<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:31446.wais]
S. Hrg. 109-722
CONFIRMATION HEARING ON THE NOMINATION OF PAUL J. MCNULTY, OF VIRGINIA,
TO BE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
FEBRUARY 2, 2006
__________
Serial No. J-109-125
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 4
prepared statement........................................... 112
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 5
prepared statement........................................... 115
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
PRESENTERS
Allen, Hon. George, a U.S. Senator from the State of Virginia
presenting Paul J. McNulty, of Virginia, Nominee to be Deputy
Attorney General, Department of Justice........................ 1
Warner, Hon. John, a U.S. Senator from the State of Virginia,
presenting Paul J. McNulty, of Virginia, Nominee to be Deputy
Attorney General, Department of Justice........................ 3
STATEMENT OF THE NOMINEE
McNulty, Paul J., of Virginia, Nominee to be Deputy Attorney
General, Department of Justice................................. 7
Questionnaire................................................ 9
QUESTIONS AND ANSWERS
Responses of Paul J. McNulty to questions submitted by Senators
Grassley, Sessions, Leahy, Kennedy, Kohl, Feingold, Schumer,
and Durbin..................................................... 54
Responses of Paul J. McNulty to follow-up questions submitted by
Senator Durbin................................................. 105
SUBMISSION FOR THE RECORD
Canterbury, Chuck, National President, Fraternal Order of Police,
Washington, D.C., letter....................................... 111
NOMINATION OF PAUL J. MCNULTY, OF VIRGINIA, TO BE DEPUTY ATTORNEY
GENERAL, DEPARTMENT OF JUSTICE
----------
THURSDAY, FEBRUARY 2, 2006
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:05 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, DeWine, Sessions, Leahy,
Kennedy, Schumer, and Durbin.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. The Judiciary Committee will now proceed
with the hearing for the nomination of Paul J. McNulty, to be
Deputy Attorney General for the Department of Justice.
We have waited just a few moments here for Senator Warner,
who had been on the premises. But it is five after, so we have
Senator George Allen, our distinguished colleague, with us.
So let us proceed with your introduction, Senator Allen.
PRESENTATION OF PAUL J. MCNULTY, NOMINEE TO BE DEPUTY ATTORNEY
GENERAL, DEPARTMENT OF JUSTICE, BY HON. GEORGE ALLEN, A U.S.
SENATOR FROM THE STATE OF VIRGINIA
Senator Allen. Thank you, Mr. Chairman and members of the
Committee. I thank you for the opportunity to appear before
this Committee to relate to you and tell you about my friend,
Paul McNulty. He is here today with his wife, Brenda, and two
of their four children, Annie and Corey. Their two oldest
children are in college. One is a freshman--Joe is a freshman
at James Madison University, over in the Shenandoah Valley of
Virginia.
Let me just say one thing personally before I get into the
attributes about Paul McNulty. In the midst of preparing for
this trial, or this hearing, his mother passed away and they
had the funeral earlier this week. Today would actually be her
82nd birthday. Our thoughts and prayers are with Paul, and we
know that his mother is looking down, joining her husband who
passed away a few years ago, and looking down with pride on
their son, Paul, and his opportunity to continue to serve this
country.
I have known Paul since the days I was Governor. One of the
key things we tried to do, and successfully did in Virginia was
abolish the lenient, dishonest parole system and institute
truth in sentencing. Paul McNulty was one who I counted on as a
very loyal, expert, knowledgeable adviser. And thanks to those
reforms we made in Virginia, Virginia is safer.
Back in 2001, my colleague, Senator Warner, who will be
here undoubtedly, we had the honor of recommending to President
Bush the nomination of Paul McNulty to be U.S. Attorney for the
Eastern District of Virginia. The Senate confirmed Paul McNulty
on September 14, 2001, just after we were attacked by the
terrorists. The U.S. Attorney's office in the Eastern District
of Virginia has played a central role in the war on terrorism
ever since.
Now, there is not time to talk about all the different
important terrorism cases that Paul has been involved in and
has prosecuted since he has been in office, but let me relate
to the Committee two of these cases that Paul has overseen
personally during his time as U.S. Attorney.
First, of course, is the case of Zacarias Moussaoui. I know
that the Chairman joined me in saying let's make sure that the
families could somehow view those proceedings since the
victims' families are all over the country. Paul was engaged in
this effort in unprecedented victim outreach in connection with
that case.
Over the years since Moussaoui was indicted, Paul's office
has interviewed over 2,000 victims and maintained regular
contact with more than 5,000 victims or family members. This
effort, I think, demonstrates Paul's compassion for the victims
of crime and his long-standing commitment to victims rights.
Also, last November, Paul's office obtained a conviction of
Ahmed Omar Abu Ali, an American citizen who joined an al Qaeda
cell. Abu Ali had plotted to assassinate the President and
hijack airplanes. As Paul has said, the evidence presented
during that trial proved that Abu Ali was a, quote, ``dangerous
terrorist who posed a grave threat to our national security.''
The sentencing hearing will be later on this month, but Abu Ali
faces a minimum sentence of 20 years for this crime.
Under Paul's leadership, the U.S. Attorney's office in the
Eastern District of Virginia has accomplished a great deal in
traditional law enforcement areas, working with localities in
the State combatting gangs. The Eastern District of Virginia
led the Nation in the prosecution of gun crime for the past 3
years, it lead the Mid-Atlantic region in drug trafficking
prosecutions, and also dismanted a high-tech piracy group that
operated servers around the world distributing millions of
dollars worth of illegal software and movies.
Paul has accomplished these things by promoting a series of
initiatives, and what I think was very important, drawing upon
the resources of other Federal agencies, as well as developing
close working partnerships with State and local law
enforcement.
I am pleased, Mr. Chairman, to say to you that I think that
the President has chosen very well in nominating someone with a
strong background in prosecuting terrorism for this important
position as Deputy Attorney General. Paul will be a thoughtful,
knowledgeable, decent, caring, excellent addition to the
Department of Justice as we continue to fight the global war on
terror and keep Americans safe.
I hope, Mr. Chairman, that you all have a good hearing, and
I respectfully urge you all to move as quickly as possible.
Paul McNulty has my very strongest recommendation for this
position.
I thank you so much for allowing me to be here, and now I
am joined--as I said, he would be here directly and here he is,
the senior Senator from Virginia.
Chairman Specter. Thank you very much, Senator Allen. We
knew that Senator Warner was on the premises and we waited to
accorded him the status as senior Senator. We later heard that
he had commitments in the Intelligence Committee. So we welcome
you here, Senator Warner, and look forward to your testimony.
PRESENTATION OF PAUL J. MCNULTY, NOMINEE TO BE DEPUTY ATTORNEY
GENERAL, DEPARTMENT OF JUSTICE, BY HON. JOHN WARNER, A U.S.
SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Let the record show I was here at precisely
9:28 this morning.
Mr. Chairman, I have listened to my distinguished friend
and colleague here give a very comprehensive statement. I will
just ask unanimous consent to place my statement in the record.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Warner. Mr. Chairman, you and I came up through the
prosecutorial ranks of the various departments that we have
served in, in the Justice Department, and as I look on this
distinguished public servant's career, it is really
extraordinary. He has had the background and the experience to
take on the challenging tasks in the Department of Justice to
which our President has appointed him. He has my whole-hearted
support. I assure this Committee that he will fulfill, and even
exceed the expectations that all of us have as to his
capability, knowledge of the law, respect for fairness and
equality of justice for all.
So with that, Mr. Chairman and distinguished ranking
member, Mr. Kennedy, I will put in my statement and you can get
on with your hearing.
Chairman Specter. Thank you very much for being with us
Senator Warner, Senator Allen. Mr. McNulty is a Virginian at
the moment. He is also a Pennsylvanian. He was born and raised
in Pennsylvania, and if he were being presented to the Armed
Services Committee, I might be presenting him instead of
Senator Warner and Senator Allen.
Senator Allen. Notwithstanding that background, we did
endorse him for being U.S. Attorney for the Eastern District of
Virginia. He had a breadth of experience.
Chairman Specter. Your endorsements are very amendable.
Senator Warner. Mr. Chairman, Senator Allen and I have been
working with the White House and the Department of Justice on
the successor. 29 individuals came forward to apply for this
position, partially because of the extraordinary heritage that
this distinguished gentleman left in that office. Hopefully, we
will be making that announcement together with the President
soon as to his successor. I thank you.
