terminating someone with that power. it is fundamentally at artsan -- at odds. and ensures that they are out to ultimately accountable for the voters. to control the executive branch. to limit to the the president's power to control. what might be tempting to
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regard this failure to comply with separation of powers. and almost certainly well have a significant impact on liberty. they were back in 1940. for he went on to the supreme court. from any other person in the prosecutor cannot be fired for exercising the same power unwisely. the amendment has some additional defects. to appoint a special counselal 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.
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know is that personn subject. from the normal chain of command. the department regulations. there is a very meaningful difference between internal adopted by an executive branch. to tie the hands of the executive. for congress to mandate how it is that executive branch charges these functions. the reporting requirement to congress.
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it requires the special counsel. in explaining the decision to prosecute for any decision not to prosecute. this is unexplained departure. from the department of justice which require the special counsel to provide the attorney general with a itilar confidential report provides no way to enforce this requirement. we are this legislation to become law. the executive branch would not comply. it concludes that the person should not be charged.
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i thought there was a consensus in the committee. .. .. affecting the lives of the american people. so not an abstract injury to the constitution. the supreme court upheld the independent counsel statute in morrison. that decision has never formally been overruled. but most lawyers do not regard morrison as good law. the supreme court would likely
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not reach the same conclusion today. just as the supreme court likely would not reach the same decision about a lot of other things that have been decided in the past. korematsu versus no states is a good example of the case decided rhonda. it's never been overruled. yet i hope i suspect i am certain in fact, were we to consider a similar policy debate every one of us would stand forward and say this is unconstitutional. something can be caconstitutional 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 of the supreme court reaffirmed that restrictions on the president article ii authority were permitted only in the context of independent agencies that do not exercise. executive functions and with respect to the civil service. special counsel mueller doesn't fall into either these categories. there's not an argument you
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civil service protection door is ci 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 both justice kagan and justice neither of them were on the court when free enterprise fundce was decided would have voted with the justice scalia in his classic dissent in morrison v. olson. justice kagan has herself said that justice scalia's masterful dissent inof morrison was one of the greatest distance ever written, and every year it gets better. this is based on the understanding that increasingly people and relies on both sides of the ideological spectrum on both sides of the political continuum that justice scalia was right in his dissent and morrison v olson. most legal scholars and
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commentators across that same spectrum now think that morrison is not good law. professors testified as much in front of this very committee and heon is joined by a lot of other professors who don't exactly align with republicans on many issues. the clause provides an independent reason to question these bills. in edmonds versusth united stat, a unanimous supreme court concluded thatt inferior offices who need to be presidentially appointed and they need to be confirmed by the senate are officers who work aspa directed and. supervised at some level by principal officers. if these don't prevent the from firing aal special counsel because of special counsel has acted unjustly or perhaps unwisely, that it's difficult to contend that the special councils work
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is directed and supervised by a principal officer in any meaningful sense. the power to remove is the power to control. if you truly arere supervising someone you have the ability to stop them if you have the ability toon remove them from te position they occupy if they exercise that power wrongly. 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 unitedd states, and that oath means we're duty-bound too seriously personally assess the constitutionality of legislation we consider and to vote against legislation we deem unconstitutional. mary advancing this legislationa 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'm
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introducing sends a a clear sil 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 presidents of power under the appointment clause and under the vesting clause. that, mr. chairman, i offer up the cement. >> before calling senator tillis i hope that we can kind of maybe limit debate to a couple points of view on each side of an amendment because with six and seven amendments filed. senator joseph. >> thank you, mr. chairman. for the last three years i've been on this committee as t a nonattorney, every once in a while i wonder whether not i wish i'd gone to law school and become an attorney. senators, , to make me glad i didn't because i don't think there's anyco way i could match him on the arguments. in m fact, it sounds like the arguments that may go before the court when equal numbers of
