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Statement Of Senator Patrick Leahy
Executive Business Meeting
March 11, 2004
A week ago today, this Committee met in two
public sessions and also in two closed Executive Sessions to discuss
the report by the Sergeant-at-Arms into the theft of confidential
Democratic computer files by Republican staff from at least 2001 into
2003. Over the last several weeks and months Democratic Senators
have shown great patience with the process. In addition, we have
participated in six hearings for 16 judicial nominees already this
year -- that is as many hearings as were held in all of 1996. We have
helped to confirm two additional judicial nominees, bringing this
President’s total confirmations to more than President Reagan’s entire
first term. And just last week we joined in reporting another 16
presidential nominees, including a dozen judicial nominees.
Last week the Chairman on behalf of the Committee
made the report of the Sergeant-at-Arms publicly available. In the
weeks leading up to our last meetings and after those sessions,
Senators have been consulting about the follow-up investigation that
is now needed. Along with other Democratic Senators, I have reached
across the aisle to urge all Senators to now join us in a request for
a special counsel to conduct the investigation now necessary to
complete action and assure accountability for this unprecedented
partisan espionage within the Senate. Today, I come to urge Senators
to join in that request for the appointment of a special counsel of
the highest integrity and independence to follow up on this matter.
It is my hope that we can move forward in a cooperative, bipartisan
manner to accomplish that appropriate next step.
I was optimistic that we could move this process
forward in a fair way when Senator Hatch repeatedly said, “I am
mortified that this improper, unethical and simply unacceptable breach
of confidential files occurred.” I was optimistic when Senator Cornyn
said at the February 12th meeting of this Committee that we
“ought to seriously consider referring this matter as a Committee to
the law enforcement authorities that have jurisdiction to investigate
and to prosecute criminal matters.” Over the last few weeks a number
of Senators, Republicans and Democrats, have acknowledged that these
matters, now documented in the report of the Senate Sergeant-at-Arms,
warrant further consideration by law enforcement officers. I urge
all Members of the Committee to join in our request for the
appointment of special counsel.
With this in mind I have shared with the Chairman
our letter to the Justice Department making such a referral and
request. I said at our hearing yesterday that we are all glad to hear
that the Attorney General had a successful surgery and that he is on
the mend. Given his condition, ours is effectively a request to
Deputy Attorney General Comey to appoint special counsel for this
matter. He earlier assigned the investigation of the public
disclosure of Valerie Plame’s status as a CIA operative to Patrick
Fitzgerald. Someone of the status and integrity of Mr. Fitzgerald or
of a Mary Jo White, who has conducted important investigations during
Democratic and Republican Administrations, is the type of person who
needs to be appointed to handle this critical matter. Someone who is
removed from politics is essential. As we outline in our letter to
the Justice Department, many of us are concerned that it be special
counsel and that the Attorney General recuse himself from the process
for a number of reasons.
With respect to the
Sergeant-at-Arms’ report, I, again, thank him and his staff for
operating in a nonpartisan way and in the best tradition of the
Senate. The report shows – without question – that the secret
surveillance and stealing of confidential computer files was
calculated, systematic and sweeping in its scope. After reading the
report, there is a lot more that we do know: We know that more than
4,000 computer files were stolen. We know that the stealing of
Democratic computer files occurred over an extended period of time,
from at least 2001 into 2003. We know that numerous staff members of
Republican Senators and Republican Senate leadership were aware of
this activity. We know that what was done was improper, unethical and
likely criminal.
However, after reading the report, there is still
a lot that we do not know. We do not know how the computer files and
the information contained therein were exploited. We do not know
whether the stolen computer files or the information in them were
shared with the Department of Justice directly or indirectly. We do
not know whether they were shared with the White House directly or
indirectly. We do not know whether they were shared with any of the
nominees. We do not know what stolen files or information contained
there in was shared with partisan advocacy groups on the right. Those
are among the questions that a special counsel with the tools to
conduct a criminal investigation and compel testimony and information
may discern.
I hope Senators on this Committee who care about
accountability and the rule of law, and those interested in repairing
the damage by this unprecedented spying campaign will accept our
invitation and join with us in requesting the prompt appointment of a
special prosecutor to conduct the criminal investigation into the
theft of our computer files that is still needed. Join with us to
look past partisan politics and do the right thing. Let us get this
matter into the hands of an experienced prosecutor to do the necessary
investigation and take the concrete steps needed to restore the
foundation of trust eroded in this Committee.
Before we discuss any of the additional judicial
nominations listed on today’s agenda, I also need to speak briefly
about the President’s abuse of the recess appointment power. I
expressed concerns when this President appointed Judge Pickering to
the Fifth Circuit Court of Appeals after the Committee rejected his
nomination in 2002 and the Senate withheld consent to his nomination
in 2003. I outlined my concerns when this President appointed William
Pryor to the 11th Circuit Court of Appeals during a one
week intra-session break after the Senate twice rejected action on
that nomination following extended debate due to the serious concerns
about Mr. Pryor’s ethics and fairness.
When President Clinton used his recess
appointment power for executive branch appointees, Republicans used
secret holds to block judges and other nominees from being confirmed.
Democrats have not acted in that way. Instead, we have made progress
and acted to confirm both judicial and executive branch nominees. We
may be able to make some progress on nominations this week because, as
I understand it, we have an assurance from the White House that the
President will make no judicial recess appointments during the
upcoming recess. As to the future, it is my sense that Democratic
Senators have been both responsible and direct in advising the
Administration that additional progress on circuit court nominations
will depend on this President not abusing the recess appointment power
in the future. I hope the President will work with us and respect the
role of the Senate in the appointments process.
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