February 13, 2019 - Issue: Vol. 165, No. 28 — Daily Edition116th Congress (2019 - 2020) - 1st Session
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Nomination of William Barr (Executive Session); Congressional Record Vol. 165, No. 28
(Senate - February 13, 2019)
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[Pages S1300-S1304] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] Nomination of William Barr Mr. President, I will now turn my attention to the vote that will happen shortly today or tomorrow on William Barr to be Attorney General for the United States. Mr. Barr is a highly accomplished attorney and an experienced public servant with an outstanding record. The [[Page S1301]] Justice Department needs good, effective leadership, and we should act quickly to fill this top spot. I believe that Mr. Barr will be a good leader for the Justice Department as he has demonstrated in the past. In my opinion, at his Judiciary Committee nomination hearing, Mr. Barr was very candid with Senators. I believe he did his best at answering questions on his views on a wide variety of topics, as well as addressing concerns, including my own. For example, at the beginning of this confirmation process, I had concerns regarding Mr. Barr's prior negative statements on a subject that I have been working on for 4 years with Senator Durbin and Senator Lee--criminal justice reform. In particular, I was concerned about a 1992 Justice Department report released when he was Attorney General entitled ``The Case for More Incarceration.'' That title ought to tell you that he is tough on law enforcement. I was also concerned about a letter he signed in 2015 opposing the bill that we then entitled the Sentencing Reform and Correction Act of 2015. Obviously, if I think we need criminal justice reform for the first time in a generation, and the Attorney General puts out a letter against the part of it that Senator Durbin and I were working so hard on--by the way, the President signed that just before Christmas--then, I think it is legitimate that I ask him these questions. As Attorney General, Mr. Barr will be responsible for implementing the recently passed FIRST STEP Act of 2018, which 89 Members of this body supported. These Members also worked tirelessly for its passage. The FIRST STEP Act is the title of the bill that I call criminal justice reform. This is why one of my first questions during his confirmation hearing was to directly and clearly ask Mr. Barr if he would commit to fully implementing the FIRST STEP Act, considering the fact that he had written a letter 3 years ago against the concept. His answer was very clear and convincing to me, and that was one word--``yes.'' He went on to say: ``I have no problem with the approach of reforming the prison structure and I will faithfully implement the law.'' Later in the hearing, other Senators pointed to Mr. Barr's past stances on criminal justice and sentencing reform. Those Members asked for Mr. Barr's current views on the subject. They also asked for assurances that Mr. Barr would dutifully implement the FIRST STEP Act, just like I asked that question. Mr. Barr expressed his current misgivings about high sentences for drug offenders established in the 1990s. Each time, he answered very clearly that he would dutifully implement the FIRST STEP Act and work to ensure that the intent of Congress was realized. Mr. Barr's answers regarding the FIRST STEP Act relieved my concerns of his past statements. While I will continue to use the oversight powers of Congress to ensure that the FIRST STEP Act is applied and implemented as required by law, I believe Mr. Barr's testimony, and I look forward to working with him on both the implementation of the current law and future steps in criminal justice reform. I want to go on to another issue of importance to me, which was Mr. Barr's position on the False Claims Act. If you remember my participation in the False Claims Act, going back to 1986, that act has brought in $59 billion of fraudulently taken money from the Federal taxpayers. Leaders and top prosecutors of both sides of the aisle have now praised the law as the most effective tool the government has to detect, to prosecute, and actually to recover public money lost to fraud. Most of the $59 billion has come as a result of patriotic whistleblowers who found the fraud and brought the cases at their own risk. To let you know why I am concerned about Mr. Barr's opinion, in the past he was extremely critical of the False Claims Act, even after it was signed by President Reagan. He called it unconstitutional. At one time, he said it was an ``abomination.'' So at his nomination hearing, I pointedly asked Mr. Barr whether he believed the False Claims Act is unconstitutional. He said: ``No, Senator. It's been upheld by the Supreme Court.'' Mr. Barr also stated that he would fully and faithfully implement this very important law. He acknowledged the benefits of the False Claims Act and said: ``I will diligently enforce the False Claims Act.'' I also asked Mr. Barr about his stance on something called the ``Granston Memo.'' That memo provides a long list of reasons that the Justice Department can use to dismiss False Claims Act cases. Some of these reasons are pretty vague, such as ``preserving government resources.'' Just think as to how that can