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people are on either side of the issue. back when i was speaker of the house when we would pass a bill 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 what i think it was clearly unconstitutional or inconsistent with the state constitution but i think this is an issue that's going to be debated. it may even open up what senator lee assert is a bad law decided by the supreme court. let me take the main reason why either pop with this amendment aside from the fact that it gets the underlying bill we hope to get past today, is this sense of the senate makes this about mueller. i didn't go about this bill because a 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
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bill, but i'm trying to quit law that has enduring belly. it doesn't reference the special counsel or special counselse mueller. what it tries to do is assert this institutions authority. we are members of the senate. where stewards of the city were stewards of the congress. we should always be looking for ways to assert our authority and every once in ari 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 actually have some control, increase transparency and accountability. our bill isn't about mueller. i 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 are going to have had some say in exactly
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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 that this legislation is not about mueller goes against pretty much everything that i've ever heard anyone say about it ever, and so let's not pretend that it's not. my amendment does to simple things. it recognizes it is the sense of the senate that the senate should have resurrectedba unconstitutional barriers, unconstitutionalon provisions tt interfere with the separation of powers and the 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's no argument here that he is another type of officer wielding quasi-legislative or quasijudicial powers. therefore, he's got to either the a superior officer or an
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inferior officer who serves subject to the supervision of a superior officer. that is within the presidents to make it that's what i filed this amendment and i encourage my colleagues toea vote for. >> after senator hatch i hope we can vote. no head, s senator hatch. >> i would first like to say appreciate your work and the work of members of this committee on this legislation. this is a thorny issue and to recognize we're trying to doo te right thing here. from the earliest days of the mueller investigation i've said -- [inaudible] >> you have to put a a quartern it. [laughing] it surely won't be senator grandes quarter, i'll tell you that. [laughing] >> that's good. it's working now. >> i thoroughly with senator graham, too. >> put a quarter in him.
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>> from the earliest days of the mueller investigation i've saidh investigation should be allowed to run its course. i think that's in the best interest of both the president and the country. firing a mueller would cause a firestorm and bring the administrations 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 said that manyro times and i join my colleagues today in cosponsoring this resolution that says exactlyly 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 we not overstep her constitutional authority. i applaud the impulse. today's special counsel legislation but i cannot support it because i believe the bill is unconstitutional. prosecution is a court executive function. perhaps the court executive function, and the constitution
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commits that function to the executive branch. efforts by congress to constraint constrain or control executive branch authority over prosecution transgressed the separation of powers and bring congress in direct conflict with the constitution. we've been down this road before. congress passed the independent counsel statute in response to the excesses of watergate, and it was a mistake. justice scalia is famous dissent in morrison v. olson laid out the litany of reasons why i was unconstitutional. justice scalia is central insight the prosecution is a court executive function and congressionally created restraint sapped the political accountability that mustco be present in allll prosecutions ws ultimately vindicated. congress allowed independent counsel statute to expire in a bipartisan fashion. morrison v. olson has not been overturned but there is widespread agreement today that
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it was wrongly decided. i for one think justice scalia was right, that is why do not find compellingnd the arguments the special counsel bill bill s constitutional because it is consistent with morrison. morrison was wrongly decided and congress should not compound the courts air attracting new constraints that similarly transgress the separation of powers. remove requirements for offices who exercise. executive power such as prosecutors arere constitutionay subject -- suspect. so our 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 the subject to the president. but it is never, it's never appropriate for congress to
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contravene the constitution separation of powers. you cannot protect the t rule of law by violating the supreme law of the land, and for that reason i will oppose today's bill but i ask unanimous consent to enter into the record the "wall street journal" op-ed that it authored that further expresses my views on the subject. >> without objection it will be ended. coons. >> thank you, mr. chairman. i have linked to remarks by way of debate about whether or not morrison is good law, whether or not the description offered about the constitutions appointment power -- >> can you put that in the record? [laughing] >> i very much forward look to putting it in the record that i will simply say one sentence, the d.c. circuit in a recent en bloc decisions that morrison and the quote remains valid and binding precedent also think it's important to remember we arend not dealing with the independent counsel statute. this is a much more modest statute and we to adopt the resolution offered it would