Chairman Specter. Thank you very much, Senator Warner.
Thank you very much, Senator Allen.
Paul McNulty comes to the proceedings today with an
outstanding record, a graduate of Grove City College, 1980,
Capital University Law School in 1983. Extensive experience as
a prosecutor, has been the United States Attorney since 2001,
and before that was the Principal Associate Deputy Attorney
General, was Chief Counsel to the Office of Majority Leader of
the House of Representatives. He is an adjunct professor from
Grover City College. I will ask without objection that his
extensive biographical material be made a part of the record.
The position of Deputy Attorney General is one of enormous
importance, as the administrative officer right behind the
Attorney General on the Department of Justice, which has so
many, many responsibilities.
Before swearing in, Mr. McNulty, let me ask Senator Kennedy
if he has any opening comments.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you, Mr. Chairman. I know we are
going to be joined by Senator Leahy in just a few moments. If I
could just take a moment to welcome Mr. McNulty.
I understand you served on the Legal Service Program, and
you also received the O'Neill award, as a student. If that is
after Tip O'Neill, I would be interested in the reach of that
award.
I would like to put my full statement in the record.
I think you are very much aware of the issues about the
extent of Executive power and authority that is part of the
national debate and discussion at the present time. You are
going to be in a very important position on advising on the
legality and the justification for that kind of authority, the
whole range of accountability on prosecutions in the CIA, I am
interested in how you dealt with those individuals. The
President has spoken of accountability, and a number of these
individuals that have been turned over from the CIA to your
shop for processing and for prosecution. I want to hear you on
this issue because this is enormously important for obvious
reasons.
The range of civil rights issues--what the Department has
been doing, what it has not been doing, the selection of
various individuals in the Civil Rights Division, particularly
the provisions of the Voting Rights Act, the cases that were
brought and not brought. The areas of immigration, the
difficulty and the complexity that we are finding now, that has
raised enormous kinds of challenges since the procedures were
changed by the Attorney General, and that raised concerns as to
the fairness and integrity of this process. These are just some
of the very important areas that you will have, and do have,
and have had important responsibilities for, and we are looking
forward to hearing you out on some of these issues.
I will put my full statement in the record and look forward
to the question and answer period.
I thank the Chair. I ask that the full statement be put in
the record.
Chairman Specter. Thank you, Senator Kennedy. Your full
statement will be made a part of the record.
[The prepared statement of Senator Kennedy appears as a
submission for the record.]
Chairman Specter. I now yield to the distinguished ranking
member, Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. I apologize for the
delay, but I have been working, as you know, along with Senator
Durbin and others on the PATRIOT Act.
As has already been said, of course, this is for the No. 2
position. The previous deputies, James Comey and Larry
Thompson, had extensive experience as prosecutors. When Tim
Flanagan was proposed for this, I questioned the fact that he
did not have experience. I am worried that neither the current
Attorney General, nor the Associate Attorney General, nor the
Assistant Attorney General chosen to head the Criminal
Division, nor the Solicitor General, had real experience as a
prosecutor before going to the top law enforcement office in
the country.
The President withdrew Mr. Flanagan's nomination. Of
course, anyone who reads the papers still sees the questions
regarding that nomination. I joined Senator Durbin in a letter
yesterday to the Attorney General about the role that Mr.
Flanagan's dealings with Jack Abramoff and David Safavian
played in that decision. We will see whether I get a response
back. The Justice Department rarely responds to my letters,
notwithstanding their Attorney General's pledge under oath at
his confirmation hearings to be more responsive.
Mr. McNulty does come to us as the Acting Deputy Attorney
General and a U.S. Attorney for the Eastern District of
Virginia, so he has had supervisory experience with criminal
matters. I am not sure how many cases he has personally
prosecuted, but I think as Deputy Attorney General,
prosecutorial experience and prosecutorial judgment is going to
be sorely tested. There are a lot of very delicate
investigations that you have to oversee, and prosecutorial
experience will be beneficial, may be critical, and the reason
I keep mentioning this, Mr. McNulty, is that nobody else has
prosecutorial experience. You have had supervisory
prosecutorial experience, and that is a plus. We would like to
see more, especially when the President has such an expansive
view of his power, and the Justice Department is the only place
left that might serve as a check if that power is being used
illegally.
The most recent Deputy Attorney General, James Comey, a
respected prosecutor and a long-time Republican, seemed to many
to have taken that position very seriously, and he appointed a
committed, independent prosecutor to carry out investigations
within the Bush administration. He questioned the President's
authority to conduct warrantless wiretapping. He defended
career attorneys who sought to put the brakes on over expansive
assertions of Executive power. He refused to be a ``yes'' man,
and of course, he got pushed out of the Department.
Unfortunately, the position of Deputy is one where you are
supposed to be willing to speak truth to power and not be a
``yes'' man. In fact, that is why I voted against the current
Attorney General, because I felt that he would not be willing
to say no to anything from the White House.
I know the importance of that. Ultimately the Attorney
General's duty is to uphold the Constitution and the rule of
law, and not labor to circumvent it. Both the President and the
Nation are best served by an Attorney General who gives sound
legal advice and takes responsible action without regard to
political considerations, not one who develops legalistic
loopholes to serve the ends of a particular President or
administration. That holds true for the Deputy Attorney
General, and that holds true whether it is a Democratic or
Republican administration.
We see the extraordinary rendition of prisoners to the
``black site'' prisons in the former Soviet Union, something
that every President, Republican and Democrat, had condemned
before this administration. Now we are doing it. We saw the
scandal of Abu Ghraib. We saw the withdrawn torture memo, and
we saw the outgoing Justice of the Supreme Court remind us all
very forcefully that nobody is above the law, not even this
President, not even at a time of war.
I first met Mr. McNulty while he was serving as staff for
Republicans on the House Judiciary Committee. I remember you as
an extraordinarily hard-working person, and I suspect you still
are. I would hope that you would be able to follow Mr. Comey's
example of independence and the example of other Republicans
like Elliot Richardson and William Ruckelshaus, who left rather
than violate their principles and the law.
The Eastern District has been the go-to district for
terrorism prosecutions, national security issues, and detainee
abuse allegations. I think we need to understand how much you
would be willing, even under those circumstances, to question
any assertions of presidential power and look out for the
individual liberties of ordinary Americans and protecting the
law.
According to a recent letter from the Department of Justice
to Senator Durbin, since the beginning of the war in
Afghanistan in 2001, 20 allegations of detainee abuse by
American civilians, 20, have been referred to the Department of
Justice. All but one of these cases have been assigned to your
district with a task force under your supervision. Only one of
these allegations has resulted in an indictment, and that one,
incidentally, was the one sent to a different district than
yours. These have hurt American credibility in the world. The
press reports say these referrals include one case in which a
detainee was killed in CIA custody within 45 minutes of the
beginning of interrogation, and the CIA's own Inspector General
found the possibility of criminality.
It has been 18 months since the creation of the task force
to investigate these. I want to know why, when the military has
prosecuted detainee abuse cases--and the Eastern District of
North Carolina has returned the one indictment so far--nothing
has come out from your task force.
I want to know about the President's warrantless domestic
spying program, how you have responded to this. We all want to
help stop terrorists. I helped write and pass the USA PATRIOT
Act. I am working on ways to get it re-authorized, but we have
to have some honest answers if we are going to be able to do
that, and if it is going to have credibility so the American
people can trust it.
Mr. Chairman, I went over my time, but I appreciate your
consideration allowing that.
Chairman Specter. Thank you very much, Senator Leahy.
Mr. McNulty, if you would now stand for the administration
of the oath.
Do you solemnly swear that the testimony that you will give
before this Judiciary Committee will be the truth, the whole
truth and nothing but the truth, so help you God?
Mr. McNulty. I do.
Chairman Specter. Thank you. Mr. McNulty, let us begin with
the introduction of your family. I see some beautiful people
sitting behind you. I infer they are your family. We do not
ordinarily have people of that beauty here, so if you would
introduce your family, we would appreciate it.
[Laughter.]
Mr. McNulty. Thank you very much, Mr. Chairman, and Senator
Leahy, Senator Kennedy, Senator Durbin, for welcoming me here
today.