be used by some faceless bureaucrat to avoid some issue, like maybe he doesn't want to go after fraudulent money or doesn't like some whistleblower. Obviously, those words could mean anything the government wants it to mean. Of course, the government ought to be able to dismiss, obviously, meritless cases, but we don't want to give broad discretion to the administration without good justification. Even when the Justice Department declines to participate in a False Claims Act case, the whistleblower can and, in many cases, still does recover taxpayers' money. Although Mr. Barr had not yet read the memo, he pledged to sit down with me if problems arose. These are positive steps and positive statements. However, actions speak louder than words. So I want Mr. Barr to know that I am going to monitor aggressively how he enforces and protects the False Claims Act to ensure that he follows through on his promises. On another matter, during his confirmation hearing, I pressed Mr. Barr about transparency with regard to the special counsel's report. I made very clear that I want the report to be made public because taxpayers deserve to know what their money is being spent on--in this case, maybe $25 million to $35 million. I am not sure we have an exact figure, but it is a lot of money. The only way the American taxpayers and Congress can hold the government accountable is through transparency. You have heard me say many times that transparency brings accountability. Of course, there are some traditional reasons for withholding certain information even in a special counsel's report, such as national security or people's privacy, but there should be as much transparency as possible regarding the release of the report. During his hearing, Mr. Barr said that he would place a high priority on transparency, particularly with Mueller's report, and there is no reason to think that Mr. Mueller will not be allowed to finish his work. Mr. Barr told me and other members of this committee that he would ``provide as much transparency as [he] can consistent with the law and the Department's longstanding practices and policies.'' There is a lot of room there for him to work within, I suppose, and to still be honest in these answers. At this point, I can tell you I have no reason to doubt Mr. Barr's sincerity or his commitment to transparency and the law. If he is confirmed, I will be sure to hold Mr. Barr to his word on transparency. Yet I also realize that there are some differences of opinion around here on what is currently required under the Justice Department's special counsel regulations. That is why Senator Blumenthal and I recently introduced S. 236, the Special Counsel Transparency Act. This bill would require by statute that a special counsel provide a report to Congress and the American people at the conclusion of an investigation, not just Mueller's special counsel report but special counsels' reports into the future. This is commonsense transparency and accountability under any administration, not just under the Trump administration. I look forward to working with my colleagues and Mr. Barr, if he is confirmed, on this important legislation. I also pressed the nominee on a number of other issues that were related to transparency and accountability, including the Freedom of Information Act--or, as we call it around here, FOIA--and the Foreign Agents Registration Act. Around here, we refer to that as FARA. When I served as chairman of the Judiciary Committee, I helped to steer the FOIA Improvement Act of 2016 into law, which creates a very important point--a ``presumption of openness'' standard. The Justice Department oversees the Federal Government's compliance with FOIA. So that is why we discussed it with Barr. It is critical that the nominee, if confirmed to lead the Justice Department, takes FOIA and transparency seriously. [[Page S1302]] When you talk about a presumption of openness, it ought to be this simple: Any of the public's business ought to be public, and you presume it to be public. Let the government give a justification as to why it ought to be kept secret or not be open to the public under the Freedom of Information Act. I asked Mr. Barr if he agreed that FOIA were an important tool for holding the government accountable. Naturally, he said yes. I also asked the nominee if he would commit to ensuring the faithful and timely implementation of the 2016 FOIA amendments. He said: ``Yes, we will work hard on that.'' I also think that the entire FOIA process would be improved if Americans didn't have to fight tooth and nail for disclosure in the first place. Let me repeat that--fight tooth and nail for disclosure. That is why we have a presumption of openness when it comes to the Freedom of Information Act. Getting the public's information out to the public automatically should be a top priority. So I asked Mr. Barr if he would help to advocate for the more proactive disclosure of government records. Again, he said he would. I appreciate Mr. Barr's assurances. Of course, as I have said so many times during these remarks on different issues, I expect to hold him true to his word. Then, I went to the Foreign Agents Registration Act, or FARA. I asked him about the importance of it. My oversight work has highlighted the Justice Department's historically lax enforcement of that act. I