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remove and guts damon that includes provisions on transparency. i urge all my coats to vote against this amendment. >> i ask unanimous consent. >> senator hatch. any senator sasse and senator booker. >> unanimous consentia to put te scalia opinion in morrison in the record. i think it would be disastrouss for the nation to fire more and would be politically suicidal for the president,al and yet the scalia opinion many of the seal that were bound by it. i think this bill is unconstitutional, but protecting mole is a great instinct and it would be politically disastrous for the president to act. but if i could ask unanimous consent -- >> without objection, so ordered. senator booker. >> i want to correct for the record ion consult with senator coons h and emit he urged his colleagues to vote no on -- [inaudible] >> i'm so sorry to my ranking member. i consulted with senator coons handy intended to say that he
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urges his colleagues to vote no on the internet. i know he respects senator lee but he was not persuaded by the argument that he presented. i want to reiterate what my colleagues said. senator lee hasg had much more experience practicing law than i have and i went to school of philosophy, that gail law school, not quite equate great school that he attended but i do want to say that the dissent that comes you talk and read it, it has to do with the independent counsel statute talks about many different points of intrusion. on one of which applies here. and as a guy who is watched the history of our supreme court for a long time i agree with you. i would not want the plessy decision told. stare decisis very, very important. this is clearly a case where subsequent to that decision this court and other courts have
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upheld the majority opinion, 7-1 in morrison. this is a very distinct rule that does not come is not covered by the full intent of that dissent and i think, and i encourage, i'm grateful for senator sasse asking for to be put in a a record out my colleagues read that dissent. it does not apply fully here except for one point which he idea of the executive. but i ask people to consider that the presidential power does not have, isd not extreme and unless we throw out all the four cause elements of their ability to fire and remove, especially inferior officers, this bill under the pretense, this amendment underis that pretenses to me constitutionally valid. and as you said quite eloquently, sir, in your opening remarks can let's do our job and let's allow the supreme court to
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do theirs.en 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. what's been stunning to me is how much we complain about the partisanship of our era. theth partisanship at our founds eric especially in the early days of our republic was extreme here to my knowledge we that no duals. we had no canyons here in this body, and this has been -- i one of my colleagues whisper not yet. but i just have to say this has been one of the more privileged moments like that asor a united states senator. chairman, your team has been extraordinary in the way they've worked with the sponsors of this legislation. it is a moment in time where,, like our founders at her best, we pull ourselves out of a historical, the x end use of this moment and we begin to look at the long frame of history.
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i would want to emphasize the admonition senator tillis gave thisis whole body earlier and iy took it as a very pointed advice that this should not be a politicized moment. this is not about one president at this point in time looking into the future it is really important that showed a president of the united states or their associates be under investigation by the special counsel, that there are reasonable checksth 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 exigencies and the politics of the moment a look at the longer story of a country. we can do something here today that could provide commonsense pragmatic checks and balances to executive authority at a time that i've watched in congress,
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especially on things like the authorization to use military force, slip away from the article one branch of government to the article to branch. it is my hope that my colleagues understand that this is a very modest step not only at a time right now were some of us might believe it may be needed in terms of sent a signal to the president at a time i would look into the future 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 on this committee where staffs, where principles have come together and work in a coordinated fashion to produce something that i think it's not just needed in the moment, needed in the long-term, but i do believe the thoughtfulness and the way we'veve crafted this narrowly will withstand constitutional muster. that 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
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supreme court challenge, so be it. thank you. >> the clerk will call the roll on the lee amendment. [roll call] [roll call] [roll call] >> by that vote just announced, delete the name is defeated. now we go to final passage.