I am very pleased to introduce my family to you. My wife
Brenda of nearly 25 years is here with me today, and two of my
four children. As Senator Allen said, two of my children are in
college. We thought it best to leave them there. My daughter
Annie and my daughter Corrie are here, and my niece, Carrie
Quinn, is here as well, as well as a number of good friends
that have made the effort to be with me today in this room.
Thank you very much for giving me the opportunity to
introduce them.
Chairman Specter. Thank you, Mr. McNulty. We would be
pleased to hear any opening statement you care to make.
STATEMENT OF PAUL J. MCNULTY, OF VIRGINIA, NOMINEE TO BE DEPUTY
ATTORNEY GENERAL, DEPARTMENT OF JUSTICE
Mr. McNulty. Thank you, Senator. I only want to make a
couple brief points, and allow you to ask your important
questions to me.
Mr. Chairman, in my view, there is no finer agency of
Government, perhaps anywhere n the world, than the Department
of Justice. When yo consider the mission of the Department of
Justice, the importance of what the Justice Department is
responsible for doing in protecting people's liberties and
enforcing law, when you consider the men and women of the
Department of Justice and the broad range of talents, the
skill, the courage, the dedication that they have, when you
consider the commitment to the highest professional standard
that DOJ stand for and has stood for for decades, it really is
an extraordinary agency of Government. And, again, there may be
nothing like it in all the world.
In particular, over the pst 4 years, I have had the
privilege of leading about 250 men and women who are part of
the Department of Justice in the United States Attorney's
Office in the Eastern District of Virginia. And of all those
100,000 plus employees of the Department of Justice, these 250
or so folks, in my view, are among the finest of all of the DOJ
people. Their dedication and skill and kindness is really
extraordinary, and what they have accomplished over the past 4
years is a big reason why I am here today. It has been an honor
and a privilege to serve them.
I say that because my second point to you, members of this
Committee, is that the Deputy Attorney General is entrusted to
guard all of that. The Deputy Attorney General is entrusted
with this extraordinary legacy that the Department of Justice
has of guarding the rule of law, and I see it, if I'm
confirmed, as my duty to enhance, to strengthen, to build what
has been established so well over the decades.
So, therefore, Mr. Chairman and members of the Committee, I
pledge this to you. I pledge that if I am confirmed, that I
will use all of my energies, by the grace of God, to act with
integrity, to do what is right, and to be guided only by the
law every day I have the opportunity and the privilege of
serving as Deputy Attorney General, if I am confirmed.
Thank you for your courtesy, Mr. Chairman.
And I thank Senator Allen and Warner, by the way, for their
kind introduction, and the President for the honor of being
nominated to this very significant position.
I welcome your questions to me.
[The biographical information of Mr. McNulty follows:]
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Chairman Specter. Thank you very much, Mr. McNulty. We will
now proceed with our practice of 5-minute rounds for members.
A key issue is our oversight authority over the Department
of Justice. This is a subject which I took up in detail with
the Attorney General. I sent you a letter summarizing the
oversight authority of the Judiciary Committee as summarized in
a CRS statement of the law, and I told you earlier this
morning, when we talked briefly, that I would be asking you
about it. And to quote some of the pertinent sections, the
Congressional Research Authority cites the law as follows,
quote: ``The Department of Justice has been consistently
obliged to submit to Congressional oversight regardless of
whether litigation is pending, so that Congress is not delayed
unduly in investigating misfeasance, malfeasance or the
maladministration in the Department of Justice or elsewhere.''
This includes, according to this summary, quote, ``The
testimony of subordinate Department of Justice employees such
as line attorneys and FBI field agents, which was taken
formally or informally, and included detailed testimony about
specific instances of the Department's failure to prosecute
alleged meritorious cases.'' And the Committees have been
provided with, ``documents respecting open or closed cases that
include prosecutorial memoranda, FBI investigative reports,
summaries of FBI interviews, memoranda and correspondence
prepared during the pendency of cases,'' and it goes on.
I would like your specific agreement that that does
represent the authority of this Committee on oversight of the
Department of Justice.
Mr. McNulty. You have my agreement.
Chairman Specter. Thank you. I like your brevity almost as
much as I like your agreement.
We are having oversight hearings, as you know, on the
presidential authority on electronic surveillance, and the
Attorney General will be coming in on Monday to testify. I do
not intend to get into those substantive matters with you
because we will be hearing from the No. 1 man in the
Department. And you do not speak for the Department at this
time until--well, you are Acting Attorney General, Acting
Deputy Attorney General, but I do seek your response on the
question of access by the Committee to legal memoranda prepared
by the Office of Legal Counsel or otherwise, your view as to
the propriety of the Committee having access to that in order
to more fully question the Attorney General?
Mr. McNulty. Senator, I understand that that's an important
question that's going to be faced by the Committee and the
Department of Justice. As I've just responded to you a moment
ago, I have a strong commitment to the role of oversight, and
to making sure that this Committee has what it needs to fulfill
its responsibility. I have probably the unusual experience, as
Senator Leahy referred to briefly about my experience on the
Judiciary Committee. I spent 12 years on Capitol Hill, and I
spent a lot of years in oversight work. I have dealt with the
Department of Justice on numerous occasions. I can't even think
of all the times that I was working on situations where we had
to get documents or deal with the Department, and we had to
work through difficult issues. Sometimes we came up with
accommodations where the chairman, Ranking Member looked at
things, sometimes we were able to provide more access.
I'm afraid that today, sitting here, though, I'm not able
to give a response about the availability of certain documents
in relation to this issue because I just haven't been involved
with it. I became just recently aware of the fact of what this
request is. I don't know what considerations already have
occurred at the Department. I know the Department will be
working with the Committee to figure out how to work through
that challenge, but I can't provide specific information about
what can be provided or can't be provided as we sit here today.
There's a long history to this availability of OLC
opinions, and I have to learn more about it myself, and I
certainly have to consult with others at the Department of
Justice about how that's going to be worked out.
Chairman Specter. Mr. McNulty, moving on to another
subject, on the prosecution of the civilians on the detainee
issue, we would be interested, to the extent you can tell us,
what the status is of those investigations and potential
prosecutions.
Mr. McNulty. Thank you, Mr. Chairman. Mr. Chairman, those
cases were assigned to my office for investigation about 18
months ago, as mentioned by Senator Kennedy. Deputy Attorney
General Comey asked me to do it because he believed that my
office had the experience and the aggressiveness to do that
job. It was Deputy Attorney General's Comey's decision to ask
me to do those cases. He had called upon my colleague, Pat
Fitzgerald, to do a case. He had called upon David Kelley in
New York to do a case. He called upon me to take on these
cases.
Now, there were 19 cases that have been referred to my
office for investigation. The first thing I did was put
together a team of the most experienced prosecutors the
Department really has. There are decades of prosecutorial
experience represented in the team I have working on this,
career, longstanding, hard-charging prosecutors. And we took
those referrals in whatever shape and condition they were in,
and they were very thin in the sense of the information
initially given to us, and we began to work.
Now, as we've been proceeding on the course of these
investigations--and they are ongoing investigations--there are
a number of obstacles that we face in trying to come to the
point of bringing criminal charges against individuals who have
in any way been associated with an allegation of some form of
abuse. The obstacles include jurisdiction. We have to deal
with--we're dealing with civilians now, not military personnel.
Military personnel are prosecuted under the Code of Military
Justice. Civilians, who do conduct overseas, have to be
prosecuted under the International Jurisdiction Statute that
was established a few years ago, and that presents certain
challenges in terms of bringing charges.
We have issues of access to witnesses, victims. In some of
our cases our victims can't be found. We have had real problems
in getting access to the potential witnesses in the case. I
sent a prosecutor to Baghdad for interviews, and he was outside
the Green Zone for quite some time and interviewed over 15
people, and we're trying to make progress in a particular case
there. We've had to wait in some cases for the military to
complete its work because our witnesses were tied up with the
military side of the prosecution, and you can't have collateral
prosecutions in certain circumstances. You have to wait until
those witnesses have testified, and then they're available.
So like any complex case, time does pass as you try to work
through the problems, but I assure this Committee that we are
still working hard on those cases, and it may very well be that
in the not-too-distant future charges will be brought. We'll
bring charges when we know we have the evidence necessary to
succeed.