think we had a hearing on it and found out that since 1937 there have been fewer than a dozen prosecutions under it. Now, all of a sudden, with Russia, Ukraine, and Turkey and a lot of other places, it has come to my attention that there are a lot of people who even recently haven't registered under it. On the other hand, I will bet people are hastening to register very fast. Yet the law has some shortcomings. In an age in which we are witnessing more foreign government efforts to influence the American public and policymakers, we should see more transparency and more enforcement against bad actors, not less enforcement. So I asked Mr. Barr if he agreed that FARA was an important national security and accountability tool, and he said yes. I asked Mr. Barr if he would be sure to make FARA enforcement a top priority under his leadership. Again, he said he would. I also asked Mr. Barr if he would commit to working with me on my bill to improve FARA. This bill before Congress is called the Disclosing Foreign Influence Act, and it seeks to better ensure transparency and accountability. Again, he said yes. Again, Mr. Barr can expect that I will hold him to his word. I also asked Mr. Barr about his position on antitrust enforcement-- specifically, whether he would ensure that healthcare and prescription drug antitrust issues would be a top priority for the Justice Department. The nominee responded: ``Competition is an important factor in containing the costs of healthcare'' and that he would ``work with the Antitrust Division to ensure appropriate and effective criminal and civil enforcement to protect Americans' interests in low-cost, high- quality healthcare.'' He stated that if confirmed, antitrust enforcement in the healthcare and pharmaceutical sectors ``will remain a priority'' for the Justice Department. I also expressed to the candidate my concerns about agriculture competition. He indicated that enforcing the antitrust laws in the agriculture sector will remain a priority. The topics I just discussed are just some of the areas that I asked Mr. Barr about at the confirmation hearing and in written questions for the record, and my Judiciary Committee colleagues questioned Mr. Barr at length on a variety of topics. I take Mr. Barr at his word. I don't believe he would bow to any kind of pressure, even from the President, if he thought there were a problem with the legality, constitutionality, or ethics of an issue. He is an excellent nominee-- extremely competent and experienced. Mr. Barr previously led the Justice Department and has proven his strong leadership abilities. Recall that back in 1991 the Senate Judiciary Committee unanimously reported Mr. Barr's nomination to be Attorney General under President George H.W. Bush. Can you believe it? The Senate confirmed him by a voice vote. What has changed after 25 years? I don't know, except that there is something some people think is wrong if a person by the name of Trump nominates somebody to some office. The only difference I can see is that even in the last 25 years, he has proven himself to be in the private sector what he did so well as a public servant. He is a very capable attorney and a straight shooter. He is willing to engage in productive discussions with Congress. That is a key quality that we want in anybody who runs the Justice Department, and I have had enough trouble with the Justice Department. I hope he will respond to my requests for oversight information more than the Democrats and Republicans had who preceded him. He is committed to working with me on my oversight requests, and I think my colleagues know that that is a responsibility that I take seriously. He will uphold the law and the Constitution. Mr. Barr deserves our support, and one can tell from my remarks that I am, obviously, proud to vote for him. I yield the floor. The PRESIDING OFFICER (Mr. Perdue). The Senator from Missouri. Mr. BLUNT. Mr. President, as the former chairman of the Judiciary Committee, the Senator from Iowa, has just pointed out, the Senate will soon vote on the nomination of William Barr to serve as Attorney General. As has also been pointed out, this is, undoubtedly, one of the most qualified nominees to come before the Senate in his having already held the same position under President George H.W. Bush. He has also served as an intelligence analyst at the CIA, as an Assistant Attorney General in the Department of Justice's Office of Legal Counsel, and as Deputy Attorney General before he served as Attorney General. His confirmation hearing lasted more than 12 hours, during which time he and other witnesses answered hundreds of questions on a wide variety of issues he might confront as Attorney General. He was straightforward and forthcoming. He earned high praise even from the ranking Democrat on that committee--our colleague, Senator Feinstein from California-- who said: He's obviously very smart. He was Attorney General before. . . . No one can say he isn't qualified. I was thinking last night, obviously Mr. Barr is qualified. He is bright. He is capable. She could have said more, but one of the things she said after that is, ``I won't be voting for him.'' This is an important job for the American people. There are a lot of jobs out there to be filled. It is hard to argue that any of them are more important than this