[Senate Hearing 107-298]
[From the U.S. Government Publishing Office]
S. Hrg. 107-298
CONFIRMATION HEARING ON THE NOMINATIONS OF MICHAEL CHERTOFF AND VIET D.
DINH
TO BE ASSISTANT ATTORNEYS GENERAL
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
MAY 9, 2001
__________
Serial No. J-107-18
__________
Printed for the use of the Committee on the Judiciary
_______
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas CHARLES E. SCHUMER, New York
MITCH McCONNELL, Kentucky RICHARD J. DURBIN, Illinois
MARIA CANTWELL, Washington
Sharon Prost, Chief Counsel
Makan Delrahim, Staff Director
Bruce Cohen, Minority Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 4
PRESENTERS
Corzine, Hon. Jon, a U.S. Senator from the State of New Jersey
presenting Michael Chertoff, of New Jersey, Nominee to be
Assistant Attorney General, Criminal Division, Department of
Justice........................................................ 10
Domenici, Hon. Pete V., a U.S. Senator from the State of New
Mexico presenting Viet D. Dinh, of the District of Columbia,
Nominee to be Assistant Attorney General for Legal Policy,
Department of Justice.......................................... 7
Sanchez, Hon. Loretta, a Representative in Congress from the
State of California presenting Viet D. Dinh, of the District of
Columbia, Nominee to be Assistant Attorney General for Legal
Policy, Department of Justice.................................. 3
STATEMENTS OF THE NOMINEES
Chertoff, Michael, of New Jersey, Nominee to be Assistant
Attorney General, Criminal Division, Department of Justice..... 11
Questionnaire................................................ 16
Dinh, Viet D., of the District of Columbia, Nominee to be
Assistant Attorney General for Legal Policy, Department of
Justice........................................................ 86
Questionnaire................................................ 89
QUESTIONS AND ANSWERS
Responses of Michael Chertoff to questions submitted by Senator
Thurmond....................................................... 155
Responses of Michael Chertoff to questions submitted by Senator
Grassley....................................................... 155
Responses of Michael Chertoff to questions submitted by Senator
Leahy.......................................................... 156
Responses of Michael Chertoff to questions submitted by Senator
Durbin......................................................... 157
Responses of Viet D. Dinh to questions submitted by Senator Leahy 160
Responses of Viet D. Dinh to questions submitted by Senator Biden 168
Responses of Viet D. Dinh to questions submitted by Senator
Feinstein...................................................... 169
Responses of Viet D. Dinh to questions submitted by Senator
Durbin......................................................... 171
CONFIRMATION HEARING ON THE NOMINATIONS OF MICHAEL CHERTOFF AND VIET D.
DINH TO BE ASSISTANT ATTORNEYS GENERAL
----------
WEDNESDAY, MAY 9, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:10 a.m, in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Specter, Sessions, Leahy, and
Durbin.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Well, good morning, everybody, and welcome
to the nomination hearing before the Senate Judiciary Committee
today.
Today we will be considering the nominations of Michael
Chertoff to be the Assistant Attorney General for the Criminal
Division and Viet Dinh to be the Assistant Attorney General for
the Office of Policy Development.
Before we begin, I would like to congratulate both of these
nominees for being chosen by the President for these important
positions. Both of you have distinguished yourselves by your
hard work, your intellect, your fairness and decency, and I
think you will do great service to the Department of Justice
and the citizens of this country upon your confirmation.
The position of Assistant Attorney General for the Criminal
Division is vital to the Department of Justice and to this
country and to every citizen in this country. The Criminal
Division develops, enforces, and supervises the application of
almost all Federal criminal laws. The person who fills this job
has to have unquestioned integrity and competency and must be
able to exercise good judgment and provide objective legal
advice to the Attorney General and other departments and
branches of Government. So this is an extremely important
position, and it needs to be filled now.