Chairman Specter. Thank you, Mr. McNulty. My time has
lapsed. I will just, without objection, place into the record
the letter which I wrote to you on oversight authority, make it
a part of the record.
I am going to have to excuse myself at this point. Senator
Hatch will be arriving shortly to preside. In the interim I
have asked Senator Sessions if he would preside during my
absence.
Now I yield to our distinguished ranking member, Senator
Leahy.
Senator Leahy. Mr. Chairman, I would put into the record a
letter from the Fraternal Order of Police, signed by Chuck
Canterbury, addressed to you and me in favor of the nomination
of Mr. McNulty.
Chairman Specter. Without objection it will be made a part
of the record.
Senator Leahy. I know when you praised the Department of
Justice--and I join you in the praise of the men and women who
are there--you were referring to the civilian end of our
Government. You were not in any way denigrating the military
end; is that correct?
Mr. McNulty. No, I think that the----
Senator Leahy. I just did not want you to get caught later
on.
Mr. McNulty. I guess I am not familiar with all the ways
you can get caught, but----
Senator Leahy. Trust me, you will learn.
[Laughter.]
Senator Leahy. Let me just follow up a little bit on what
Senator Specter was saying on these cases that have been
referred to. The reason we ask, there were 20 allegations of
detainee abuse. 19 of them went to you. One went to the Eastern
District of North Carolina. They were able to obtain an
indictment. Were you suggesting that your primary--I do not
want to put words in your mouth--but are you suggesting the
primary reason there have not been indictments yet is a
jurisdictional one?
Mr. McNulty. No. I just raised that as one of a number of
factors that has come into play with some of the referrals.
Senator Leahy. The reason I ask that, obviously, in North
Carolina they felt that was not a problem. The military has
been able to prosecute a number of these cases, have they not?
Mr. McNulty. Right. And as I mentioned, we had to let them
go first in some of our allegations.
Senator Leahy. And in among the referrals include one case
in which a detainee was killed in CIA custody only 45 minutes
after interrogations. The CIA's Inspector General found a
possibility of criminality. You have had that case for 18
months. Anything you can tell us about the progress in that
case?
Mr. McNulty. It's an ongoing investigation. What's
interesting about that case is that there were a number of Navy
SEALs charged in the military context, and they were acquitted.
So you see that sometimes in these cases it's very difficult,
as I know you know, because of the nature of the evidence. In
that particular case, those SEALs had custody over that
individual prior to his delivery into the hands of anyone else.
And on the case in North Carolina, that case was further
along in investigation and preparation for being charged. It
was charged almost immediately after the referrals were made
because of the work that had been done on it.
Senator Leahy. Do you think that these others will be
coming to a conclusion sometime in the near future?
Mr. McNulty. I think so. And to be candid with you, Senator
Leahy, there may be declinations in some of the cases.
Senator Leahy. I understand.
Mr. McNulty. And there may be some charges in some of the
cases.
Senator Leahy. After 18 months, there are going to be
declinations. In those cases, that decision should be made too.
Mr. McNulty. That's right, Senator. We'll plow forward with
all aggressiveness.
Senator Leahy. Let me ask you this. There has been a lot in
the press lately about the NSA domestic spying program. When
did you first learn about it?
Mr. McNulty. When the New York Times article came out.
Senator Leahy. You did not know about it before then?
Mr. McNulty. For the past 4 years I have been serving as
the U.S. Attorney in Virginia. I haven't been involved in
Department of Justice wide matters.
Senator Leahy. After you learned about it, what did you do?
Mr. McNulty. I became aware of the program. I am not in a--
read into that program, and so there is nothing more I can do
in terms of action when I'm not a part of or read into the
specific program itself.
Senator Leahy. But if you were Deputy Attorney General you
would be.
Mr. McNulty. Possibly. I mean as Acting Deputy, I think it
was determined, and rightly so, that it's not appropriate in an
area that's so closely held.
Senator Leahy. Did you see the Attorney General's 42-page
white paper he released a couple weeks ago?
Mr. McNulty. I did.
Senator Leahy. Did you agree with everything in that paper?
Mr. McNulty. I read the paper carefully, and I have to say
that I found you arguments, the legal arguments that were being
presented there, to be credible and compelling arguments.
Senator Leahy. Did you find anything you disagree with?
Mr. McNulty. I don't recall right now, Senator, of anything
that I would cite as an area of disagreement. It's a general
legal argument in that paper. And there may be some things that
I found more compelling than others, but as an overall
argument, that's the way I viewed it.
Senator Leahy. I am going to give you a copy. If somebody
could hand a copy of a letter that I and the other Democratic
members of the Judiciary Committee sent to Attorney General
Gonzales last week. We requested the contemporaneous legal
opinions and other documents related to the NSA domestic spying
program. Senator Specter has also raised some of the issues,
and has given you a letter pointing out where such documents
have been made available in investigations by appropriate
committees in the past. If you are confirmed, will you release
to Congress and appropriately cleared staff, and where
appropriate to the public, the requested materials?
Mr. McNulty. I can't make that commitment to you today,
Senator. As I tried to explain to the Chairman, the decisions
that have to be worked through in this request that I'm looking
at--and I hadn't seen this before today, are challenging--and
I'd have to consult with others at the Department of Justice as
to precedence in the past and what can be released.
Senator Leahy. Just one last question if I might, Mr.
Chairman.
Are you aware of instances in which information obtained
through the domestic spying program was used in any manner in a
criminal prosecution in the Eastern District of Virginia or any
other district?
Mr. McNulty. No, I'm not aware of that.
Senator Leahy. Okay. Mr. Chairman.
Senator Sessions [presiding]. Thank you, Senator Leahy.
Mr. McNulty, it is a pleasure to see you. I have admired
your work for a number of years. I think the experience you
have had now as a United States Attorney will be particularly
valuable to you in this position.
Tell us briefly what the role of the Deputy Attorney
General is in the vast Department of Justice. It includes far
more than just line prosecutors in the Department of Justice.
You have quite a good deal more to deal with. I also would note
that--having been on this side of the aisle, on the
congressional side as a top staff person--will that not give
you some appreciation for legitimate demands of Congress on the
Department of Justice to respond promptly and sufficiently to
legitimate inquiries from the Congress?
So I guess I will first ask you that question. Do you feel
that your perspective, in being counsel in the House Judiciary
Committee, would give you insight into legitimate needs of
Congress, and does that make you more or less willing to be
responsive?
Mr. McNulty. I do think that experience is helpful in this
process. I think, if nothing else, when you call me as Deputy
Attorney General, if you confirm me, that I will have an
immediate understanding of the process that you're going
through and the responsibilities that this Committee and other
committees have. I will understand and appreciate the
importance of oversight.
In my view the Department of Justice has to be held
accountable in many different ways. We have to have a strong
Inspector General. We have to have strong oversight by the
Congress, including GAO, and we have whistleblowers that are a
part of that oversight framework. I think all of those elements
of oversight have to function well in order to hold Department
of Justice accountable for its work, and we ought to be ready
to be examined that way.
And so it doesn't mean that some questions won't be
difficult. They have been difficult for decades, and Senator
Specter's letter cites a number of issues where there has been
cooperation and agreement reached on oversight, but all those
examples were preceded by lengthy discussions about how much
should be available, sensitivity of the information,
deliberative process and so forth, but accommodation was
reached in each of those instances, and I think that's the long
tradition of working together on this.
Senator Sessions. I think Congress has a right to demand
certain documents, and I think Congress has an obligation to
recognize that the executive branch has the right to have
internal discussions of matters that remain privileged to the
Department of Justice or the President himself. My
understanding of the attorney-client privilege--and you're
attorneys for the executive branch--is that those documents
have not been produced, that Democrat and Republican attorneys
have repeatedly testified (that have served in the Department
of Justice) that they should not be. And it is ultimately the
documents you prepare--that the Deputy Attorneys General
prepare, the Attorneys General, the Counsel to the President--
those documents are prepared as an attorney, are they not? And
are those documents, your documents, or do they belong to the
Government and to the Chief of the executive branch?
Mr. McNulty. Right.
Senator Sessions. And is that not the person that
ultimately makes a decision on whether or not to release them?
