[Congressional Record: June 29, 2011 (Senate)]
[Page S4212-S4215]
FBI EXTENSION OF SERVICE
Mr. LEAHY. Mr. President, back on May 12, the President requested
that Congress pass legislation to enable Robert Mueller to continue
serving as Director of the Federal Bureau of Investigation, FBI, for up
to 2 additional years, in light of the continuing threat to our Nation,
the leadership transition at other key national security agencies, and
the unique circumstances in which we find ourselves as the tenth
anniversary of 9/11 approaches. In response to the President's request,
a bipartisan group of Senators drafted and introduced S. 1103, a bill
that would create a one-time exception to the statute limiting the term
of the FBI Director by allowing the term of the incumbent FBI Director
to continue for 2 additional years. Given the continuing threats to our
Nation and the need to provide continuity and stability on the
President's national security team, it is important that this critical
legislation be enacted without delay.
Director Mueller's term expires on August 3, 2011. With the House out
of session this week and the Senate out of session the next, there is
relatively little time left to act. Of the 10 weeks between the
President's request and the expiration of Director Mueller's term, six
are gone already. More than half the time that we had in which to act
has elapsed. If we do not complete action on this matter this week, the
Senate will then be in recess until July 11. That leaves Congress only
3 weeks for all necessary action to be completed by the Senate and the
House of Representatives.
We should be acting responsibly and expeditiously. I have worked
diligently with Senator Grassley in order to prevent a lapse in the
term of the Director of the FBI. We must act on this bill without
further, unnecessary delays. The Senate should take it up, consider it
and pass it, and then the House will need to consider and pass the bill
before the President has the opportunity to sign it. Each of these
steps must be completed prior to the expiration of the Director's
current 10-year term on August 3, 2011. There is no time to waste.
I understand from the Senate cloakroom that all Senate Democrats are
prepared to take up and pass S. 1103 and send it to the House of
Representatives for it to take final action before August 3. We should
do that now, before the Fourth of July recess. There is no good reason
for delay.
[[Page S4213]]
The bill responds directly to the President's request to extend Bob
Mueller's term as FBI Director, and was reported favorably by the
Judiciary Committee on June 16 by a bipartisan majority of the
committee and with the support of the ranking Republican member. I urge
any Senators who have questions about the bill to read the accompanying
committee report, Report No. 112-23, which was filed on June 21, 2011,
and is now printed and available online.
While I would gladly have included others' views in the final
committee report, none were submitted in a timely manner, nor was there
a request for an extension of time to do so. The draft committee report
on the bill was circulated on June 17, 2011, to all committee members.
Pursuant to longstanding Judiciary Committee practice, Senators had 3
calendar days to submit their views. This practice is modeled after,
but more generous than, Senate rule XXVI. The committee report was
filed 4 days after majority views were circulated, but no additional,
supplemental, or minority views had been submitted. It was filed
promptly and made publicly available in the hope that the Senate might
consider this time-sensitive bill this week.
Unlike my Republican predecessors, as chairman I have protected the
minority on the committee and the rights of all Senators. I have done
so even while some have chosen to abuse committee rules and practices
and Senate rules and practices.
Senator Coburn inserted his views, also subscribed to by Senators
Hatch, Sessions, Graham and Lee, in the Congressional Record on June
23. I had offered to include them in the Record on June 22, when they
were belatedly submitted to the committee after the committee report
had been filed. There is nothing in those views that should prevent the
Senate from considering the committee-reported bill expeditiously.
I do not believe that the views Senator Coburn inserted into the
Congressional Record contain any new or compelling legal analysis
supporting the notion that S. 1103 is somehow unconstitutional. They
merely assert without a sound basis that the matter may present a
constitutional concern and the risk of ``dangerous litigation.'' As set
forth in the committee report on S. 1103, and as reaffirmed in a June
20, 2011, memorandum opinion by the Office of Legal Counsel, however,
these assertions are incorrect. The bill before the Senate, S. 1103, is
constitutionally sound and a proper response by Congress to the
President's request.
At the heart of this issue are two key points that remain undisputed.
First, the Director of the FBI serves ``at will'' and can be removed by
the President for any reason. Director Mueller himself testified that
he serves ``at the pleasure of the President.''