Mr. Chertoff meets all of these requirements. His
distinguished legal career includes substantial experience not
only in the private sector but also in all three branches of
the Federal Government. Highlights of his career include
graduating with honors from Harvard College and Harvard Law
School and serving as a law clerk for Justice Brennan of the
U.S. Supreme Court. He also served as Assistant U.S. Attorney
for the Southern District of New York and as U.S. Attorney for
the District of New Jersey.
In 1994, Mr. Chertoff served as special counsel to the U.S.
Senate Special Committee to Investigate Whitewater and Related
Matters, and I think most Senators would readily concede that
he was very fair in what he did.
Most recently, he has worked as a partner in the
prestigious law firm of Latham and Watkins, where he serves as
national chair of the firm's white-collar criminal practice. It
is difficult for me--or anybody else, I think--to imagine a
person more suited to be chief of the Criminal Division, which
explains why his nomination has received such significant
bipartisan support.
Viet Dinh is a similarly good fit for the position of
Assistant Attorney General for the Office of Policy
Development. This is an extremely important position within the
Department of Justice. The OPD coordinates Department
initiatives, briefing materials, and policy statements. It also
works to review legislation and to ensure that the
administration's agenda is being carried forward in the policy
arena.
Moreover, the office serves as a liaison to the Office of
Management and Budget and other agencies on regulatory matters.
Although Mr. Dinh is still young, there is no doubt that his
life experiences and professional accomplishments make him
eminently qualified for this role. I hope he will tell us about
coming to this country from Vietnam when he was 10 years of
age. But we already know from the mountain of materials he has
submitted to the Committee that he has been writing and making
public appearances ever since.
Mr. Dinh has a very impressive academic background, having
graduated from Harvard College and Harvard Law School with
honors. After law school, he clerked for Judge Laurence
Silberman on the U.S. Court of Appeals for the D.C. Circuit and
then for Justice Sandra Day O'Connor on the Supreme Court. Upon
completion of these esteemed clerkships, he served as associate
special counsel for the Senate Special Committee to Investigate
Whitewater. Then in 1996, he became a professor at the
Georgetown Law Center, where he received tenure last year. All
great accomplishments.
Mr. Dinh's academic interests have incredible breadth. He
has written on structural constitutional issues and separation
of powers as well as on international business law and
development. He also has a great deal of experience with
administrative law, which will assist him with the
responsibilities of this position.
In addition to his academic work, Mr. Dinh has provided
insightful commentary on many of the difficult social issues of
our time. Mr. Dinh will be a tremendous asset to the Office of
Policy Development and will lead the office with the
intelligence and good judgment for which he is known.
So it is a pleasure to welcome both of you and your
families here today, and we will now turn to the Democratic
leader on the Committee, Senator Leahy.
Senator Leahy. Mr. Chairman, I understand that
Representative Sanchez is going to have a vote in just a few
minutes in the House.
Chairman Hatch. Would you like for her to go forward?
Senator Leahy. I would be happy to have her go forward. In
fact, I think her appearance today speaks volumes about her and
her willingness to go the extra mile to seek to be bipartisan,
especially when you consider how outrageously you were treated
by some in your election to the House. In that, you probably do
not know which way the person you are going to speak about
went, but I think it speaks volumes for you, Representative
Sanchez, and I admire you for being here. I will withhold and
speak after her.
Chairman Hatch. With that gracious concession, let me turn
to Ms. Sanchez. I understand you have a vote within the next 5
minutes.
Representative Sanchez. Yes, actually, the vote is on the
House floor right now.
Chairman Hatch. We will extend this courtesy to you.
PRESENTATION OF VIET DINH, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL FOR LEGAL POLICY BY HON. LORETTA SANCHEZ, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Representative Sanchez. If you do not mind, I have less
than maybe a minute or two. First of all, thank you, Mr.
Chairman and Ranking Member Leahy, for allowing me to come
before you today to introduce to you Viet Dinh. I am here today
because Viet Dinh is a very intelligent young man who, of
course, has been nominated for Assistant Attorney General for
Legal Policy.