Mr. McNulty. That's right. Some documents that go to the
very core of the deliberative process, that are sort of
quintessential deliberative process work, requirements for
candidacy are important. I appreciate your point about the
policies in previous administrations, because I did my
oversight work on the Judiciary Committee with the previous
administration, and there were a number of documents that the
Committee sought that we did not receive from the Department of
Justice during the administration of President Clinton.
Senator Sessions. You never received those documents from
the Clinton administration.
Mr. McNulty. No. And there were some instances where we had
to accept either significant limitations or ``no,'' and that's
never easy to accept. but we did get that answer on a number of
occasions.
Senator Sessions. It is just a complex issue, but there are
some legitimate Executive concerns there that have been
asserted by every President. Maybe a little later we can talk
about the fact that you will be dealing, if you are confirmed
as Deputy Attorney General, with many more issues than this. It
is a huge supervisory management position that involves the
Bureau of Prisons, the United States Attorneys, the Drug
Enforcement Administration, the FBI, as well as many other
agencies in the Department that is one of the most important in
the country. I am glad that you have had this U.S. Attorney
experience because it shows how the Department of Justice
actually operates at the grass roots level.
I believe Senator Kennedy would be next.
Senator Kennedy. Thank you, Mr. Chairman. Good morning.
Mr. McNulty, I am somewhat surprised to hear you say that
these cases, these detainee cases came to you with a thin
record. The case of Manadel al-Jamadi, who died in CIA custody
at Abu Ghraib, was investigated extensively by the military,
and the General Taguba report was 6,000 pages long. The Jones/
Fay report, which was the other--these are reports from the
Armed Services Committee, of which I am a member. That report
identifies two CIA employees involved. So what is the
difficulty in building the case? Is the CIA cooperating and to
what extent does it cooperate, first of all, and then what is
the difficulty in building the case?
Mr. McNulty. Senator, we're getting cooperation. I don't
mean to be evasive on that one point, but I have certain
classified information issues that I have to work with there,
but we are getting fine cooperation from the agencies that are
involved, that we're working with.
When I made that point, Senator, what I was referring to is
that often when you're a prosecutor you get a presentment of a
case from an agency that is a notebook which lays out quite
specifically the theory of prosecution, the evidence, and puts
you in a position to draft an indictment rather soon after
receiving the information. Referrals is a general term, and I
just don't want anyone to think that referrals means it's the
full presentment of the case ready to go to indictment. The
reports you cited refer literally just to observations or facts
that someone reporter. We have to take those observations or
facts or letters and then build a case from that. We've gotten
great cooperation in trying to do that. The obstacles are more
the kinds of things you run into when you're doing a case on
foreign soil.
Senator Kennedy. Let me move on to the topic of Voting
Rights enforcement, and I am just going to move through this
quickly. Last August the Department granted approval for the
new voter ID requirement in Georgia. This disproportionately
affects African-Americans, Latinos, Native Americans. Voters
were required to pay $35 to obtain a card. Those IDs were
available at less than 60 locations in Georgia, which has 159
counties. The Federal District Court stopped the law because
the IDs functioned as a modern day poll tax. In reaching its
conclusion, the Court wrote that it had great respect for the
Georgia legislature but simply had more respect for the
Constitution. Those are pretty strong words about a law the
Department of Justice said did not violate minority voting
rights. And then the conservative 11th Circuit Court of Appeals
upheld the District Court's decisions.
The news reports show that the career staff and Department
opposed the law because it would violate civil rights--but they
were overruled by political appointees. There is yet a similar
situation with a unanimous staff recommendation against
approving a redistricting plan in Texas. The Texas case is
going to come up to the Supreme Court next month.
I understand you were not supervising voting right cases
when these staff recommendations were made. We are going to
have a separate Civil Rights oversight hearing, as the Chairman
has indicated. But if you are confirmed, you will be in the
chain of command above the Civil Rights Division, so your
position on the matter is important.
Just last week, Georgia passed a new voter photo ID
program, which the Department has the responsibility of
reviewing. The issue is whether the law will actually make it
harder for minorities to exercise their vote.
Do we have your assurance that you will personally notify
the Civil Rights Division leadership and the Voting Section
that you expect a fair review of the new Georgia law, and that
you will not permit politics to trump fair civil rights
enforcement?
Mr. McNulty. You have that assurance. Senator, let me just
add, I feel very strongly that politics can never play a role
in what the Department of Justice does, and the Civil Rights
Division has to be--operate always in a fair and appropriate
way under the rule of law because it's the vision that really
seeks to guard opportunity for every American.
I will point out that the section chief of that section is
a career person, who has been the one signing off on those
Georgia decisions.
Senator Kennedy. But you will follow that?
Mr. McNulty. Absolutely.
Senator Kennedy. Let me just move quickly on to this issue
as well. You are familiar with the role of the Honors Program
in the Department's hiring practices. That has been changed,
especially in the hiring of the Civil Rights Division, where
career attorneys have been totally excluded from reviewing
candidates. It is now done only by political appointees. That
is a dramatic change from the past. The Honors Program was
originally designed to get rid of political considerations in
new hiring. So will you agree that political considerations
should not have a role in who is named in career positions in
the Department, and if you are confirmed, will you review the
Honors Program?
Mr. McNulty. I will.
Senator Kennedy. And work with us to guarantee that the
politics is not the controlling factor?
Mr. McNulty. Absolutely, Senator. I looked into this
briefly because I knew this was a concern. And we may have to
check the facts that you have and I have and make sure we're on
the same page.
Senator Kennedy. Fine.
Mr. McNulty. But I understand that a career employee and a
political employee are both involved in every hiring decision
that's made in the Honors Program. So that's my understanding
of the current policy.
Senator Kennedy. If you look it over, we can talk about it
later.
My time has expired. I will just take a second here. Just
this morning we learned of a terrible tragedy in New Bedford,
Massachusetts. Three people are now in the hospital after
suffering brutal attacks. The suspect allegedly walked into a
bar, asking if it was a gay bar. And then the suspect started
attacking customers, swinging a hatchet, and then pulled out a
gun and started shooting at everyone. So this really was a
crime of hate, and such acts of violence represent, I believe,
domestic terrorism.
Senator Smith and I, and Senator Specter have been
enormously interested in hate crimes. Will you work with us? We
have a current hate crimes bill. We have passed others in the
Senate. We have not been able to get it into law. But will you
work with us in terms of hate crimes legislation generally? I
cannot ask you now for a specific position on it, but I would
like to ask for your assurance that you at least will work with
us in terms of that subject matter. We may not come to the same
decision, but I would like assurance at least you will work
with us on this issue.
Mr. McNulty. Right. I will work with you. I remember the
issue--I haven't thought about it recently--but I remember the
issue when I worked for the House Judiciary Committee, and I
will be very prepared to work with you on your efforts to try
to address the question.
Senator Kennedy. Thank you.
Thank you, Mr. Chairman. My time is up.
Senator DeWine [presiding]. Mr. McNulty, good to see you.
Mr. McNulty. Good to see you, Senator, thank you.
Senator DeWine. You have a distinguished record. You and I
first met each other in I think about 1983, right after I came
to the House of Representatives. You were with the Legal
Services Corporation. Shortly after that you went I think with
Bill McCollum on the Crimes Subcommittee of the House. You and
I worked on the Crime Bill. You went off to the Justice
Department for a while, had a career there. And then you came
back, and you and I worked together when you were again Chief
Counsel on the House Crimes Subcommittee, and then your
distinguished career in Virginia, some very famous cases. Now
back at Justice Department, U.S. Attorney's Office. It was a
very distinguished career.
So anyway, it is good to see you back.
Let me just ask you, Paul, a couple questions, one on
asylum cases. As you probably know, in the past year several
Federal Circuit Courts have openly criticized the Department's
handling of immigration cases involving those who seek asylum
in the United States. Some have criticized the decisions of
immigration judges. Others have commented on the quality of
appellate review conducted by the Bureau of Immigration Appeals
in these cases. The issue, however, seems to stem from a
decision made by DOJ in 2002 to streamline the appellate review
process in immigration cases. Without question, this
streamlining has made the difficult process of deciding
hundreds of thousands of asylum claims each year more
efficient. But some of us fear that it has also led to a number
of meritorious asylum claims really slipping through the
cracks.
What is your thinking in this area? Do the current DOJ
regulations strike, in your opinion, the proper balance between
efficiency and individual justice, or do we need to reexamine
these regulations to be certain that meritorious asylum claims
do not slip through the cracks?