Second, this bill was introduced as a response to the President's
request that Congress provide a one-time exception to the 10-year
statutory limit to the term of the FBI Director so that he could extend
Director Mueller's service for up to two more years. Indeed, the text
of the bill plainly states that Director Mueller may continue his term
of service only ``at the request of the President.''
These two points are important because they form core elements for
any constitutional analysis in connection with the appointments clause.
This bill does not seek to impose a legislative appointment on the
President, nor undermine his authority. The committee report describes
the constitutional and legal principle that is central to any
assessment of the constitutionality of this bill: ``Legislation
extending the term of an officer who serves at will does not violate
the Appointments Clause,'' quoting 18 U.S. Op. Off. Legal Counsel 166,
171, 1994. Through four separate legal opinions dating back to 1951,
and reaffirmed as recently as June 20, 2011, the Department of Justice
has recognized this guiding principle. The Constitution's appointments
clause is not offended ``as long as the President remains free to
remove the officer at will and make another appointment.'' U.S. Op.
Off. Legal Counsel 2-3, June 20, 2011. The bill reported by the
committee ensures that the President retains that authority.
Furthermore, the bill does nothing to diminish the authority of the
President.
Senator Coburn's views lack discussion of either the ``at will''
status of the FBI Director or the President's plenary removal
authority. Instead, his views summarily dismiss the extensive legal
analysis of the Department of Justice dating back 60 years by arguing
that the opinions are ``inconsistent.'' The only inconsistency was an
anomalous opinion from 1987 that was withdrawn by the Justice
Department in 1994, after the 1987 opinion was determined to be
``irredeemably unpersuasive.'' Ironically, it is that withdrawn
opinion, one that has no authority, in which critics of the bill seek
to find comfort.
Beginning with an opinion in 1951, and then again in three more
recent legal memoranda, in 1994, in 1996, and most recently on June 20,
2011, the Department of Justice has endorsed the constitutionality of
term extensions like the one provided in the bill for ``at will''
executive officers.
Senator Coburn argues that the value of these Office of Legal Counsel
opinions should be discounted because very few cases have been
litigated concerning these types of term extensions. He fails to
acknowledge, however, that the lack of litigation on this point could
be due to the fact that the constitutional concern on which he relies
simply lacks merit. The fact remains that there is no case and no
persuasive legal authority supporting Senator Coburn's contention that
the bill is unconstitutional.
Also virtually ignored by Senator Coburn's views is the fact that the
bill effectively retains the President's appointment authority. The
President could nominate and then appoint a different FBI Director at
any time before, during, or at the end of the 2-year term extension.
The President is not required by the bill to request that Director
Mueller continue to serve for the full 2 years of the extension. That
is up to the President. These facts are dismissed by Senator Coburn as
``irrelevant'' or ``immaterial'' to the discussion. In fact, they are
just the opposite. The fact that this legislation is being considered
at the behest of the President demonstrates that there is no
legislative branch incursion into executive authority. Because S. 1103
is in direct response to the President's specific request for
legislation creating a one-time exemption to the 10-year term limit of
the FBI Director, the bill serves to protect the authority of the
President to choose who he wants to lead this executive agency. That is
wholly consistent with the purpose of the appointments clause.
Senator Coburn's attempts to distinguish the limited, relevant case
law are also unavailing. As noted in the committee report, Judge
Norris's concurring opinion in the case In re Benny, 812 F. 2d 1133,
9th Cir. 1987, is not on point, as that case involved officials who
were only removable for cause. Senator Coburn's reliance on Justice
Scalia's dissent in Morrison v. Olson, 487 U.S. 654, 1988, is similarly
misplaced. The lengthy quote of Justice Scalia's in the minority views
is drawn, for example, from a discussion of the separation of powers
doctrine, not from Justice Scalia's discussion of the appointments
clause. The Morrison decision was about the constitutionality of the
independent counsel statute, not a simple extension of a statutory term
limit. The Morrison decision held that the statute at issue was
constitutional because it did not ``impermissibly undermine the powers
of the Executive Branch'' or ``prevent[] the Executive Branch from
accomplishing its constitutionally assigned functions.'' That is all
the more true for S. 1103, which was requested by the President and
does nothing to impinge upon the President's appointment or removal
power.
