Executive Session

Floor Speech

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Mr. SESSIONS. Mr. President, I support the President's nomination of Robert Mueller to be the Director of the FBI for an additional 2-year term.

I believe Mr. Mueller is a fine Director of the FBI. I had the opportunity to observe him within the Department of Justice for a number of years. I served as U.S. attorney in Alabama for 12 years, and during that time he was the U.S. attorney. He was an attorney in the Department of Justice, and he was one of the top administrators of the Department of Justice. Director Mueller was a decorated Marine officer and served in Vietnam. I truly believe he represents the highest and best ideals of American patriotism and capability.

He had the opportunity over the years to go into private practice and make a lot of money. He has stayed and committed himself to public service according to the highest ideals, I believe, of public service.

He had a 10-year term. Normally, we would expect that it would be just that, a 10-year term. The Director has given that long a period of time because there was a concern that when people stay too long, problems can arise in the system because it becomes personality driven rather than meritocracy and people can become entrenched in that sort of thing. So we have a 10-year term. I am not sure that is a perfect period of time, but that was the one that was decided, so it should not be lightly changed to a longer period of time without some serious thought.

Are we violating the very purposes of the act that limited his term?

I am pleased that, instead of moving forward with the proposal as originally drafted, we are now moving forward with the proposal Senator Coburn offered, his substitute amendment. I think that is the better way to extend the term. I would like to talk about that a little bit.

The original proposal would have just amended the statute providing that the Director serve for only one 10-year term and created an exception to allow Director Mueller to serve an additional 2 years. I am concerned about the potential for creating a dangerous precedent that the 10-year term limit applies depending on who is the Director, his or her political popularity, and the political dynamics of the White House and the Congress. That was not our goal.

I do understand the President's desire to retain Director Mueller during this time in our Nation's history and to do so expeditiously and not to have some sort of interim uncertainty. Actually, I congratulate the President on his judgment in concluding that Director Mueller can do a good job and has done a good job. While it is true that the original legislative proposal would have accomplished those things, I believe it was the easy way out and would not only have been a temptation to future generations to replicate it, but, more important, it might have run afoul of the Constitution.

At the hearing before the Judiciary Committee, of which I am a member, concerns were raised about the original proposal. Those were raised by University of Virginia James Madison Distinguished Professor of Law John Harrison.

As we all recall, James Madison was considered to be the Founder of our Constitution, the most active member of our Constitutional Convention, the one whose notes told us what went on, the one who went to the convention with an outline, a framework for the structure of government that eventually became our Constitution.

Mr. Harrison testified that it was an unconstitutional ``attempt by Congress to exercise directly through legislation the appointments power.''

Article II, section 2, clause 2 of the Constitution, the appointments clause--it is in the Constitution--states that the President ``shall nominate and by and with the Advice and Consent of the Senate, shall appoint Ambassadors and other public Ministers and Consuls, Judges of the Supreme Court and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.''

In the case of Buckley v. Valeo, the Supreme Court held that ``any appointee exercising significant authority pursuant to the laws of the United States is an `Officer of the United States' and must, therefore, be appointed in the manner prescribed by [section] 2, [clause] 2, of that Article.''

In addition, the Supreme Court has long recognized that ``the power of removal [is] incident to the power of appointment.'' Therefore, Congress may not involve itself in the removal process insofar as it interferes with the ability of the President to exercise Executive power and to perform his constitutional duty.

Professor Harrison explained that because ``an appointment is a legal act that causes someone to hold an office that otherwise would be vacant or held by someone else,'' a ``statutory extension of the term of an incumbent causes the current incumbent to hold an office that otherwise would have been vacant upon the expiration of the incumbent's term. It is thus a statutory appointment.''

Professor Harrison further testified that the original proposal would have also run afoul of the fundamental constitutional principle that underlies the appointments clause. This is a fundamental principle because the President has the ultimate veto--the power to decide whether to appoint someone at all--and he has the absolute responsibility for their nomination, good or bad. He nominates them.

Indeed, the rationale for the structure of the appointments clause dates back to Federalist No. 76 in which Alexander Hamilton explained:

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will on this account feel himself under stronger obligation and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them.

That is pretty effective language.