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>> mr. president? >> just amendment. by the way, before you speak, i will -- mr. chairman. whatever. [laughing] >> if we do vote, just whenf senator cornyn is done, if we do vote on i will stay in session so people can speakerphones they want to. >> excuse me, mr. chairman. its topics like this that make me glad i'm on the senate judiciarye committee. i think thisse is really importt role that thisth committee plays and while i disagree with the remedy prescribed, i do appreciate the chairman bringing this up and letting the committee debated and vote on it. is an important topic. i join all my colleagues on the committee and their concern over russian interference in the 2016 election and because of this i continue to believe that it's in the best interest of the country
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that the special counsel be allowed to complete his investigation and do so inun a timely fashion. i believe that we are all in agreement on that. director mueller should be allowed to finish his work. but that's not what we are considering here today, in my view. i agree with the eloquent arguments made by our colleague senator lee and senator hatch is to regard to the constitutionality. i agree with senator lee. we take an oath to uphold and defend the constitution, no different from the judiciary, and marbury v. madison did not erase or independent obligation to assess the constitutionality and legislation our self. so that's the first reason i will vote against the legislation because it's unconstitutional. secondly, i believe it's unnecessary. the president is not going to fire director mueller i believe
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because repercussions of doing so would be disastrous for his presidency and for the country. third, this bill will not be taken up on the senate floor. fourth, the house will not pass it. fifth, the president the presit sign it, nor should he. i think it's instructed to go back and look as i have and perhaps many others have at the congressional research service history of the independent counsel, , statutes, and why we ended up with a special counsel that's provided for under department of justice rules. i know others have talked about the supreme court precedent, but i think it's just as telling to look at why there was a bipartisan consensus in 1999 to let the independent counsel provision expired. senator durbin i know at the time made some comments, and i agree with him, that it was wise to let it expire because of the
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excesses of the clinton impeachment investigation. the whitewater investigation. others on this site felt like the iran-contra independent counsel ran rogue and extended way too far beyond the authority under which the independent counsel was created in the first place. and i fear that we are, if we were to pass this legislation and if it were somehow magically to become law we would be resurrecting many of these problems with the independent counsel provision that democrats and 99ublicans alike agreed should become, should expire -- in 1999. so i think we do have an independent responsibility to assess the constitutionality of the statute. this bill will not be taken up on the senate floor.
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the house will not pass it. the president will not sign it, and so for that reason i think the appropriate remedy was to do with senator lee offered, , whih was to offer a resolution expressing the sense to the senate that i cannot in good conscience sacrifice what justice scalia stated was the single greatest and most important guarantor of our liberties and our republic government by that i mean the separation of powers. because it happens to be politically expedient. i'm not judging the motivation of my colleagues. i just can't do it based templating as i do that it is unconstitutional. and at the same time i just want to reiterate what we all believe that director mueller should be allowed to complete his work in due course. thank you, mr. chairman.te >> can we -- you speak after the vote, senator lee. the clerk will call the roll on final passage. [roll call]
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[roll call] [roll call]ye will. >> okay. 26-44 will be reported to the floor. i will call on senator leahy. i'll go back and forth. let me call on leahy and then you and then durbin and -- is it any other republican who wants
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to? >> okay then, we would do it this -- >> thank you, mr. chairman. i will put my whole statement in the record, if i might, but as the most senior member of the senate, the dean of the senate, i feel obligated to share my perspective today. i'm a lawyer, i'm a former prosecutor, as many are on this committee. during my four decades in the senate, both republican and democratic administrations, i have never before seen career nonpolitical law enforcement officials so relentlessly attacked by our government. i have never before seen critical national security investigations so blatantly politicized. never in 44 years. frankly, i've never been so
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concerned that the walls protecting the independence and integrity of our law enforcement institutions are at risk of crumbling. remember, our nonpartisan law enforcement institutions are a hallmark of ourur republic. it sets us apart from so many of the nation's around the world. america democracy indoors because we empower these institutions, uphold the rule of law and pursue justice with regard come with no regard to who is in power. we remain a nation of laws and not of people. and i think when these institutions are under attack as they are today, this committee, probably more than any of the committee and the senate, has to act. so i think, you know, special counsels ability to finish his job can't be subject to the
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latest tweet or a hairtrigger impulse of the president. i'm hopeful the strong bipartisan stand were taken today may well prevent us from waking up to a tweet storm that since us careening toward a constitutional crisis. and i don't say that lightly. i thought about this. i sat in my formats in vermont thinking about it. i sat in these committee hearings. i was at an appropriations committee meeting with the attorney general yesterday. i would say, mr. chairman, this legislation represents the best of the senate. members worked in good faith, on difficult issues. they sought common ground both republicans and democrats for the good in the nation. i want to express my appreciation to the billpu sponsors, to you, mr. chairman, and to senator feinstein for working together.