First and foremost, I would like to acknowledge that his
parents are here today. They have traveled here from the Los
Angeles area to be with us, Nga Nguyen and Phong Dinh, who is
his father. Would you please stand here?
Chairman Hatch. We certainly welcome both of you here. I
was happy to meet you before this hearing. You are such nice
people.
Representative Sanchez. As you know, Mr. Chairman, I
represent the largest Vietnamese population outside of Vietnam
in the world, and Viet Dinh was born in Votoi, Vietnam, on
February 22, 1969. He is the youngest of seven children, and
his father was a city council member in their hometown back in
Vietnam. He was imprisoned in 1975, and his family needed to
flee the country and was able to flee to Malaysia in 1978,
where they met up with the father. They then came here to
America, and I do hope that Viet will talk to you a little bit
about his experience fleeing in a boat.
His family first came to Oregon when they came to the
United States. They picked strawberries for a living, and then
they were eventually able to come down to Southern California,
to Fullerton, California, in Orange County. Dinh enrolled in
Fullerton High School, and, of course, he went on to Harvard
Law School and completed graduation, being a graduate of the
law school there.
I am sure that you will have many questions for him today,
but I am pleased to introduce him in a very bipartisan manner
from Orange County, California.
Thank you.
Chairman Hatch. Thank you. We respect that, and we
appreciate your taking the time to come over. I know you have
that vote, so we will excuse you at this time. Thank you for
taking the time.
Representative Sanchez. Thank you.
Chairman Hatch. I am sure Mr. Dinh and his family
appreciate it very much.
We will turn to the Democratic leader on the Committee, and
then I intend to turn to Senator Domenici as soon as you are
through.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Mr. Chairman, I join with you in welcoming
the nominees and their families and friends to what is now the
fourth confirmation hearing of this Congress, two very
important nominations: the Assistant Attorney General in charge
of the Criminal Division, and the Assistant Attorney General
for the Office of Policy Development.
While we consider these current nominations, we should note
that the many dedicated employees of the Department of Justice,
thousands of them, continue to work, to do their job, to serve
the public, as they always have. And I would note that it is
the administration, not you, Mr. Chairman, nor I, who called
upon United States attorneys, who serve as the front line for
our Federal law enforcement efforts, to resign, for most of
them to resign in advance of a single nomination to head those
important offices around the country. I commend the Chairman
for his ambitious schedule, his weekly proceedings on Justice
Department nominations.
Somebody has an important phone call. I will hold if they
want to take it.
We have moved very, very quickly. We are proceeding today
with the nomination even though the usual pile of background
materials of the nominee continued to be supplemented through
yesterday. We have had Professor Dinh's questionnaire for less
than 2 weeks. In the meantime, it has been supplemented by a
correction letter, and then by a large binder supplementing the
five binders of material that accompanied his questionnaire.
Then we were informed of a number of missing amicus briefs
written by the nominee, easy to overlook, perhaps, but one was
in the case of Bush v. Gore that had inadvertently been
overlooked, and only yesterday yet another supplement to his
questionnaire arrived listing additional overlooked appearances
by the nominee.
Now, I am eager to help the administration staff the
Justice Department. As you recall, we moved within about 1 week
of Attorney General Ashcroft's hearing and voted him on the
floor within 24 hours, 48 hours, something like that, of
actually receiving the papers on him. So I want to help, but I
think we should not be scheduling hearings for nominees whose
papers are only just being received. These papers the Senators
have not had a chance to read.
I recall by way of contrast the recriminations and delay
that accompanied the slightest perceived problems with the
timely production of materials by the former President's
nominees. Take, for example, the delays and opposition to the
tentative nomination of Margaret Morrow when she failed to
provide materials from a Bar magazine column. It went on for
months. In fact, we even had one Senator asking if she would
tell how she had voted on secret ballots on California
elections before they would go forward.
But I thank the members of the Committee for their
cooperation and the effort they are making to proceed with this
hearing today. I would hope the Chairman would take these
matters into account and accord Senators more than the normal
week we have usually allowed for the submission of written
questions after the conclusion of the hearing and testimony.
