Afternoon Session of a Hearing of the Senate Judiciary Committee - Oversight of the U.S. Department of Justice

Interview

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SEN. LEAHY: Welcome back, and Mr. Attorney General, thank you. It's not a lack of interest that you don't have a larger audience than this. What is happening on the -- both the Democratic and Republican leadership in key committees are trying to work out some of the basis of the stimulus package, I think an area where both Democrats and Republicans want to work closely with the president and on a -- not in a partisan way but a way for the country is to see if there is a stimulus package we can do. And I just came from a meeting where a number of members of this committee were at, and I'm sure there are similar meetings on the Republican side. We're trying to do that.

We're also trying to work out some agreements on FISA. We have this 15-day extension, which is something, again, Republicans and Democrats worked out. And now we're working out some of the things that would be in order for votes for any change.

So I say that as a matter -- just to let you know why many on both sides of the aisle are missing.

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SEN. LEAHY: Well, thank you. And I would note when you look into this you'll find that at least one of the witnesses who testified -- claimed executive privilege at one point, testified partially, claimed executive privilege partially -- also said that she had never discussed this matter with the president, never had any of these matters discussed with those who were going to discuss it with the president. And frankly, we found the claim of executive privilege to be a tad broad.

I don't want to use the word "cover-up," although that was the first thing that occurred to me. It actually was the second thing that occurred to me, too, but let me go on -- follow up on Senator Whitehouse's questions on the CIA tapes.

If waterboarding was shown on these destroyed CIA tapes, how would you determine -- suppose we find that there's a backup to the tapes -- and usually in these kind of instances you do find there is a backup -- but let's suppose there was a backup, and you went in there and they found waterboarding. How do you determine whether that's evidence of a crime or not when there seems to be ambivalence by you regarding the legal status of waterboarding?

ATTY GEN. MUKASEY: John Furman (sic/Durham) is in charge of this investigation, and he is going to follow it where it leads, and that means wherever it leads.

SEN. LEAHY: Well, let me ask you about that. John Durham is --

ATTY GEN. MUKASEY: I said Furman; I meant Durham.

SEN. LEAHY: -- I know what you meant -- is doing this because it normally would have been the U.S. attorney for the Eastern District of Virginia, who's recused himself. Why did he recuse himself?

ATTY GEN. MUKASEY: I believe he recused himself for -- over issues relating to a case that he had and the fact that he generally has a relationship with the CIA because they are located in his district. And I can't --

SEN. LEAHY: Well, Mr. Durham's going to use some of his team. How do we determine, one, what the conflict was, and whether anybody else has that conflict in that team?

ATTY GEN. MUKASEY: His team reports to him. He --

SEN. LEAHY: To?

ATTY GEN. MUKASEY: To Durham.

SEN. LEAHY: But some of them are taken from the Eastern District of Virginia, are they not?
SEN. LEAHY: Well, thank you. And I would note when you look into this you'll find that at least one of the witnesses who testified -- claimed executive privilege at one point, testified partially, claimed executive privilege partially -- also said that she had never discussed this matter with the president, never had any of these matters discussed with those who were going to discuss it with the president. And frankly, we found the claim of executive privilege to be a tad broad.

I don't want to use the word "cover-up," although that was the first thing that occurred to me. It actually was the second thing that occurred to me, too, but let me go on -- follow up on Senator Whitehouse's questions on the CIA tapes.

If waterboarding was shown on these destroyed CIA tapes, how would you determine -- suppose we find that there's a backup to the tapes -- and usually in these kind of instances you do find there is a backup -- but let's suppose there was a backup, and you went in there and they found waterboarding. How do you determine whether that's evidence of a crime or not when there seems to be ambivalence by you regarding the legal status of waterboarding?

ATTY GEN. MUKASEY: John Furman (sic/Durham) is in charge of this investigation, and he is going to follow it where it leads, and that means wherever it leads.

SEN. LEAHY: Well, let me ask you about that. John Durham is --

ATTY GEN. MUKASEY: I said Furman; I meant Durham.

SEN. LEAHY: -- I know what you meant -- is doing this because it normally would have been the U.S. attorney for the Eastern District of Virginia, who's recused himself. Why did he recuse himself?