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our work is not done. with a strong bipartisan vote today. i hope the majority leader will work with us to bring this vote on thede floor. we have to understand we are here for a time. other senators will replace us. the constitution continues. our country continues. the checks and balances in our country continue. we have to stand up as members onin that, and when something is not done right wee have to say so. so, mr. chairman, i will put my whole statement in the record, but in 44 years in the senate i have never seen this -- i have never been this concern. they givebe a much. >> thank you, senator graham, then senator durbin. >> thank you to my colleagues who senator tillis, booker and coons, i really enjoyed working with you trying to find a way
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forward for the country, special counsel by nature are unique and they should be and this came about as a conflict. there is no proof of collusion between the trump campaign and the russians that icing, but the point is that the campaign is under investigation. senator, attorney general sessions made the right call to say say aye can be part of investigating the trump campaign because i was a key member of it. i think mr. rosenstein's is doing a good job and hopefully he and mr. mueller will do this in a professional manner, and i see no evidence they're doing anything other than that. we will get an answer to all these questions pretty soon. but one thing i do want to just build on what senator lee said. my motivation for this is make sure we're a nation of laws, that no moment in time can overcome the rule of law and that was a special counsel protections in perpetuity because i can see where in the future this may arise, a
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conflict in judicial review for calls for removal is probably good for the country. we are not saying you can't fire somebody. c we are saying somebody is going to look over your shoulder and is hotly contested political environment. impartial law enforcement is one of the key concepts of the rule of law. to my call is the other side, where have you been? have you not read what's going on regarding the lead investigator of the clinton e-mail investigation and this page or to connect 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, find, but if you're investigating the other, just do it professionally. this is an e-mail, august 15, 2016. i want to believe the path you
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threw out for consideration andy's office, and whose andy by the way? that there's no way he gets elected, talking about trump, but i'm afraide we can't take that risk. it's like an t insurance policyn the unlikely event you die before your 40. this is the head investigator talking about investigating the clinton e-mail scandal, talking to a girlfriend in the department of justice, there's no way he gets elected but i'm afraid we can't take that risk. can you imagine if the shoe on the other foot? you had fbi agent and a lawyer in the department of justice talking all the time about how the dad the democratic and it was and we need to do what he can to help the republican candidate. this is stunning. he has been dismissed by mr. mullin i'm not going to stop because you can say a lot of
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things about the clinton e-mail investigation. you can't say that people in charge of it were impartial. now, the private server was taken out and beaten with a hammer. it was scrubbed with chemicals. they defied a court order to turn over the server to the fbi. the bottom line here is that when you look into what happened to the clinton e-mail investigation, it was anything but impartial. mr. mccabe has been dismissed based on a recommendation by the inspectorl. general because he s leaking come he was leaking information contrary to the department of justice rules about the clinton foundation. the fisa warrant against mr. carter page, the dossier that
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was used by the court provided by the fbi was compiled by a foreign agent, mr. christopher steele who was on the payroll of effusion gps was being paid by the democratic national committee and the clinton campaign to do opposition research against candidate trump. they pay him $168,000. he went to russia to compile a dossier. where you think you got the information from an russia? how hard would it be for russian intelligence services to play him like a fiddle? the dossier was compiled at the time it was submitted to the court there were zero evidence to validate it. none. salacious allegations against candidate trump, now president trump. what would've happened if the shoe were on the other foot? that if the republican party had paid a private organization to