I know that Michael Chertoff is a well-known figure here on
Capitol Hill. Many will recognize Mr. Chertoff from his time
serving as chief counsel for Senator D'Amato's Whitewater
investigation of President Clinton and Mrs. Clinton and others.
Through this hearing, we will get the opportunity to learn of
his academic record, his clerkship for Supreme Court Justice
William Brennan--who was a friend of both of ours, Mr.
Chairman--his service as a Federal prosecutor in New Jersey,
and his private practice of law.
Professor Viet Dinh teaches at Georgetown University Law
Center, as does my former chief counsel and former chief of
staff John Podesta. He, too, spent time on Capitol Hill serving
as an associate counsel to the Whitewater investigation and
telling the Republicans how they should move forward on the
impeachment of President Clinton.
One of the major responsibilities of the Office of Policy
Development at the Department of Justice, which Professor Dinh
has been nominated to head, is the evaluation of the
qualifications and fitness of candidates for the Federal
judiciary. Many of us have great interest in that, and so I
would look forward to inquiring about his plans for judicial
nomination and his qualification.
I have a much longer statement, but, Mr. Chairman, I know
you want to get moving forward, and I will put the rest of it
in the record with your permission.
[The prepared statement of Senator Leahy follows:]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
I join with the Chairman in welcoming the nominees and their
families and friends to the fourth confirmation hearing of this
Congress. Again, this morning we proceed on two important nominations.
This morning we consider the nominees to be the Assistant Attorney
General in charge of the Criminal Division and the Assistant Attorney
General for the Office of Policy Development at the Department of
Justice.
Early this year we proceeded with hearings on the nomination of
Attorney General Ashcroft even before the nomination was received from
the President. We debated and voted on that nomination in Committee
within a day of its receipt by the Senate from the President in late
January. Working together, Democrats and Republicans on this Committee
expedited consideration of that matter so that Senate action was
completed after less than two days of debate on February 2. By
contrast, Attorney General Reno was not confirmed until March of the
first year of the Clinton Administration.
I have spoken to Attorney General Ashcroft about the staffing needs
of the Department of Justice and assured him that I will do my part.
For those with short memories, let us recall that the Deputy Attorney
General and the Solicitor General for the last Administration, Phillip
Heymann and Drew Days, were not confirmed until May 28th that year.
President Clinton's outstanding nominee to head the Antitrust Division,
Anne Bingaman, was not confirmed until June 16, and his first Assistant
Attorney General for the Office of Legislative Affairs, Sheila Anthony,
was not confirmed until June 30.
President Clinton's Assistant Attorney General heading the Office
of Policy Development was not confirmed until August 2, 95 days after
her nomination, and President Clinton's Assistant Attorney General to
head the Criminal Division was not confirmed until November 20, 74 days
after her nomination. Chairman Biden worked hard with Senator Hatch,
who then served as the Ranking Member, to reach those dates in the late
spring, summer and fall of 1993.
I also recall that the1993 nomination of the distinguished
professor and scholar Walter Dellinger to serve as an Assistant
Attorney General heading the Office of Legal Counsel took six months to
confirm and that we had to overcome a filibuster in the Senate before
we were able to get to a vote. The nomination of Lois Schiffer to serve
as the Assistant Attorney General in charge of the Environment and
Natural Resources Division took eight months before she was confirmed.
Ray Fischer's nomination to be the number three position at the
Department, the Associate Attorney General, was not confirmed for five
months. By the way, I do not believe that President Bush has yet
nominated anyone to serve as the Associate Attorney General, the third
highest ranking position in the Department.
More recently, under the Chairmanship of Senator Hatch, President
Clinton's nomination to head the Civil Division, David Ogden, was held
up for 18 months before he was finally confirmed. Randy Moss, the last
Assistant Attorney General to head the Office of Legal Counsel took 13
months before he was finally confirmed. Glenn Fine, the Inspector
General for the Department took seven months to confirm. Robert Raben,
a House Judiciary Committee staffer who was endorsed by Chairman Hyde,
took five months to confirm as the most recent Assistant Attorney
General in charge of the Office of Legislative Affairs.