one, but it is also hard to argue that there is not something wrong with a process where that is the comment that could be made, followed not too long after that by: I won't be voting for him. Senator Grassley pointed out that the last time Bill Barr was confirmed to be Attorney General, it was by voice vote. It seems as if that must have been a long time ago. It hasn't been that long ago; it is just the way the Senate used to work. That is why the Rules Committee that I chair voted out a Senate resolution earlier today dealing with this issue. This should not be the problem that it is. It shouldn't be an issue, but, frankly, the nomination process is broken. In every election in this country, one thing has been certain: At least one party will not be happy with the result. I certainly understand why our Democratic colleagues weren't happy with the results of the 2016 election. There have been elections I have not been happy about and some that I have been happier about than others even when I was happy. This is a process that makes it easy not to be pleased with what voters decide to do, but that doesn't give you the right to stand in the way of what voters try to do, and that is exactly what our friends on the other side of the aisle have done. Over the past 2 years, we have had unprecedented obstruction when it comes to just trying to put a government in place, unprecedented obstruction to confirming a President's nominees. [[Page S1303]] During the first Congress President Trump was in office, the previous 2 years, he submitted 1,136 nominees for jobs across the Federal Government. During that same period of time, President Obama submitted 1,132 nominees. By the way, President Trump is sometimes criticized for not getting the nominees up here quickly enough. He actually got four more nominees up during that period of time than President Obama did, but the Senate confirmed 920 of President Obama's nominees during that first 2 years, and the Senate only confirmed 714 of President Trump's nominees--barely half for President Trump and about 70 percent, 75 percent for President Obama. There is a nearly 200-person difference, but more important, maybe, than the difference is the obvious effort for us not to be able to get other work done. At the end of the last Congress, we returned the largest number of nominees from any President since Ronald Reagan. There are really only two reasons for that. One is to, frankly, stall the confirmation process and make it difficult for the President to do the job of being President. If you don't get the people to help you do the job you are elected to do, you can't do the job as effectively as you would otherwise. We just had a government shutdown, which I think all of us were disappointed by. That is bad policy. We don't want to repeat it again. We didn't want to repeat it that time. But we have a partial shutdown of many of these Agencies and parts of the government every single day because we don't have the people necessary to put the rules in place. There was a lot of discussion during the government shutdown about farmers who weren't able to get the loan guarantees they needed because the office was closed. Well, to some extent, it is the same way when the door is open but the people aren't there, when the door is open but the rules for the new farm bill haven't been issued, and when the door is open but the trade regulations that need to be made for the tax bill aren't out there. The other reason, by the way, the second reason, is just to use up floor time. There are only so many things we can do here on the Senate floor. The majority leader is fond of saying that the most precious commodity in the Senate is floor time. If we are required to drag out this process, as the minority has insisted we do for the last 2 years, things don't happen otherwise. During the first 2 years of the Trump administration, there were 128 cloture votes right here--128 cloture votes. That is where a Democrat-- usually the minority leader--insists that we are going to have to get a majority of votes to even have the debate on a candidate. Once you file that, that takes a day before you can even begin to have the debate, and then the debate is 30 hours. So half a week is gone before the week starts just trying to confirm one person for one thing. That could be as important as a Supreme Court Justice, or it could be the lowest level of confirmation in any of the Agencies of government. By the way, those are the people who haven't been put in place because obviously lifetime judges matter, and both parties would prioritize that. There have been 128 cloture votes. In the first 2 years of the past three Presidents, there were cloture votes a total of 24 times--24 times. That is an average of 8 compared to 128. There is a lot of difference between 8 and 128. Because the tradition of the Senate--as a matter of fact, I think if President Bush were on here, President George H. W. Bush--that number was zero. No time. And that was much more traditional, up until that time, than now. When President Reagan was President, once a nominee got out of committee, it was an average of 5 days before that nominee had a vote here on the Senate floor. It was normally the same kind of voice vote that Senator Grassley mentioned that Bill Barr had the last time. The average was 5 days. With