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hire foreign agent to go to russia to a investigate a democt candidate, it was used by the justice department, given to the courts with any validation, do you think -- if you care about the rule of law you want to care about this. mr. page was being looked at by thee fbi, but the world applications, the main reason they gave the word was because mr. steele had been used in the past in a reliable fashion and the dossier was a supporting documentation the court relied upon. if you don't believe me look into the file. if you get anything about the rule of law, wouldn't you want some correction of this problem? somebody to be held accountable? and that the court know in the future, oh, by the way, this document is being prepared by somebody who hates theom candide they are looking at and you need to look at what mr. steele attitude about this was. he told mr. or that he's desperate that trump not get
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elected. he told the fbi when he was an informant for them, a source, that is not using a dossier for political purposes me that given it to me. he wasos lying. he given the dossier to the media contrary to what he said to the fbi because he is being sued in british court for defamation and in the court filing he admits to giving it to the press while working forde te fbi. now, and october the fbi discovered this and when they asked him why did you do it, here's what he said. well, when you reopen the clinton investigation i thought that was really unfair and they had to do it. >> political as you can possibly be, motivated for political reasons, gave the dossier out oakland to his own words because he didn't like what the fbi did about reopening the clinton e-mail investigation. that that's about everybody in s
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country. mr. ohr tom his number one contact, who is he? he's the fourth guy in the fbi -- and the department of justice. his wife worked for fusion gps for god sake. his wife worked w with mr. stee. can you imagine how it would be on the other side? so i am glad we this today for the special counsel. i stand with my colleagues on the other side, on this side, the president trump, tried to fire mr. rosenstein or get rid of moeller, would look in his face, be the worst decision of his presidency, create a crisis for this country bee we don't need that. let's move forward in a professional way, but i promise you this, that if you believe that law enforcement should be impartial, then you should care about what i'm i saying. if you believe that the fourth person in the department of justice should tell everybody his wife works for a research firm paid by the democratic
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party and the democratic nominee and that the person they hired hated candidate trump, went to russia to get a bunch of garbage and the court use all that without being informed, then that goes to the heart of the rule of law also and i cannot believe we don't have special counsel for this. this to me undermines as much as anything else the wayr the sysm should work. bias everywhere, wanting to get a result, damn the process. thank you. >> senator durbin. >> mr. chairman, let me first thank you and your staff as well as senator feinstein as a ranking member and the four members who were party to the negotiation that led to our vote today. it was really a demonstration of not only good faith and talent but a determination to come up with a bipartisan work product. i think you for that and i thank you for your leadership in bringing us to this moment. i'm not going to respond directly to my friend, senator graham. i will agree with the outset of this, in my respect and
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confidence in bob mueller. this committee knows him well, as former head of the fbi who in one of the rare occasions had his term extended. we had a chance to know him, , o work within andex to develop a healthy respect for this man's professional ability. i would like to say two or three comments. number one, i think it is good for us to believe and to 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 cannot and should not ignore the elephant in the room, literally and figuratively. we are dealing with a situation senator leahy alluded to what a president has tried to undermine the integrity and our confidence and a law enforcement agencies. what we are trying to do is to protect mr. mueller and his investigation to make sure that it is completed in a professional way. that is the reason the brings us to this moment. senators on the other side can
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say this is not about bob mueller, but let's be honest about it, it is. we've come together because of our concern about his completing this investigation. they say, senator lee left and i just want to salute him in his departure here. even when i disagree with the team makes a thoughtful presentation of constitutional principles. in this particular case though i think that many inwl this committee are so smitten with the former late chief justice that to look for scalia instead of stare decisis. we have an existing decision by the supreme court under morrison that has not been overturned. it may be controversial, debated and maybe just as scalia is right, show that. but it is the controlling law for this moment and that decision get the sound basis for what we achieved today. i want tod address the point me by senator cornyn which is come up repeatedly. how many times have we heard in this committee do what you wishm in the senate judiciary committee but former senator sessions may not approve.