Mr. McNulty. Well, I am familiar with the changes in part
because the effort to expedite the immigration cases has also
resulted in really an avalanche of cases in the circuit courts
for review. And my office in the Eastern District of Virginia,
like every U.S. Attorney's office in the country and every
litigating unit or component of the Department of Justice, is
now participating and working on briefs on those cases. So we
all understand the volume.
Just a week ago, Senator, Attorney General Gonzales asked
my office and the Associate Attorney General's office to
conduct a thorough review of the way the immigration courts are
operating, the quality of the work that is being done, the
efficiency and effectiveness, and whether or not we have struck
that right balance.
So we are currently going through a very large effort to
review what is being done by immigration judges in these cases,
these petitions. I would like to get the results of that, which
should be rather soon because the Attorney General told us to
get it done quickly, and talk to you about what we find at that
point.
Senator DeWine. Well, I would hope maybe you could come in
with me or have someone come in and brief me and my staff on
that because I have a concern about this. When you have the
circuit court judges openly criticizing the Department's
handling, I think that is a problem. We are picking it up,
frankly, through my office and some of the horror stories that
we are hearing, and I think it is a real problem.
Mr. McNulty. I understand, and the concern----
Senator DeWine. And the time line for that is what, do you
think?
Mr. McNulty. It is not a lengthy review. It is one that the
Attorney General wants back quickly. So we have been at it now
for about 3 weeks and I can't give you a specific date, but we
are talking about just literally weeks of more work to do and
not a long period of time.
Senator DeWine. Let me ask you one more question. As United
States Attorney for the Eastern District of Virginia, you, of
course, have been involved in some of the most important anti-
terrorism cases in the country.
Do you want to take a moment to give us some idea of what
is working in this area and what, from your perspective, maybe
is not working? Again, have we struck the right balance between
fighting terrorism and protecting civil liberties, and are the
tools that Congress has given our investigators and our
prosecutors in the USA PATRIOT Act, in your opinion, actually
working? From a practical standpoint, what would be the effect
on anti-terrorism investigations if we do not reauthorize the
PATRIOT Act?
Mr. McNulty. I think there would be serious problems if the
PATRIOT Act was not reauthorized. The provisions that sunset
provide very significant tools. We all talked about the wall,
and the concern we have as prosecutors is the chilling effect
that a lack of reauthorization would have on the sharing of
information.
Some sharing has improved that may not be connected
necessarily to the PATRIOT Act directly, but there is an
important part of the sharing that is directly tied to the
PATRIOT Act. And if it is not reauthorized, we will go back to
that stovepiping that keeps prosecutors from knowing actually
what is going on and being able to pursue important cases.
Also, Senator, as far as other tools in the Act, they
provide the kind of thing that is needed in the right moments
when you are trying to use what is available to make a case.
They are not necessarily used everyday, but they provide a
solution to an important problem, whether it is delaying a
notification in a search or whether it is seeking a certain set
of records that wouldn't be available because of the national
security concern with a grand jury subpoena.
We made a lot of progress in 4 years. In my office, in
prosecuting these cases, I think we have learned how to
overcome major obstacles that historically we just hadn't
confronted in prosecuting cases where evidence was all over the
world. And I think that we are much stronger today as a
Department in prosecuting international terrorism cases than we
were before 9/11. We will continue to look at what we can do
legislatively and practically to improve, but I think my
assessment to you, Senator, is that we have made great progress
in overcoming obstacles.
Senator DeWine. Thank you very much.
Senator Durbin.
Senator Durbin. Thank you very much, Mr. McNulty, and thank
you for joining me in my office yesterday. It is good to see
your family here.
Mr. McNulty. Thank you.
Senator Durbin. Mr. Chairman, I would say that if people on
the Hill, including members of this Committee, understood the
importance of the position that you seek, this room would be
filled. It should be, because I think what we have seen with
Mr. Comey, whom we both hold in high regard, is that during the
course of his service in this same position, he was called on
to make some extraordinarily important and difficult decisions.
When you and I met yesterday, we talked about this
compelling Newsweek article that attempts to describe Mr.
Comey's experience at the Department of Justice in this
position, and particularly the fact that he was, because of
Attorney General Ashcroft's illness, drawn into an important
responsibility of deciding whether to go forward with the
domestic spying program which is going to be the subject of
this Committee's hearing next week. The article indicates that
he ran into some resistance for his position on this issue from
Mr. David Addington, who is the chief of staff to Vice
President Cheney.
The reason I raise this is because you and I talked about
it and I want to make sure it is laid out on the record here.
There may come a moment, if you are approved by the Senate,
where you are put in the same predicament, where you would be
faced with making a critical decision relative to our rights
and freedoms in America and face political pressure within the
administration, as apparently Mr. Comey did from the office of
the Vice President.
My question to you in public session, as it was in my
office yesterday, is whether you are prepared to resign the
position if you found it to conflict with what you considered
to be ethical or constitutional conduct.
Mr. McNulty. Thank you, Senator, and I fully appreciate the
significance of your question, and my answer to you today is
the same as it was yesterday. I would never let a job come in
the way of my integrity. If I felt that that was a necessary
thing to do, I would certainly do it because, first and
foremost, I have to do the right thing in this job everyday.
I believe I have the standing as a result of more than two
decades in this town, I have the confidence, I have the ability
to assert myself that I might be persuasive to anyone I might
come in contact with where I feel strongly about a position,
and that I would prevail. But if that situation should arise as
you framed it, then I would be prepared certainly to walk away
from a job if it came to a question of integrity versus
employment.
Senator Durbin. And although I didn't raise it yesterday, I
want to set out in the record, is there anything in your past
service with the House Majority Leader relative to his legal
problems concerning the K Street Project or Mr. Abramoff or
anything--is there any aspect of this that you were involved in
as a member of the staff?
Mr. McNulty. Well, I didn't work for that Majority Leader.
I worked for Congressman Dick Armey, the former Majority
Leader.
Senator Durbin. I see.
Mr. McNulty. I served as the general counsel and I am
unaware of any issue that has ever been identified that has
been associated with my service to him in that way.
Senator Durbin. So there is nothing in current
investigation that relates to your service at all in the House?
Mr. McNulty. No, sir. I am unaware of anything like that.
Senator Durbin. Thank you.
Let me ask you specifically about an issue raised earlier.
Senator Leahy referred to the letter which I received relative
to the referrals by Mr. Comey for detainee abuse cases to the
office of the U.S. Attorney in the Eastern District of
Virginia.
I asked you yesterday if you agreed with the President's
statement that no American could legally engage in torture,
cruel, inhumane or degrading treatment. Do you agree with that
statement?
Mr. McNulty. Yes. As I understand it, that is the law of
the land.
Senator Durbin. And so if anyone in the administration
suggested that the President had the authority to authorize
torture, would you come to the conclusion he does not?
Mr. McNulty. Right. As I understand it, the McCain
amendment has addressed this very subject we are talking about
and the administration has expressed its full support for the
McCain amendment.
Senator Durbin. And so that would be your position as well?
Mr. McNulty. Correct.
Senator Durbin. All right. So, if confirmed, you would not
be advising the administration that they have the authority to
ignore what is the clear statement in the McCain law?
Mr. McNulty. No, Senator, I can't anticipate that--I
wouldn't anticipate that situation.
Senator Durbin. I see my time is up, so I will defer to my
colleague, Senator Schumer.
Senator DeWine. Senator Schumer.
Senator Schumer. If Senator Durbin, with your permission,
Mr. Chairman, wants to finish his line of questioning, I think
I would end up going beyond the 5 minutes. It is better to have
him finish his and then I finish mine, if that is okay with
you, Mr. Chairman.
Senator DeWine. Senator Durbin.
Senator Durbin. Okay, thank you. I thank you my colleague
from New York.
So as you described it to me yesterday, the cases that have
been referred to the Eastern District of Virginia U.S.
Attorney's office--some 17 pending cases, if I am not mistaken?
Mr. McNulty. That is right, minus the two we have declined,
so we are down to 17.
Senator Durbin. Seventeen pending cases involve, as you
described it, some cases that came in with a thin file, limited
information, often involving witnesses and victims who were
overseas, some of which are now being considered in other
courts, such as military courts. And you said to me that was
the reason why there hasn't been more activity. Now, don't let
me put words in your mouth.