ATTY GEN. MUKASEY: I believe he recused himself for -- over issues relating to a case that he had and the fact that he generally has a relationship with the CIA because they are located in his district. And I can't --

SEN. LEAHY: Well, Mr. Durham's going to use some of his team. How do we determine, one, what the conflict was, and whether anybody else has that conflict in that team?

ATTY GEN. MUKASEY: His team reports to him. He --

SEN. LEAHY: To?

ATTY GEN. MUKASEY: To Durham.

SEN. LEAHY: But some of them are taken from the Eastern District of Virginia, are they not?

ATTY GEN. MUKASEY: They are. The Eastern District of Virginia has a requirement that when people appear in court on behalf of the government, at least one of them be a member of the bar of that court. And people have been taken from that office who do not have potentially -- it wasn't that there was a conflict determined; they were -- things were teased out to determine the possibility that there may be a conflict.

SEN. LEAHY: But he made a recusal -- did he -- did he, in his recusal, request that he lay out what it was that he was recusing himself or why he was recusing himself?

ATTY GEN. MUKASEY: I'm not going to get into the details of what it was he laid out, what it was we responded. Facts were teased out in such a way as to present the possibility that there could be a conflict, and in order to avoid that --

SEN. LEAHY: But you granted his recusal. Can you assure us that nobody else in the office that are going to be working with Mr. Durham has the same conflict?

ATTY GEN. MUKASEY: My understanding is that the people who were selected were selected because they didn't and couldn't have the same possible conflict that was possible if others worked on it. And Mr. Durham is the person to whom they report, not the U.S. attorney.

SEN. LEAHY: And we sent you a letter which said when and how did department officials or attorneys first become aware of the evidence of videotapes of detainee interrogations. Do we have an answer for that?

ATTY GEN. MUKASEY: You mean beyond this case? No, I don't.

SEN. LEAHY: Well, in any case, when and where did the department officials or attorneys first become aware of videotapes of detainee interrogations?

ATTY GEN. MUKASEY: That I do not know.

SEN. LEAHY: Did they ever view any of these tapes?

ATTY GEN. MUKASEY: I don't know that. And what was -- what was done within the department is not something that I would disclose if I knew it.

SEN. LEAHY: Well, wouldn't it be fairly important? If they had viewed the tapes, that would mean that they -- either there are tapes that have not been destroyed, or the Department of Justice was looking at them prior to a decision being made to destroy them, which raises all kinds of other questions.

ATTY GEN. MUKASEY: I didn't say I wouldn't look into it. I said I wouldn't simply disclose it here.

SEN. LEAHY: Well, perhaps you and I should discuss this after you've had a chance to look into it in private, perhaps with Senator Specter, because you understand the conundrum I see in this case. If they had viewed them, that meant that at some point that they were there, there's a reason for the Department of Justice to view them, and then the question comes: Who gave the order to destroy them? Unless some are still there.

ATTY GEN. MUKASEY: The question of who gave the order to destroy them is, it seems to me, separate from whether anybody from the Justice Department viewed them, and if so, when. I don't --

SEN. LEAHY: Well, it depends on when they viewed them.

ATTY GEN. MUKASEY: (You think ?) --

SEN. LEAHY: For example, where -- was anybody in the department asked about the advisability or legality of destroying the tapes?

ATTY GEN. MUKASEY: I've seen a report relating to that. I have seen no evidence relating to that.

SEN. LEAHY: No evidence related to what?

ATTY GEN. MUKASEY: To somebody in the department advising as to the advisability of destroying the tapes. And in any event, John Durham would be conducting that investigation.

SEN. LEAHY: And you don't recall when and how the department became aware that the tapes were -- had been destroyed?

ATTY GEN. MUKASEY: I recall when and how I became aware of it.

SEN. LEAHY: And that was?

ATTY GEN. MUKASEY: That was when I opened the door to my apartment and picked up The Washington Post.

SEN. LEAHY: I remember the time of a CIA director, no longer alive, who used to come to the Hill and say, usually the day after The New York Times had reported a number of things going on, would say, I really meant to have told you about that. I was required by law to tell you about it. I forgot to tell you.

We then had, the third time he came up, in the Intelligence Committee, it was said to him, well, just mark The New York Times top secret. We'll get the information -- or The Washington Post but in this case, the Times -- we'll get the information faster. Secondly we'll get it in greater detail. And third, we get this wonderful crossword puzzle.