Dilution of the President's sole responsibility for nomination and appointment is inconsistent with constitutional principles.

Given that constitutional concerns were raised by these scholars, it was at least arguable that had we proceeded with the original proposal, a judge could find Director Mueller's appointment and term of service to be unconstitutional if it were to be challenged by someone in court, and that was possible.

Particularly concerning was the suggestion that in a properly presented case involving an individual subject to a purported exercise of government power by the Director who was appointed pursuant to a statute such as the original proposal, a court could find that exercise of power to be invalid, either prospectively or retrospectively. In the past, courts have enforced the appointments clause by holding invalid the actions of purported officers whose appointments did not comport with the Constitution.

When questioned about this possibility at the hearing, both Director Mueller and former Deputy Attorney General of the United States James Comey agreed that if serious constitutional concerns could be raised, they would favor proceeding with the reappointment process in a different way, one that would pass constitutional muster and not raise questions.

Professor Harrison advises an alternative constitutional method, which is the proposal Congress passed and the President signed into law yesterday. He gave us a suggested way to proceed that would be constitutional, and we drafted it, agreed with it, and passed it.

I think it speaks pretty well of Congress that we are attuned to the complexities of the Constitution and are committed to being faithful to that document, not just taking convenience and going faster but taking the time to hear professors, to think it out, because in that way we respect the Constitution, we venerate it, we strengthen it. When we just bypass it or slide by, dismiss lightly concerns that actions of Congress or the President may be in violation of the Constitution and don't give due weight to that, we disrespect the document.

This law creates a new 2-year term that would run until September 4, 2013. It assumed that President Obama would nominate Director Mueller to that new term with the advice and consent of the Senate, requiring the confirmation vote we will proceed to shortly. Under the new law, Director Mueller is not eligible for another term after September 4, 2013, and after the expiration of that new term, the term for the Director of the FBI will revert to the previous law, the 10-year term; therefore, whoever is the President in 2013 can appoint a new Director to a 10-year term.

While I agree Congress should work to expedite the confirmation process in this unique situation, I also saw no reason to proceed in a constitutionally unsound manner. The formalities of the Constitution may sometimes create obstacles to getting things done as quickly as some would like, but the Constitution and its formalities exist for a very important reason; that is, our constitutional tradition of the adherence to the rule of law. We cannot circumvent those formalities in the interest of some expediency or because it is a convenient means to a desired end. The words of the Constitution have meaning. They are not suggestions that we are free to ignore if it is inconvenient today.

I believe in the process by which we are now proceeding--creating a separate 2-year term and then calling on the President to make a new nomination. He didn't have to renominate Director Mueller, but he indicated that was his desire, and we have accorded him the opportunity to do that. He has renominated Director Mueller, and I hope in a few moments we will confirm him to this important position.

One of the discussions we had at that hearing was with Professor Van Alstyne. I heard him make a speech many years ago--I was a U.S. attorney, so it must have been 15, 20 years ago--at the Eleventh Circuit Conference, I think, in Georgia. He spoke to the judges. He said he had come to the belief that if one really respected the Constitution, they would follow it faithfully, the good and the bad parts, because that was the only way you respected the Constitution, that was the way to honor the Constitution. That is the way to respect it, to follow what it says.

To the extent to which we are tempted to move around the plain words, the plain intent of the Constitution for convenience, we weaken that document. In the long run, a weakened document will be less of a bulwark protecting our liberties and our freedom as individual Americans.

I thank the President, I thank the leadership, and I thank Senator Leahy, the chairman of our committee, for responding to the professor's request and ideas and proceeding in a way that I think raises no question about constitutionality--or if it does, it is small--and in a way that took a little more effort.

I once again express my deep admiration for Director Mueller. He is a thoroughly professional law enforcement officer. For virtually the entire time of his law enforcement career, he has tried individual cases, prosecuted individual defendants for all kinds of crimes and depredations. He has understood the reality of courtroom experience. He has worked as a prosecutor with the FBI investigative agents over his entire career as a law enforcement officer, and now, as the Director of the FBI, he brings a unique experience to it. I believe he has done a fine job, and I believe he will continue to do a fine job for the people of the United States.

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