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try to i think he spoke out on that issue yourself. i'm glad your did because the attorney generals approve of what we're doing has nothing to do with our responsibility. we have a responsibly to the constitution and to this committee to deal with the issues in a thoughtful way. regardless of the opinion of the attorney general. let me also add them to vote after the senate judiciary committee which we just had i hope will be noted by republican majority leader. this is an issue that should come to the floor. we have another issue that we share that should come to the floor. it isn't as if we were overwhelmed with work on the senate. the it is in motion floating around about leasing out the senate chamber for events. wedding receptions and memorial services. we use it so seldom. why can't we take up an issue like this when we return that is timely and important and debated on the floor? let's have a vote. it would be almost like the
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united states senate if we had something like that. and i hope that senator mcconnell will consider that possibility. finally let me sayll this. i set a couple things in the senate judiciary committee, its place in history, the reason why i respect this appointment so much. this is a day that i think pays tribute to the history and is part of it and will be remembered, and hope we don't stop with this. there was more to be done in relation to change our laws to penalize those who try to invade the american electoral democratic process. this is the place. this is the venue. this is the only committee with jurisdiction to do. we proved today that we can rise to the occasion. mr. chairman, i hope we can do it again. >> thank you, senator durbin. now senator whitehouse. >> thank you, chairman. brief. very i first wanted to say that i was one of the original co-authors, cosponsors of one of the two nation that it been combined here and when the decision was
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made to go forward on a two x two bases i step back but i kept a very close eye on the negotiations continued forward and i just want to join other colleagues in thinking senator tillis and and senator graham, under booker, senator coons for the good work that they and their staffs did at echo aye te comments about the extraordinary productive and helpful that you and your staff played in bringing a slightly variegated issue, perhaps i can say that without dispute come into a form where we have strong bipartisan vote today. i appreciate that very, very much. i do wish to make the point on my own behalf that i don't think we need to assert that morrison versus olsen must stand as it is in order to defend the statute. i think this statute would stand on its own merit even if the supreme court were to considerably reconsider morrison a versus olson in the same way that we civil service protection which includes judicial review
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of unlawful and improper firings for the public purpose of protecting against over partisanship and the spoils system in the executive branch. there is any reason to believe that judicial review of a filing in this case would withstand constitutional scrutiny on its own muster because there is a similar public policy involved. you don't get special counsel and less you have conflux of interest, and two of the public assured and two that the constitution operate in such a way that we can guarantee that the rulens of law exceeds conflt of interest, that it trump's conflict of interest i think is an important principle that the court would uphold if this law were to come before it. the last thing that i will say it a bad i am very pleased that the chairman sentiment -- chairman steele amendment as a
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principal i consider sacrosanct, which is that during the contact of an ongoing investigation, the investigators and prosecutors never be put under any ongoing obligation to report in or otherwise make disclosures to congress. in rhode island i was the attorney general of my state, it's a stick we don't have das. there are three states with attorney general does everything and rhode island is one of them. so i have overseen a lot of criminal practice at the notion i should be obliged to check in with the rhode island general assembly in an ongoing criminal investigation makes my head want to explode. that is, i think, a truly intolerable intrusion on prosecutorial independence and investigative secrecy which are essential for the enforcement of our laws. it is no different coming here to the federal level for u.s.
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attorney to be put under some structure -- stricture that in the course of an ongoing criminal investigation he or she should be obliged to check in with congress and update them on the status of the investigation. it is equally and bursting at the race on klatt glad we haved well clear of that. that would've been to step into a very, very dangerous and unprecedented area with huge, damaging repercussions. so i particularly appreciate all the negotiators having steered is clear of that particular bear trap. so with that i conclude my remarks, but with great appreciation again, mr. chairman, to you and to your staff. >> senator klobuchar. >> thank you very much, mr. chairman. i would segue from senator whitehouse is fine remarks with bear trap since we actually have
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bears in northern minnesota. >> we do in rhode island. >> okay. >> for the record, we have bears in rhode island. >> okay, good. if anyone didn't have that, this was achieving to the chicago bears by senator durbin. okay, the series for one moment. i really do want to thank you mr. chairman, for your leadership and senator feinstein, the way you worked together on this. your experience matters here and 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 on unfettered executive power. and i think it really shone through the way you are able to work with the authors here on a bipartisan basis senator coons and senator booker, senator tillis and senator graham so i think this is a proud day for the committee and i believe that the 14 to seven vote sends a clear message that not everyone agreed on this but a clear