ATTY GEN. MUKASEY: In fairness, it may well be that that issue was on its way to me before that story appeared, but that's --

SEN. LEAHY: And I realize there's a million things that come to you, so I --

ATTY GEN. MUKASEY: It's not that it came to me and I forgot.

SEN. LEAHY: But this is a pretty big one.

Did you have communications between your department and the White House about the destruction?

ATTY GEN. MUKASEY: Sorry, I don't understand the question.

SEN. LEAHY: Well, obviously at some point, there was a plan to destroy them. Was there any communication between the Department of Justice and the White House about that?

ATTY GEN. MUKASEY: That is something Mr. Durham, it seems to me, would look at.

SEN. LEAHY: And when he's finished his investigation, do you have any problems with him testifying before this committee?

ATTY GEN. MUKASEY: We don't -- we have never -- I think U.S. attorneys have not testified as to pending cases. And I don't see any reason to make an exception here.

SEN. LEAHY: We may come back to that if we're unable to find some of these other answers.

You've doubtless heard about how the White House, even though they're required by law to maintain e-mail records, now say they've destroyed many from the first couple years, or over a period of two years.

Have you seen that in the press?

ATTY GEN. MUKASEY: I saw a story that there were e-mails that should have been there, but aren't.

SEN. LEAHY: And of course, we then also have that they were using Republican National Committee server and then we -- and we were told that's all been destroyed and then we were told that, oops, it's all there on a backup but we're still not going to show it to you. If they were not following the law and maintain these records, that the laws are fairly clear, which -- White House records have to be retained, and you may recall that Congress asked extensive questions about that during the last administration. Is this anything, if it turns out that they have not followed that law, is that something your department would look into?

ATTY GEN. MUKASEY: Seems to me I would need to know the circumstances under which the records were not retained. There are --

SEN. LEAHY: Well, if the law -- let's assume, if the law is clear, records have to be retained. Instead, records were destroyed. Does that raise any questions in your mind?

ATTY GEN. MUKASEY: Something I would want to know more about.

SEN. LEAHY: Well, I would hope somebody would find out about it. We get stonewalled by the White House when we ask the questions why the law wasn't followed. I would hope that the attorney general would ask the questions.

But I see Senator Grassley's here, and it's his turn. Go ahead, Senator Grassley.
ATTY GEN. MUKASEY: They are. The Eastern District of Virginia has a requirement that when people appear in court on behalf of the government, at least one of them be a member of the bar of that court. And people have been taken from that office who do not have potentially -- it wasn't that there was a conflict determined; they were -- things were teased out to determine the possibility that there may be a conflict.

SEN. LEAHY: But he made a recusal -- did he -- did he, in his recusal, request that he lay out what it was that he was recusing himself or why he was recusing himself?

ATTY GEN. MUKASEY: I'm not going to get into the details of what it was he laid out, what it was we responded. Facts were teased out in such a way as to present the possibility that there could be a conflict, and in order to avoid that --

SEN. LEAHY: But you granted his recusal. Can you assure us that nobody else in the office that are going to be working with Mr. Durham has the same conflict?

ATTY GEN. MUKASEY: My understanding is that the people who were selected were selected because they didn't and couldn't have the same possible conflict that was possible if others worked on it. And Mr. Durham is the person to whom they report, not the U.S. attorney.

SEN. LEAHY: And we sent you a letter which said when and how did department officials or attorneys first become aware of the evidence of videotapes of detainee interrogations. Do we have an answer for that?

ATTY GEN. MUKASEY: You mean beyond this case? No, I don't.

SEN. LEAHY: Well, in any case, when and where did the department officials or attorneys first become aware of videotapes of detainee interrogations?

ATTY GEN. MUKASEY: That I do not know.

SEN. LEAHY: Did they ever view any of these tapes?

ATTY GEN. MUKASEY: I don't know that. And what was -- what was done within the department is not something that I would disclose if I knew it.

SEN. LEAHY: Well, wouldn't it be fairly important? If they had viewed the tapes, that would mean that they -- either there are tapes that have not been destroyed, or the Department of Justice was looking at them prior to a decision being made to destroy them, which raises all kinds of other questions.

ATTY GEN. MUKASEY: I didn't say I wouldn't look into it. I said I wouldn't simply disclose it here.