Nor do these names include the many fine nominees who never were
accorded a vote and those who never even received a hearing. In
particular, I deeply regret this Committee's and the Senate's treatment
of the nomination of Bill Lann Lee. He was nominated by the President
to serve as the Assistant Attorney General in charge of the Civil
Rights Division in July 1997 and renominated in 1998 and 2000. He never
received a Senate vote in three and one-half years, although he served
admirably in an acting capacity and then as the Assistant Attorney
General pursuant to a recess appointment of the President.
I note this recent history not to urge Democrats to repeat the
tactics and excesses engaged in by Republicans over the course of the
most recent Democratic Administration, but to add context and time
frames against which to consider the progress we are making in staffing
the appointed positions at the Department of Justice.
While we consider the current nominations, the many dedicated
employees at the Department of Justice continue to work, to do their
jobs and to serve the public. I also note that it is the
Administration, and not the Senate, that has called upon United States
Attorneys, who serve as the front line of our federal law enforcement
efforts, to resign in advance of a single nomination to head those
important offices around the country even being received.
I commend the Chairman for his ambitious schedule and his weekly
proceedings on Justice Department nominations. We continue to proceed
within days of our receiving materials on these nominations. Take for
example today's hearing. The Committee is proceeding with a nomination
today even though the usual file of background materials on the nominee
continued to be supplemented through yesterday.
We have had Professor Dinh's questionnaire for less than two weeks.
In the meantime it has been supplemented by a correction letter and a
large binder supplementing the five binders of materials that
accompanied his questionnaire. Then we were informed of a number of
missing amicus briefs written by the nominee, including one in the
well-known case of Bush v. Gore that had inadvertently been omitted
from the materials provided the Committee.
And, only yesterday, yet another supplement to his questionnaire
arrived, listing additional overlooked media appearances by the
nominee. As eager as I am to help the Administration staff the Justice
Department, I do not think that this Committee ought to be scheduling
hearings for nominees whose papers are only just being received and
whose papers Senators have not had an opportunity to review.
I also recall, by way of contrast, the recriminations and delay
that accompanied the slightest perceived problem with the timely
production of materials by a Clinton nominee. Take for example the
delays and opposition that attended the nomination of Margaret Morrow
when she failed to provide materials from a bar magazine column.
I thank all Members of the Committee for their cooperation and the
effort they are making to proceed with this hearing today. I trust the
Chairman will take these matters into account and accord Senators more
than the normal week we have usually allowed for the submission of
written questions after the conclusion of the hearing testimony.
Turning now to the nominees, I note that Michael Chertoff is a
well-known figure here on Capitol Hill. Many will recognize Mr.
Chertoff from his time serving as chief counsel for Senator D'Amato's
Whitewater investigation. Through this hearing we will get the
opportunity to learn of his academic record, his clerkship for Supreme
Court Justice William Brennan, his service as a federal prosecutor in
New Jersey and his private practice of law. We welcome you, Mr.
Chertoff.
Professor Viet Dinh teaches at Georgetown University Law Center.
He, too, spent time on Capitol Hill, serving as an associate counsel to
the Whitewater investigation and giving advice to Republicans on the
impeachment of President Clinton.
One of the major responsibilities of the Office of Policy
Development at the Department of Justice, which Professor Dinh has been
nominated to head, is the evaluation of the qualifications and fitness
of candidates for the federal judiciary. That is a subject on which
many Senators and many American have great interest. I look forward to
inquiring about plans for judicial nominations and your own
qualifications for that position, Professor Dinh.
Chairman Hatch. Well, thank you. We are now in the fifth
month here, and we have one person confirmed down at the
Department of Justice, and then only after a very tough
hearing, which many on our side felt was fairly conducted but,
nevertheless, there were a lot of aspects about it that were
seen as smear tactics by outside groups and others.