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message that we must protect this investigation, and investigations going forward as senator tillis so well noted that this is not just about this investigation. it's really about all forward. for me this is usually hit hard as a former prosecutor, and i spent eight years doing that job and we would have cases come to force all the time where maybe the victim wasn't very sympathetic or maybe you knew the defendant was somery kind of white-collar case of someone who liked in the community and you would always have to see your job as being a minister of justice, that your job was to convict the guilty and to protect the innocent, that you had to do your job without fear or favor. and so that's why myy blood bois when i hear some of the comments from people either on tv or threats the firing people, that you have toth follow the law
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wherever it leads you. and that doesn't mean you don't have discretion sometimes to be compassion about how you follow the law, but the law is clear. the intent of the justice department rules are clear when they say that you cannot fire summoned some except for good cause. what this bill simply does is takes the concept and makes it clear that you just can't run all over our rule of law, and that's how ir see it in a very simple, straightforward way. so i just want to thank you again. i hope this does get to the floor. i hope that the leader with us and not just to the wisdom of this committee but also to the wisdom of the american people, allow this investigation and future investigations to be completed without political interference. thank you, mr. chairman. >> senator coons. >> thank you, chairman grassley. i just want to begin by thanking you and your staff, ranking member feinstein and her staff,
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senator booker, , my great partr in crafting this legislation senator tillis and senator graham. this is what the senate should become an opportunity to work together to close differences that we and our staff had to craft this significant an image that should ongoing dedication to transparency and oversight, mr. chairman, and to get a positive result. want to specifically thank erica and andy emmett office who worked very hard with staff in other offices for the dedication to getting us to this point. i have lengthy arguments which i will submit for the record about the constitutionality as my friend and colleague senator booker pointed out, morrison versus also remains good law by 7-1 a wide range of members of the supreme court from justice brennan to justice rehnquist, rendered his opinion as i mentioned previously it's been cited by dozens of course in the three decades the spent on the books.
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most recently by the d.c. circuit and en banc opinion. there are plenty of good class restriction in the executive branch. the president has never had an unfettered unrestrictedd authority over law enforcement in the history of our democracy, and i will just weekly quote, if i could, university of chicago law professor poster.t. the founders did not get the president the power to determine the necessary offices and positions within law enforcement. they gave congress the power to define those offices. the founders did that give the president budgetary control over law enforcement. that par with the congress. the constitution recognize the grand jury which isrc executive power. it is not under the control of the president. there are many different sources i could cite showing that the weight of authority supports the constitution of this bill. i think it is important that we proceeded with the bill once convinced of its constitutionality, and i will submit for the record later some elected republicans, former federal judges, prosecutors appointed by republicans and a
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series of constitutional law professor. why is that important? a question was raised about whether we wereio proceeding rooted in confidence thatin this bill would withstand constitutional muster. i had that confidence. i think it was also important that republicans and democrats today reasserted that whether agreeing with this bill or not we all have view that special counsel most to be able to conclude his investigation without harassment or interference. i also think it's important as senator tillis had said from the very beginning thatha this isn't just about this circumstance, this context, this president. this is about the independence of the department of justice, our respect for the rule of law. i will close by saying this. this is much more than about one person or one president. that no onensuring man or woman in our system is above the law. james madison said if men were angels no government would be necessary. power must never be trusted without a check. this is a critical check and i'm grateful to you, mr. chairman,
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the ranking never, to my good friend senator booker and to our colleagues center tell us and send a grant and her staff of crafting this, for getting to this point and look for to working with you in a bipartisan fashion to ensure it gets to the hearing and the vote on the floor it deserves. thank you. >> you inserts without objection be included. senator booker. >> chairman, you already considered a man of wisdom and now i know you're the patience of job as well to wade through all of the rhetoric of your colleagues so thank you very much for your leadership. i literally just waited this long to get gratitude one more time. i did that get a chance to publicly thank senator feinstein. i know she is no longer but i just wanted to keep upon her my gratitude as well. her and her staff were angelic in terms of their guidance, their stewardship, there was -- >> a couple minutes left in this meeting. we will leave it there and go live to the republican national lawyers ass


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