SEN. LEAHY: Well, perhaps you and I should discuss this after you've had a chance to look into it in private, perhaps with Senator Specter, because you understand the conundrum I see in this case. If they had viewed them, that meant that at some point that they were there, there's a reason for the Department of Justice to view them, and then the question comes: Who gave the order to destroy them? Unless some are still there.

ATTY GEN. MUKASEY: The question of who gave the order to destroy them is, it seems to me, separate from whether anybody from the Justice Department viewed them, and if so, when. I don't --

SEN. LEAHY: Well, it depends on when they viewed them.

ATTY GEN. MUKASEY: (You think ?) --

SEN. LEAHY: For example, where -- was anybody in the department asked about the advisability or legality of destroying the tapes?

ATTY GEN. MUKASEY: I've seen a report relating to that. I have seen no evidence relating to that.

SEN. LEAHY: No evidence related to what?

ATTY GEN. MUKASEY: To somebody in the department advising as to the advisability of destroying the tapes. And in any event, John Durham would be conducting that investigation.

SEN. LEAHY: And you don't recall when and how the department became aware that the tapes were -- had been destroyed?

ATTY GEN. MUKASEY: I recall when and how I became aware of it.

SEN. LEAHY: And that was?

ATTY GEN. MUKASEY: That was when I opened the door to my apartment and picked up The Washington Post.

SEN. LEAHY: I remember the time of a CIA director, no longer alive, who used to come to the Hill and say, usually the day after The New York Times had reported a number of things going on, would say, I really meant to have told you about that. I was required by law to tell you about it. I forgot to tell you.

We then had, the third time he came up, in the Intelligence Committee, it was said to him, well, just mark The New York Times top secret. We'll get the information -- or The Washington Post but in this case, the Times -- we'll get the information faster. Secondly we'll get it in greater detail. And third, we get this wonderful crossword puzzle.

ATTY GEN. MUKASEY: In fairness, it may well be that that issue was on its way to me before that story appeared, but that's --

SEN. LEAHY: And I realize there's a million things that come to you, so I --

ATTY GEN. MUKASEY: It's not that it came to me and I forgot.

SEN. LEAHY: But this is a pretty big one.

Did you have communications between your department and the White House about the destruction?

ATTY GEN. MUKASEY: Sorry, I don't understand the question.

SEN. LEAHY: Well, obviously at some point, there was a plan to destroy them. Was there any communication between the Department of Justice and the White House about that?

ATTY GEN. MUKASEY: That is something Mr. Durham, it seems to me, would look at.

SEN. LEAHY: And when he's finished his investigation, do you have any problems with him testifying before this committee?

ATTY GEN. MUKASEY: We don't -- we have never -- I think U.S. attorneys have not testified as to pending cases. And I don't see any reason to make an exception here.

SEN. LEAHY: We may come back to that if we're unable to find some of these other answers.

You've doubtless heard about how the White House, even though they're required by law to maintain e-mail records, now say they've destroyed many from the first couple years, or over a period of two years.

Have you seen that in the press?

ATTY GEN. MUKASEY: I saw a story that there were e-mails that should have been there, but aren't.

SEN. LEAHY: And of course, we then also have that they were using Republican National Committee server and then we -- and we were told that's all been destroyed and then we were told that, oops, it's all there on a backup but we're still not going to show it to you. If they were not following the law and maintain these records, that the laws are fairly clear, which -- White House records have to be retained, and you may recall that Congress asked extensive questions about that during the last administration. Is this anything, if it turns out that they have not followed that law, is that something your department would look into?

ATTY GEN. MUKASEY: Seems to me I would need to know the circumstances under which the records were not retained. There are --

SEN. LEAHY: Well, if the law -- let's assume, if the law is clear, records have to be retained. Instead, records were destroyed. Does that raise any questions in your mind?

ATTY GEN. MUKASEY: Something I would want to know more about.

SEN. LEAHY: Well, I would hope somebody would find out about it. We get stonewalled by the White House when we ask the questions why the law wasn't followed. I would hope that the attorney general would ask the questions.

But I see Senator Grassley's here, and it's his turn. Go ahead, Senator Grassley.