In his concluding remarks, Senator Coburn concedes that he is not
asserting that S. 1103 is unconstitutional. Instead, Senator Coburn
retreats to a concern with what he characterizes as the ``small
chance'' of possible litigation. The supposed litigation risk is not a
good reason for Senator Coburn's multistage approach when a simple,
one-time term extension will accomplish the goal. This is particularly
true when the committee reported bill is constitutional.
The FBI is not troubled by the supposed exposure ``of Director
Mueller's authority to dangerous litigation risk.'' Senator Coburn does
not cite any operational concern raised by the FBI or anyone else in
law enforcement
[[Page S4214]]
concerning this supposed litigation risk. The FBI Director and the
Department of Justice do not seem concerned about this supposed
litigation risk. I am confident that we would have heard from the FBI
and other law enforcement groups if there was any concern that this
bill would somehow undermine the law enforcement or intelligence
operations of the FBI. To the contrary, S. 1103 enjoys the strong
support of the National Fraternal Order of Police, the International
Association of Chiefs of Police, and the National Association of Police
Organizations.
The Justice Department does not share Senator Coburn's concerns. The
Office of Legal Counsel recently reaffirmed the constitutionality of
the bill in a new memorandum dated June 20, which is included in the
appendix to the Senate committee report and rests upon 60 years of
constitutional interpretation. The White House is not concerned.
Neither am I. The bill that the committee reported and I support is
constitutional and does not raise any real risk.
Senator Coburn has known since he raised his alternative approach
that there are two major problems with it. The first problem I have
already discussed. It is wrongly predicated on a constitutional problem
that does not exist. The bill reported by the Senate Judiciary
Committee is a term extension of a limit that Congress imposed on the
term of service of the Director of the FBI. Indeed, as the witnesses at
our June 8 hearing pointed out, the logic of Senator Coburn's concern
could mean that the 10-year limit Congress imposed on the term of
service of the FBI Director would itself be constitutionally suspect.
The supposed justification for Senator Coburn's cumbersome legislative
plan is just wrong. The reported bill, S. 1103, which was initially
drafted by Senator Grassley and made more explicit by the committee, is
constitutional.
The second major problem with Senator Coburn's approach is that it
would necessitate the renomination of Director Mueller, and then his
reconsideration and reconfirmation by the Senate after enactment of
Senator Coburn's alternative bill and before August 3. That is an
additional, unnecessary and, I might suggest, dangerous complication. I
do not want Americans to be approaching the tenth anniversary of 9/11
without an FBI Director in office. The distractions to Director Mueller
created by the extended proceedings on this legislation are damaging
enough.
The extension of Director Mueller's service leading the FBI should
not fall victim to the same objections that have obstructed Senate
action on other important presidential nominations and appointments. I
have spoken often about the unnecessary and inexcusable delays on
judicial nominations. Even consensus nominees have faced long delays
before Senate Republicans would allow a vote.
Since President Obama was elected, we have had to overcome two
filibusters on two Circuit Court nominees who were reported unanimously
by the committee. These judges--Judge Barbara Keenan of the Fourth
Circuit and Judge Denny Chin of the Second Circuit--were then confirmed
unanimously once the filibusters were brought to an end. These are
currently 16 judicial nominees who were reported unanimously by all
Republicans and Democrats on the Judiciary Committee and yet are stuck
on the Senate Executive Calendar because Senate Republicans will not
consent to vote on them. These are consensus nominations that should
not have been delayed while the Federal courts are experiencing a
judicial vacancies crisis.
This pattern of delay and obstruction has not been confined to
judges. President Obama's executive nominations have been subjected to
the same unfair treatment. The first five U.S. attorneys appointed by
President Obama were delayed more than 2 months for no good reason in
the summer of 2009. These are the top Federal law enforcement officers
in those districts and yet it took from June 4 to August 7 before
Senate Republicans would consent to their confirmations. They were then
confirmed unanimously. The Chairman of the United States Sentencing
Commission was similarly delayed unnecessarily for almost 6 months from
May 7 until October 21, 2009. He, too, was ultimately confirmed without
opposition, but after needless delay.
Among a slew of other troublesome examples are these: One Republican
Senator objected to a nominee to serve on the Federal Reserve Board of
Governors because, according to that Senator, the nominee lacked the
necessary qualifications. The nominee was a Nobel Prize winner and MIT
economics professor. Another Republican Senator is blocking the
confirmation of two SEC Commissioners until he extracts action from the
SEC related to a case against the Stanford Financial Group. A group of
Senate Republicans have sent a letter to President Obama vowing to
oppose any nominee to be Director of the Consumer Financial Protection
Bureau. Republican Senators are vowing to block President Obama's
nominee to serve as the Secretary of Commerce.