Mr. McNulty. Well, I wasn't saying there hasn't been more
activity. There has been a lot of activity. We have worked very
hard on this. What I was trying to describe to you is something
that I am sure in the vast majority of prosecutions people
confront, which are the reasons why you can't move from a
referral on Monday to an indictment on Thursday. You have to
have the work done to succeed in the case.
All of the witnesses--let me qualify that--many of the
witnesses, if not most of the witnesses, are overseas, and the
victims, as well, and so forth. Those are just two of several
factors that make the investigations difficult, not impossible,
but just difficult.
Senator Durbin. I think that is a reasonable explanation,
and when I was asked by the press yesterday, that is exactly
what I said. I hope there is some timely determination as to
whether they are going forward for prosecution, whatever might
be the fate of that office and the next office-holder.
Mr. McNulty. Yes.
Senator Durbin. One last question. You have been involved
in some terrorism cases. Have any of the defendants in these
cases been subject to this NSA surveillance, this domestic
spying program which is now going to be considered by this
Committee next week?
Mr. McNulty. I don't know the answer to that question. At
least two of the defendants in cases that my office has
prosecuted have filed motions to that effect, but not based
upon any information available to them.
Senator Durbin. So you have no knowledge that any defendant
has been subject to this surveillance?
Mr. McNulty. I have no knowledge of that.
Chairman Specter. Okay. Thank you very much, Mr. McNulty.
Senator DeWine. Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman, and I want to
welcome Paul McNulty and his family, his wife, his daughters.
My condolences on your loss last week.
Mr. McNulty. Thank you.
Senator Schumer. Mr. Chairman, it is no secret that Paul
McNulty and I go way back. One of my proudest moments as a
Congressman--I served 18 years in the House--was putting
together the crime bill, which had a little motto: Tough on
Punishment, Smart on Prevention. It got a majority of the Black
Caucus and close to a majority of the Republican members of the
House to vote for it as it went through.
I would say the staff member I worked most closely on with
that legislation was Paul McNulty, who I believe was probably
minority counsel at that point?
Mr. McNulty. At different times, yes, sir.
Senator Schumer. Yes, and I can tell my colleagues that
Paul is not only extremely bright and hard-working and
diligent, but a man of integrity and his word is good, and I
appreciate that.
So I guess I would say here that it is no secret that most
of us on this side of the aisle have had serious differences
with the Justice Department on a whole range of issues over the
last 4 years. I am glad they chose you, as opposed to somebody
else.
Having said that, another one of your qualities which I
respect is loyalty, and I worry that in this Justice Department
two very fine qualities of integrity and loyalty are going to
cause you some sleepless nights. So my questions are all in
that sort of general vein, and I think it is my obligation to
bring them out, as much respect as I have for you.
I think that the Justice Department in the last 4 years has
become more political than I have seen it in all the years I
have been in Washington. Some of the cases at the Department
proceed with complete professionalism, but others seem to be
saturated with politics. The Justice Department should not be a
den of ideology.
My colleague, Dick Durbin, mentioned Jim Comey, and he was,
like you, a consummate professional, forthright, true to the
law, guided by what he thought was right. And I am sure you
have read some of the newspaper and magazine stories. There has
been at least speculation--Comey would be too much of a
professional to comment on this--that he left because loyalty
demanded too much. And there is talk that other people left the
same way--Mr. Goldsmith, who was head of the Office of Legal
Counsel, and some others. Again, I make it clear neither of
them has said anything to that effect. These were articles I
saw most recently, one in Newsweek.
The job, in my judgment, of Attorney General or Deputy
Attorney General is different than that of just about any other
Cabinet position. Just about every other one, you are supposed
to follow the President, period. But the Justice Department has
an extra halo, if you will, which is it is the law enforcement
agency of the country, and in a nation of laws, by definition,
you don't always just follow.
So one area I have concern in is the investigation of Jack
Abramoff. This is a political issue, by definition. Names of
politicians have been involved, and thus far I think the Public
Integrity Section has pursued the case appropriately. But I
worry when the investigation turns to Government officials,
elected officials, and particularly, if it should occur, moves
in the direction of some people who have a whole lot of power
and a whole lot of connections with this administration.
That is why I believe that given the ties between Mr.
Abramoff and senior Government officials, this is a place where
a special counsel is justified and necessary. We don't have an
independent counsel law anymore. That was sort of knocked out,
I think, in a bipartisan way. But a special counsel gives some
distance, and Patrick Fitzgerald is an indication of that.
Whether people like or don't like what he has done, no one has
debated that he has free rein, and that is why whatever he does
I am going to be happy with. I have faith in his integrity. I
have faith in the structure that was set up.
So here we have Abramoff with ties to the Republican
leadership in Congress, certain ties to the White House itself.
Who knows how deep? We are trying to figure that out.
Second, the rules, DOJ's own regulations. The Attorney
General must appoint a special counsel when a criminal
investigation would present a conflict of interest and it would
serve the public interest to appoint a special prosecutor. And
now you have the added complication just in the last week or so
that the career prosecutor in charge of the investigation, Noel
Hillman, has been nominated to be a judge on the Third Circuit.
So while this cauldron is bubbling, there is going to be a
new appointment there, and even if that appointment is made
totally, totally on the merits, there is going to be an
appearance that you can't avoid, and couldn't avoid in any
administration. This is not aspersions on this; this is just
the facts of the matter.
Senator DeWine. Senator Schumer, in the spirit of
bipartisanship to show you that bipartisanship reigns in this
Committee, I am going to turn the gavel over to you at this
point.
Senator Schumer. Well, thank you, thank you.
Senator DeWine. I have another engagement that I am late
for.
Senator Schumer. No problem. I will just ask my questions
and then conclude the hearing.
Senator DeWine. Well, you are doing so well here that I
will just let you continue.
Senator Schumer. Thank you. Thank you, Mr. Chairman.
Senator DeWine. If I could just say again, Paul, we are
delighted at the President's nomination.
Mr. McNulty. Thank you for your support.
Senator DeWine. We look forward to working with you.
Mr. McNulty. I certainly look forward to that.
Senator DeWine. We are glad to see your family here today,
too.
Mr. McNulty. Thank you.
Senator DeWine. Thank you.
Senator Schumer. Thanks, Mr. Chairman.
Senator DeWine. Thank you.
Senator Schumer [presiding]. I would just say one other
thing that sort of again leads to some concerns. Frederick
Black was the acting U.S. Attorney in Guam and the Marianas and
was removed while he was investigating Mr. Abramoff, again,
some allege because he was investigating Mr. Abramoff, and even
that Mr. Abramoff had a hand in removing him.
So I guess my question to you is, given all these
circumstances and the lack of public confidence that exists
today, would you support the appointment of a special--oh, one
other thing I should say is 35 of us in the Senate, all
Democrats, are sending a letter asking that a special counsel
be appointed today.
So I would ask you what is your view of a special counsel
in this case. Is it needed? What are the criteria you will use?
I had asked the same question of Mr. Comey when he was sitting
in your chair and he basically--well, as you saw then in the
Plame case, did appoint a special counsel. So just give me some
of your thoughts here.
Mr. McNulty. Well, first, let me say, Senator, how much I
appreciate your kindness to me. In this town, which can be a
very rough place, the fact that you would remember the time we
did spend together working and credit that toward me is
something that I will always appreciate. I think it speaks a
lot of who you are as a person and I appreciate it.
Senator Schumer. Well, more to who you are. You are
somebody I greatly respect.
Mr. McNulty. Well, thank you.
Second, when you talk about loyalty and integrity, loyalty
is a good thing. I have benefitted from loyalty in my career
and I have benefitted from loyalty in my life. I have friends
here today who are loyal to me and that is nice, but loyalty
and integrity aren't equals. Integrity trumps loyalty. Values
have some hierarchical structure to them and when it comes to
doing the right thing, you have to be willing to do that even
to the people--if you are an enforcement person, even to people
that you might have some knowledge of or relationship with.
But on the question of the special counsel generally, I
think it is an important tool in very limited ways. I think it
does create that sense of public confidence. Public confidence
is huge when it comes to the Department having the kind of
standing that I described in my opening statement, and that is
why from time to time it makes some sense.