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SEN. WHITEHOUSE: Mr. Chairman, what I think I'll do, actually, is put it in the form of a letter so that I don't extend the hearing any further. It has to do with the Office of Legal Counsel, which for a long time has been sort of the internal legal compass for the department. And as you know, some of the declassified opinions -- some of the declassified sections of highly classified opinions that I've had access to give me cause to worry that it has become sort of a "hot house" for rogue ideological opinion protected from the whims of scrutiny and peer review and other things by the classification shield. And I think some of the ideas need to be reviewed, and I would like to take that up. But I will take that up at later time, and I appreciate very much the chairman's indulgence and I appreciate the attorney general's --

SEN. LEAHY: No, I think it's a very -- it's an area I'm quite interested in too. And I realize some of these -- we may have to discuss in a classified session, but we've read -- there's actually been books written on this. The disarray of the Office of Legal Counsel and the problems that it's caused all the way through the administration. The senator from Rhode Island raises a good question, and perhaps that's something we could meet privately, first, to talk about -- unless you wanted to say something here.

ATTY GEN. MUKASEY: I know that the -- (inaudible word) -- wisdom is that if you comment when there's no question, that you're putting your foot in your mouth.

SEN. : (Laughs.) Good call.

ATTY GEN. MUKASEY: But the book -- or a book that you refer to in referring to OLC says that regardless of what you think or don't think about the opinions, nobody in that unit ever believed that they were violating the law or ever intended to violate the law. That is -- those are two important points that Jack Olsen made in his book and that, in my view, too rarely get discussed.

SEN. LEAHY: No, and I agree with that. I'm not suggesting breaking the law. I just want to make sure that we have opinions of that nature done because it's the best law, not because it's an ideological --

ATTY GEN. MUKASEY: Absolutely. And we agree on that.

SEN. LEAHY: I have no problems with whoever is president to say, okay, if we can act within the law, here's policies I want carried out. But I want to make sure that somebody looks at the law and says, well, you can do that, Mr. President, or you can't do that, based on what the law is.

In fact, I had one other area on this -- actually raising from two different writers who often have two different views. Nat Hentoff raised concerns about Mr. Durham's lack of independence. He said that, quote, "Durham will report to a deputy attorney general, who then reports to the attorney general, and thereby will not be autonomous."

And then conservative scholar Bruce Fein, who served in the Reagan Justice Department, who's testified before this committee a number of times, raised similar questions. He said the flaw in the current arrangement is that the attorney general is still entrusted with determining whether to invoke state secrets or executive privilege to withhold critical evidence from the prosecutor. It would be like President Nixon determining what evidence to give Archibald Cox or Leon Jaworski investigating Watergate.

I read both those articles. The question came to my mind, why wasn't he just given the kind of a authority that Special Counsel Patrick Fitzgerald was given in the CIA leak case?

ATTY GEN. MUKASEY: There is a regulation regarding when you appoint a special counsel and when you don't. You appoint a special counsel when there's a conflict. And to suggest that every time a big case comes up in which the government is under investigation in some fashion there's a conflict does two pernicious and unnecessary things.

SEN. LEAHY: So what you're saying is that there may have been a conflict with the U.S. attorney, but you don't see a conflict in your office; therefore, he doesn't have to have the position of Mr. Fitzgerald?

ATTY GEN. MUKASEY: Correct. I don't want to tell everybody that every time that happens, they can't have faith in the Justice Department, because they can.

I don't want to tell the Justice Department, we don't have faith in you because this is a big investigation.

SEN. LEAHY: Of course then that raises a question I asked earlier. What was the conflict that required the U.S. attorney to recuse himself?

ATTY GEN. MUKASEY: That was the result of a consideration of possible facts, and the act that was done was done out of an excess of caution.

SEN. LEAHY: I realize we're going in a bit of a circle. We probably will have this conversation more, but I see Senator Durbin is here. Senator Durbin ask his questions, and then I have a couple closing remarks. And you'll be able to go back to running the department, and we'll be able to go back to seeing what mischief we can cause on the floor of the Senate.

Senator Durbin.

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SEN. LEAHY: Well, I said I'd give you the last word. Let me just add to what you said as one who has been in -- now in my 34th year in the Senate, who looks at my earlier career as a prosecutor as one of highlights of my public life, I will work with you on those things that'll make it better. I think both you and I would agree that we need the best Department of Justice and when this president leaves they leave a Department of Justice in the best shape possible for the next president, whomever that might be.

With that, we stand in recess.

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