In a particularly illustrative case, one Republican Senator lifted
his hold on the nomination of the Director of the U.S. Fish and
Wildlife Service only after the administration acceded to his demands
and issued 15 offshore oil drilling permits. Shortly thereafter,
another Republican Senator placed a hold on the very same nomination to
force the Interior Department to release documents on the Department's
``wild lands'' policy. It did not end there. When that dispute was
resolved, a third Republican Senator reportedly placed a hold on the
nominee, demanding a review of the protected status of wolves. That
nominee has still not been confirmed.
Regrettably, Senate Republicans have ratcheted up the partisanship,
limiting the cooperation that used to allow nominations to move forward
more quickly. We cannot and should not take risks with this critical
term extension for the head of the FBI. I do not want to see another
important nomination subjected to holds and delays. I do not want to
see another well-qualified national security nominee used as leverage
by the Republican Senate minority to extract other unrelated
concessions. That is what Senator Coburn's alternative plan invites.
I recently outlined the obstruction of key national security-related
nominations, the Deputy Attorney General and Assistant Attorney General
for National Security. I do not want to see that happen, again, with
the nomination of an FBI Director, but we have no guarantee that the
President's nomination of an FBI Director would be treated any
differently.
Republicans played ``chicken'' with a government shutdown earlier
this year. We can see the same dynamic developing on the debt ceiling
and the budget. Likewise, many Republicans, including their House
leaders, who contended that the War Powers Act was unconstitutional
when the President was a Republican, are now seeking to use it as a
partisan cudgel to diminish this President, with little regard for the
damage that does to America, NATO and the effort to end the brutal
repression of the Libyan people by Moammar Qadhafi.
The Senate is finally this week seeking to complete action on a
bipartisan, leadership-supported legislative approach to reforming
Senate consideration of presidential nominations. It has taken weeks
and months to get this far. Senate Republicans undermined their
leadership and failed to support Senator Alexander and Senator
McConnell, who were instrumental in developing the Presidential
Appointment Efficiency and Streamlining Act, S. 679. The Senate has
been stuck trying to complete this bill since June 16, when the
majority leader could not even get consent to proceed to the bill.
Bills that used to take 2 hours of floor time now consume 2 weeks.
Republican Senators who could not be bothered with conducting oversight
when a Republican was in the White House are now adamant that the
Senate should not streamline any presidential nominations, arguing that
doing so would undercut Senate opportunities to conduct what they call
oversight. This is just another example of how virtually everything is
viewed through a partisan lens since the American people elected
President Obama.
Senator Coburn has known since we began to consider the President's
request to extend the FBI Director's term that his plan could not be
considered a viable alternative unless there was an agreement from
Senate Republicans to ensure that the Senate would
[[Page S4215]]
complete its work and have the FBI Director in place at the end of the
summer. That agreement would take the form of a unanimous consent
agreement in the Senate, entered into by all Senators, and locked in on
the Record so that it could not be changed without unanimous consent.
That has not occurred. That is the only way to ensure Senate action on
a nomination before August 3. The House would also have to agree to
such an approach.
Senator Coburn has been unable to convince his leadership and the
Republican caucus to agree. It may be because some do not want to
agree. It may be because some do not want to give up the ``leverage''
such a nomination might provide to them on other matters. Maybe they
just do not want to make anything too ``easy'' on this President.
Whatever the reasons, no such agreement has been forthcoming in the
weeks it has been under consideration.
In fact, at the Judiciary Committee business meeting on the bill,
when Senator Coburn could not offer the assurances required to lock in
prompt and timely consideration of a subsequent nomination of the FBI
Director after enactment of legislation and before August 3, he did
suggest that his side of the aisle would forego several steps of the
standard process for considering nominees. He offered to waive the
questionnaire, the background check, and the confirmation hearing on
Director Mueller. But this commitment was illusory, because not even
all of the Republican members of the Judiciary Committee agreed.