I do believe that the prosecutors working on this
particular investigation are really thoroughgoing
professionals, all career, and it has a lot of resources as far
as the work that is being done. I will commit to you that I
will certainly take your recommendation seriously and look at
the matter and, if I am confirmed, give it every possible
consideration for what is the appropriate thing to do. And I
will consult with you as I do that so you know where I am
coming from.
I like to see the career people do their jobs without any
interference, and I believe they put in the time and the effort
and that they are in the place to make good judgments. And so
with that only bias that I have toward the way in which the
career people have demonstrated a record of integrity, I will
give your proposal consideration.
Senator Schumer. Well, I appreciate that very much, and you
did say, which I think is very important, that this
investigation will get whatever resources are necessary. They
won't be hamstrung for a lack of----
Mr. McNulty. No. It already has a lot of resources and
anything they need to----
Senator Schumer. Up to now, I don't have any complaints
from my knowledge, limited as it should be, because it is--
well, it is somewhat public because there have been articles
about it, but it is private.
The problem I worry about is not the career prosecutors in
the Public Integrity Section, but it is standard procedure in
the Public Integrity Section, should the investigation turn to
indict some high-level political figure, or even make that
person a target--move the grand jury in a different direction
is a little different--that often it goes beyond the Public
Integrity Section and beyond the career prosecutors. That is my
worry.
Now, how do we address that type of--and that is standard
procedure in the Justice Department and I am not here at the
moment to quarrel with that. But in this sensitive situation,
how do you deal with that? You will admit there will be
decisions, not every decision, but some decisions made at a
higher level than the Public Integrity Section, should this
investigation find serious wrongdoing among certain people.
Isn't that fair to say?
Mr. McNulty. Sure, absolutely. I have had the experience of
being around attorneys general and deputy attorneys general
over the course of my career and I have never, ever heard a
conversation about political considerations when it comes to
charging. There is a culture at the Department of Justice that
is blind to that and just looks at the facts and the law and
tries to move forward.
And there is a structure at the Department of Justice that
is probably, I think we would both agree, a good thing, which
is that there is political leadership that is accountable, that
changes with elections. And they do have, by the very design of
our Founders, a responsibility for administering the law.
In the current structure of special counsel, it is not like
an independent counsel was under the statute where you have
someone who actually has this charging authority that exists
outside of the Department. Jim Comey faced the question with
appointing Pat Fitzgerald. Pat Fitzgerald reported to him. He
was a political appointee.
Senator Schumer. Right.
Mr. McNulty. And so you have to work through some of those
questions that even with a special counsel, ultimately if one
is picked, that person would report to me, unless I am recused,
then report to somebody else.
Senator Schumer. So if whoever is the new prosecutor brings
something to you, you would not try to overrule it on any kind
of political grounds, no matter----
Mr. McNulty. Absolutely not.
Senator Schumer. Great. Second, I guess what you are saying
here is you will look at the issue of a special counsel
seriously. You don't foreclose ruling it out right now at all?
Mr. McNulty. No, Senator, I don't.
Senator Schumer. Thank you. The next questions are related
not to the special counsel, but since 2001 I have talked and my
staff has talked to a good number of career people in the
Justice Department who are very frustrated with what they would
call the politicization of some parts of the Justice
Department--I am not talking about shifts in policy here.
Obviously, that is the President's prerogative. He won the
election and my party lost--but rather where political
appointees routinely overrule experience and expertise of
dedicated staff. If they believe it is on all fours, not even
equivocal, that the law requires one thing, they are overruled
in a different direction. They are removed from current posts
and given less desirable assignments.
The hiring process is taken over by political appointees
for appointments further down the chain without input from
career managers, where a highly experienced, talented and
rather long-term workforce is purged. And all too often, who
pops up in their place is someone with less experience, but far
more conservative ideological credentials or political
connections.
An example: Last June, political appointees overruled
career attorneys on the tobacco litigation team and ordered
them to ask one of their witnesses to downplay testimony that
was damaging to the tobacco industry, and then ordered them to
dramatically reduce their request for civil penalties by
billions of dollars. The veteran career attorney who had led
the case suddenly and inexplicably withdraw from the litigation
amid speculation she was driven out.
In August, Lawrence Greenfield, the head of the Bureau of
Justice Statistics, was asked to resign and was later demoted
after he objected to a White House order that he delete
references to racial disparities in news releases prepared to
announce a study on racial profiling.
The one that I find most disturbing is the pattern in the
Civil Rights Division, where some of the most egregious and
appalling examples have occurred. The front page of the
Washington Post said that political appointees have overruled
experienced career attorney recommendations to deny pre-
clearance to voting changes in Georgia and Texas; that the
attorneys determined after thorough, non-political legal
analysis that it would have a discriminatory effect on minority
voters.
If those political appointees or people in the White House
thought that the Voting Rights Act, as it is, goes too far,
they had every right to try and change the law, come to us and
change the law, but to veto cases or to change the way cases
are being done in compliance with the law. Experienced
attorneys are departing this division at an alarming and
unprecedented rate, and many who choose to remain get assigned
to less desirable posts. They are ordered to work on
deportation cases rather than civil rights cases.
So again, with complete respect for you and who you are,
but realizing it is a tough world, how can you assure us that
you will deal with these kinds of--if they are as I described,
and I don't know if you have looked into any of them in your
acting capacity--how you will deal with them. I don't think you
would deny that at least out there in the buzz, there is a view
that this Justice Department in certain areas, particularly
civil rights, has behaved more politically.
Mr. McNulty. I am aware, Senator, of that buzz, and in the
3 months that I have been the Acting Deputy I have become more
familiar with some of the issues that you raise here.
Perhaps the best answer I could give you is as a general
matter I was enjoying my life as a U.S. Attorney and really
finding that to be the best job I have ever had. And when I was
given the opportunity to move to the Department of Justice to
serve as the Deputy Attorney General, the thing that primarily
motivated me to take it was not fame and fortune by any means,
but rather the fact that I have a great regard for the
Department of Justice as an institution.
And I think we are talking about over 100,000 people here,
and the need to manage the place well is critical, and to see
that people are treated well. And so if I am confirmed, I
expect as the Deputy Attorney General to hold everybody
accountable for their conduct in relation to how we deal with
career people and how we respect the work that is being done by
everybody in the Department, to avoid the appearance of
politics coming into what we do, to follow up on things that I
read about or hear about and to get to the bottom of it.
That is about the best I can say to you with regard to this
sort of list of things that you are talking about, that if they
come up under my watch, I will address them. And if somebody
calls me and says I heard about this, you can have the
confidence that I will look into it and get back to you.
Senator Schumer. One thing I would ask you to address, if
you are confirmed, is would you be willing to look into what is
going on in the Civil Rights Division and report back in a way
you feel appropriate to me, to the Committee, to the Chairman?
I think that does need some looking into.
Mr. McNulty. Well, I understand. I have talked to Wan Kim,
the new Assistant Attorney General. I believe he is a very good
man who has a real commitment to making the Civil Rights
Division everything it can be and it should be. The work is
very important. As you say, sometimes there are policy issues
that come up that have to be resolved.
On this question of voting rights, I am aware that the
section chief is the person under the guidelines who is
responsible for the pre-clearance authority. And so when you
see pre-clearance, you know that a career person has made that
decision. I think that sometimes gets lost in the process, but
nevertheless the concern you express is something that I will
take seriously. And I will look at the Civil Rights Division
and make sure that it is functioning in a way that has
everyone's confidence that it is doing its job.
Senator Schumer. What I would like to do is send you just a
letter or something asking that you look into certain things in
there. Would you be willing to just get back to me once you are
confirmed?
Mr. McNulty. That sounds fine.
Senator Schumer. I just want to let you know, Paul, that I
am proud of who you have been and you have been a wonderful
public servant. I have real concerns, as you know, but I have
faith in you. I had faith in Jim Comey and I thought he did the
right job at a difficult. I am prepared to support your
nomination.
Mr. McNulty. Thank you very much.
Senator Schumer. We are going to leave the record open for
written questions for 1 week and the record will close on
February 9 at 5 p.m.
The hearing comes to a close, and again to the McNulty
family--my brother-in-law is a McNulty, as well, but we are to
related. That has nothing to do with this today.
[Laughter.]
Senator Schumer. The hearing is adjourned.
[Whereupon, at 11:34 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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