Sen. Whitehouse Rips "Slow Self-Destruction" of Senate Judiciary Committee

[0:00] Thanks very much, Mr. Chairman. I won't take long, but I do love being on this committee, [0:10] and I fear that what I'm seeing is kind of a slow-mo self-destruction of the committee [0:19] in various respects. Like that? The slow-mo self-destruction of the committee began, I would [0:36] say, with the destruction of our circuit court blue slips. I know that created an immediate [0:45] political advantage for the Republican side in order to be able to shove circuit court nominees [0:52] into Democrat seats, but then the winds changed, and the next thing you know, Republicans are looking [1:01] around for a blue slip and finding that, oh no, we killed it. The net result, as the politics balance [1:12] out, is that we transferred our power on this committee, individual senators' power on this [1:20] committee, to the executive branch, and we've never gotten it back. We just gave it away. [1:26] We're having a reprise of that right now with respect to United States attorneys. This Department [1:34] of Justice has figured out a device for circumventing this committee entirely. It's not a question of us [1:44] not having a blue slip. They have figured out a way to put U.S. attorneys in place without the individual's name [1:54] ever coming before this committee. The trick is you appoint somebody an interim, and then when the time [2:03] gets ready to run out, you can the first assistant, and you put your interim into the first assistant position, [2:13] and then you designate that individual as something called a special attorney, and that's it. According to the [2:22] Department of Justice, that individual now has all the powers of the United States attorney, and this [2:28] committee has never even had a role in looking at that. Now, if you all are happy with that, if you want [2:37] to have the new rule for U.S. attorneys be that you get to put them in without even touching base with this [2:43] committee, without even having a conversation with the senator from the home state, if that's what you [2:50] want this to be, keep it up. But when the time comes, when the winds shift, and suddenly it's your U.S. [2:58] attorneys who are being selected by an administration without even consultation with you, without any [3:06] committee process or review whatsoever, then don't come complaining to me. It was not met with much [3:18] sympathy by me when I had to hear complaints about the circuit court blue slip disappearing when your [3:30] side had killed the circuit court blue slip. If you kill Judiciary Committee process for U.S. attorneys, [3:39] please don't think that that's just a one-way ticket. We will permanently disable this committee's ability [3:49] to have a say in U.S. attorneys if we don't do something about what this Department of Justice is doing [3:56] right now. And the last self-destruction that I see taking place in this committee is that we don't [4:06] require witnesses to answer questions. Instead, we allow them to assert privileges that are preposterous [4:19] and we just let it pass. Well, it's fine when you have the gavel and it's a witness you want to be [4:28] allowed to duck questions and assert fake privileges, but that wind shifts too. And the time will come [4:36] when you will want your questions answered and you will want to have the chair direct the witness to [4:43] answer the question unless there's a real privilege. As Chairman Grassley has said repeatedly, executive [4:53] privilege is limited. It's limited to conversations directly with and around the president. It must be [5:03] actually asserted by the president. And even then, if there's a good enough reason to overcome the [5:10] privilege, it can be overcome. Instead, we allow witnesses just to say, oh, executive privilege with [5:22] none of those conditions having been met. And now they don't have to answer questions. Worse, executive [5:29] privilege has been expanded to include FOIA exemptions and limitations on intra-party discovery [5:37] in a lawsuit. And now those things are grafted into executive privilege. And again, as Chairman Grassley [5:46] has noted, those aren't privileges that limit Congress's constitutional oversight power. They may limit [5:58] what one litigant can get from another. They may limit what an individual with a FOIA request [6:06] can get under the FOIA statute. But this is the United States Congress. This is the Senate Judiciary [6:12] Committee. And if we're going to allow witnesses to make up fake privilege and then act as if that's [6:20] okay, again, look out for when that turns. And we just saw this the other day with a truly preposterous [6:29] assertion of privilege by a lawyer on his way to disbarment, just to add a little bit of extra flavor [6:37] to it. But I would like to see this committee strong. I know a strong committee is sometimes awkward [6:44] politically. But when we give up the circuit court blue slip, if we continue to give up any role in U.S. [6:53] attorney nominations, and if we let witnesses come in and just make up privileges and not have to answer [6:59] questions, that is slow-mo self-destruction of this committee. And we all pay a price. So thank you for [7:06] letting me say that, Mr. Chairman, as I've mentioned on a number of these issues, you've actually been [7:11] quite strong. And I look forward to working with you to reestablish the prerogatives of United States [7:18] senators on this committee.