President Trump, it was 55 days before a nominee could get a vote once they got out of committee. Remember, if you have agreed to serve in one of these jobs, you have given all of your financial information, you have given all of your personal information, and you have been investigated through and through. You have appeared before a committee, and they have asked you every question they could think of to ask you. They have voted you out of that committee. And then 24 people, at the end of last year, were sent back to the White House, at the end of that conference--I think it was over 24 people, over two dozen people--who had been waiting 1 year to become maybe the Deputy Assistant Secretary of Interior. This will not work. This is not how our system is supposed to work, and we need to move forward. And it is not like when this happens--when these 128 cloture votes happen--there is a huge debate. There are 30 hours, plus the intervening day, but that doesn't mean there is any big debate. In fact, usually there is almost no debate at all on these nominees. When the nominees were voted on, 48 percent of the nominees got over 60 votes and 37 percent of the nominees got over 70 votes. So clearly this is not about holding back somebody who could be confirmed; it is about using up time that should be used for other things. There are two jobs in the Senate. One of them is the personnel business. One of them is confirming people the President nominates. But the other is the legislating business. The other is the funding the government business. The other is the talking about foreign policy business. The other is talking about the economy and trade and taxes. Every hour we spend on this is an hour we can't spend on that. The resolution we passed out today was one I introduced with my colleague from Oklahoma, Senator Lankford, who has been working on this issue for 2 years now, and others of us have as well. We introduced this bill to cut the amount of time back to what had been a temporary standing order when Republicans were in the minority, and we agreed to this temporary standing order. The Democrats were in the majority. There was a Democrat in the White House. We agreed to essentially this same framework: 2 hours for most nominees, 30 hours for circuit judges and Supreme Court Justices and Cabinet officers. Seventy-eight Senators voted for that temporary order. Usually when you do you a temporary order, it is to see if it works. Well, it worked, but we didn't do it again. So we are now saying, let's make that temporary order a permanent part of the way the Senate approaches this part of its job. We are moving in that direction. We had a debate this morning in committee. The time we are spending on the floor--if there is a nominee who needs 30 hours, they are almost certainly going to be in that category that gets 30 hours. If there is a nominee who would be in the 2-hour category, they are going to have been through committee, they are going to have been thoroughly vetted, and the committee will have decided they should be reported out. We need to get back to where 5 days after that, the Senate lets this person go on to fill a job that is, in all likelihood, not going to last beyond one administration and maybe not even that. It won't be long before nobody is willing to sign up if a year later, after you have put your life on hold, you find out that the Senate somehow can't get to the job you have agreed to serve on because we have to take time that the Senate never took before. I hope my colleagues on both sides of the aisle look at that standing order that could change our rules in a way that allows people who are willing to serve to be thoroughly vetted, thoroughly questioned, and then voted on. This can't happen unless they get voted on. Clearly, the current process of voting on people is a process that has been abused. While the Senate is a place that recognizes the rights of the minority, those rights have only been upheld when the minority viewed them for what they are--rights of the minority rather than tools of the minority to obstruct the elected Government of the United States of America and the work of the Senate. I yield the floor. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The senior assistant legislative clerk proceeded to call the roll. Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. [[Page S1304]] S. 47 Ms. MURKOWSKI. Mr. President, we have finally completed our work on S. 47, the Natural Resources Management Act. We had a good day yesterday. We had a good day here in the U.S. Senate. We passed this significant bill--really, a landmark piece of legislation--out of the Senate by a vote of 92 to 8. That is pretty strong. You don't see a lot of that in the Senate anymore--every now and again, and this was one of those every now and agains. I appreciate all the work. We have now sent this over to the House of Representatives, and it has some good momentum. We are looking forward to being able to work with the House. I encourage them to move quickly on this important measure and see it enacted into law. I want to take just a few moments this afternoon, while I can, to thank so many who have been key in getting us to this point. I want to start my comments with acknowledging the former ranking member of the Energy and Natural Resources Committee, Senator