Senator Cornyn, having questioned Director Mueller's ``management
capacity,'' indicated that he wanted confirmation hearings and the
opportunity to ask questions. Of course, the Senator from Texas was
within his rights to say so. But that shows the practical difficulties
of following Senator Coburn's complicated, two-part scenario with no
guarantee of it being completed by August 3.
Republican Senators lectured us on the ease with which the majority
leader should be able to obtain cloture on a new nomination of Director
Mueller. That again makes my point. Without a binding agreement, it
could take days to consider the nomination, perhaps a full week.
We have just witnessed Senate Republicans filibustering for the first
time in American history the nomination of the Deputy Attorney General
of the United States. They did that just last month. While Senator
Cornyn opined that the renomination of Director Mueller should be able
to get 60 votes for cloture, and we should be able to end a filibuster
of the nomination on the Senate floor, he also said that he could not
control other Republican Senators.
To complete action in accordance with Senator Coburn's alternative
plan would mean not only passing legislation but the Senate receiving,
considering and confirming the renomination of Director Mueller. I was
chairman of the Judiciary Committee back in 2001 when the Senate
considered and confirmed Director Mueller's initial nomination within
two weeks. I worked hard to make that happen. Regrettably, given the
current practices of Senate Republicans, and their unwillingness to
agree on expedited treatment for President Obama's nominations, it is
foolhardy in my judgment to think that all Senate Republicans will
cooperate without the binding force of a unanimous consent entered in
the Record.
Let me mention just one more recent example. Consider the time line
of the nomination of the Assistant Attorney General for the National
Security Division at the Department of Justice. The nominee was
approved unanimously by the Senate Judiciary Committee and unanimously
by the Senate Select Committee on Intelligence, and approved
unanimously by the Senate just yesterday. That nomination took 15 weeks
for the Senate to consider--and she was approved unanimously. It took
more than a month just to schedule the Senate vote after the nomination
was reported unanimously by the Senate Select Committee on
Intelligence, and that was 2\1/2\ weeks after it was unanimously
reported by the Senate Judiciary Committee. This was a nominee with
whom many of us were familiar and who faced no opposition.
Of course, in the case of the FBI Director, there is no necessity to
require a new nomination. The simple one-time extension contained in S.
1103 does the job. It provides all the authority needed for the
President to ask Director Mueller to stay on and for him to do so
without additional action by the Senate. The separate renomination of
Director Mueller is not required.
As I have said, all Senate Democrats are prepared to take up and pass
S. 1103, and send it to the House of Representatives for it to take
final action before August 3. That is what we should be doing. We
should do that now, before the Fourth of July recess. There is no good
reason for delay. All that is lacking is Senate Republicans' consent.
So, as they stall in moving legislation to respond to President
Obama's request to extend Director Mueller's term, Senate Republicans
will not commit to the unanimous consent request necessary to allow
Senator Coburn's alternative to become a possibility. Seven of the
eight Republican members of the Senate Judiciary Committee voted
against the bill to extend Director Mueller's term. Senator Coburn had
said that if his alternative was not adopted by the committee, he would
vote for the bill, but then he changed his mind and voted against. He
then said that he will vote for the bill, S. 1103, when it is
considered by the Senate, but Senate Republicans--perhaps including
Senator Coburn himself--are now objecting to considering it. We have
lost another two weeks since the bill was reported by the Judiciary
Committee.
Finally, I observe that this is not the only matter the Senate needs
to consider before August 3. There is the matter of the United States'
default unless the debt ceiling is raised by that time. There is the
need to pass the America Invents Act, as passed by the House, to spur
innovation and jobs. There are currently 10 executive nominations ready
for Senate action reported by the Judiciary Committee and 18 judicial
nominations ready for final consideration to address the judicial
vacancies crisis. There is much to do, little time, and even less
cooperation.
This important legislation, S. 1103, would fulfill the President's
request that Congress create a one-time exception to the statutory 10-
year term of the FBI Director in order to extend the term of the
incumbent FBI Director for 2 additional years. Given the continuing
threat to our Nation, especially with the tenth anniversary of the
September 11, 2001, attacks approaching, and the need to provide
continuity and stability on the President's national security team, it
is important that we respond to the President's request and enact this
necessary legislation swiftly. The incumbent FBI Director's term
otherwise expires on August 3, 2011. I urge the Senate to take up this
critical legislation and pass it without further delay.
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