Cantwell from Washington. We have spent a lot of time together. We have spent a lot of time over the years working on these lands bills. We did it in the public forum through the committee process. We had hearings on hundreds of bills. We worked to refine and reach agreement on them and to report them from committee. So there was all of that process, which went on throughout the committee, and then the two of us sitting down with our staffs on noncommittee time, just working through these particulars, in many meetings in my office and in her office. We really did this on a bipartisan basis. We stuck together. There were times when the prospects for this package did not look so good, and then there were moments when it looked even worse than not so good. But we kind of pulled one another along. I think that is a tribute to the commitment we made as colleagues and partners in this to advance not just to a message but to a product. I truly think that is a tribute to Senator Cantwell and her willingness to work together to find a path forward. Then we weren't able to finish things at the end of the year. Senator Cantwell moved over to another committee, and I had an opportunity to pick up with Senator Manchin. He picked up. Here he comes in, a new ranking member, and he has a bill to help manage on the floor with some 100-plus bills. But he helped us in a way that I am most, most grateful for. He kept us on track and helped us secure a very strong final tally here. I am also very grateful to my other corners, the chairman and ranking member of the Natural Resources Committee on the House side, Chairman Grijalva and Ranking Member Bishop. I thank them for their exceptional, exceptional work on this package and look forward to working with them as we finish this out. Next on my list are Leader McConnell and Senator Schumer. The minority leader is here. We had a conversation on the floor just about where he is sitting--this was back in December. But the two leaders gave their commitment to take this bill up early this year. They kept that commitment. They made it happen. I thank them for what they did in recognizing that this public lands, resources, and waters bill deserved early attention in this new Congress. I mentioned on the floor that there were many colleagues on both sides: Senator Heinrich, Senator Gardner, Senator Daines from Montana, Senator Wyden from Oregon, all of whom have been great partners here on the floor. It is important to briefly mention the staffs, who put in the long hours--the work and the family life they gave up. The first person on my list to recognize is my deputy chief counsel, Lucy Murfitt, who is truly an expert, a true expert on the lands issue. She has poured her heart and soul into these issues, and it is no exaggeration to say they would not have happened without her efforts. I also thank my staff director, Brian Hughes; my chief counsel, Kellie Donnelly; the members of my lands team, Annie Hoefler, Lane Dickson, and Michelle Lane; our communications team, Nicole Daigle, Michelle Toohey, and Tonya Parish; our support staff, including Melissa Enriquez and Sean Solie; then Brianne Miller and Isaac Edwards, who basically kept the committee running while everyone else was focusing on this bill. While I am proud of my team, we had great partners on the other side of the aisle. Sarah Venuto and Lance West joined the committee with Senator Manchin, and they have been great to work with. Sam Fowler, David Brooks, Rebecca Bonner, Bryan Petit, Camille Touton, Mary Louise Wagner, and Amit Ronen also played key roles. Then on the House side, we had David Watkins and Brandon Bragato of Chairman Grijalva's staff, along with Parish Braden and Cody Stewart, who has now left the Hill, of Ranking Member Bishop's staff. I have to give a shout-out for the floor staff. Laura Dove and her team were fabulous. We also appreciate our Parliamentarians, Elizabeth McDonough and Leigh Hildebrand; Terry Van Doren with Leader McConnell; and Aniela Butler at the Senate Budget Committee. Two of the individuals who probably put the most time into this package, Heather Burnham and Christina Kennelly, are in the Office of Senate Leg Counsel. I also thank Janani Shankaran, Kim Cawley, and Aurora Swanson at CBO. Great members, great team--we could not have done this great work without them. To Senator Schumer, I say thank you for allowing me to complete this in its entirety. I appreciate your indulgence. The PRESIDING OFFICER. The Democratic leader. Mr. SCHUMER. Mr. President, let me thank the chair of the Energy Committee, the senior Senator from Alaska, for the wonderful work she always does around here. She has the respect of Members on both sides of the aisle. She tries to do the right thing and ends up there so often. This lands bill wouldn't have happened without a lot of the people she mentioned, but at the top of the list would certainly, certainly, be the senior Senator from Alaska. Once again, I tip my hat to the junior Senator from Washington State, who worked so long and hard on this. The two of them were a great team, and Joe Manchin filled in when he became ranking member. We are all very glad that this wonderful lands bill, with so many good things in it, will, barring any unforeseen mishap, become law very soon.
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