Now, Senator Domenici--
Senator Leahy. I do recall at least one member of your side
of the aisle, when I had agreed to your request on witnesses
and procedures there, then on national television called me ``a
criminal and a lawyer''--I mean ``a liar''--maybe he meant the
same thing--
[Laughter.]
Senator Leahy.--for agreeing to your suggestion, Mr.
Chairman. So I seem to be in a position of being damned if I do
and damned if I don't. If I agree with you, your side blasts
me, and if I don't agree with you, your side blasts me. It is
an uncomfortable position for you to be in, uncomfortable for
me. I would point out the Deputy Attorney General and the
Solicitor General for the last administration were not
confirmed until May 28th of that year. Anne Bingaman took until
June 16th, Sheila Anthony not until June 30th, and on and on.
Chairman Hatch. I might add that Ms. Reno was confirmed 1
day after, and we did not have outside witnesses, and we
treated a whole bunch of them that way. We confirmed almost
immediately. They had hearings very quickly, but we will get
into that later.
Senator Leahy. We had outside--
Chairman Hatch. Let's get into that later.
Senator Domenici, we will go to you.
PRESENTATION OF VIET DINH, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL FOR LEGAL POLICY BY HON. PETE V. DOMENICI, A U.S.
SENATOR FROM THE STATE OF NEW
MEXICO
Senator Domenici. Thank you very much. First I want to
thank you for the hearing today. I would like my remarks on
Viet Dinh to be put in the record, if you would, Mr. Chairman.
Chairman Hatch. We would be happy to put it in the record,
and we are honored to have both of you here today, to have U.S.
Senators take time from busy schedules. Both of you are very
busy. Senator Domenici, we understand you are in the middle of
these budget problems and probably the busiest guy on Capitol
Hill.
Senator Domenici. Let me say, this is beyond being busy.
Senator Leahy, it is good to be with you, and to both of you
and those on this Committee that will pass judgment on
nominees.
Let me say it is really hard for me to see a better
situation that depicts the American dream and the ability of
people that start with almost nothing to achieve high things.
Who would have thought that 23 years ago, the nominee was in a
small fishing boat, just 23 years ago, out on the waters,
having escaped from Vietnam, and he was there with a number of
other Vietnamese but without his father, who had been put in
jail because he had been a council person in Vietnam? And he is
there with his mother and his siblings and other Vietnamese
people, and the story should just briefly go to a very
fortunate thing that he eventually ended up with his siblings
and mother in the United States. It was a long time before the
father came, but in the meantime, the family stuck together,
and guess what? One of those in those boats 23 years ago, to
wit Viet Dinh, has since that time graduated from Harvard with
a magna cum laude undergrad, went to law school there and
graduated magna cum laude, and today is a full professor of
constitutional law at Georgetown University.
Now, if there was nothing else in between, it would seem
that we would be here in the Senate very interested in
expediting this nominee and laying claim to a great American
success story. If you are looking for diversity of
appointments, with qualifications second to no one, you have
got one. You will have a Vietnamese, a scholar, who just 23
years ago was a young man out on a boat at sea, who could just
have well have drowned and we never would have heard from him.
But because of loving family around him, they eventually ended
up American citizens, he, his siblings, and his mother.
Since then, people looking would be saying what a marvelous
young man, what a great success story. That is not all he has
done to qualify him. He has worked for people in the judicial
system who are in high, high positions in our Government who
had to do very, very important legal work, for a Supreme Court
judge, a circuit judge, while in the meantime working here on
the Hill for a few years. And today, a full-time professor at
Georgetown. About past records and his history, all I know is
that he is exemplary in all respects, an example to those of us
who have been more fortunate to have been either born here or
third generation here or, like Patrick Leahy and I, at least
half of his is Italian, and he is not very far away from the
immigrants that came, in my case two immigrants.
Senator Leahy. I was waiting to see how long that was going
to take for Pete to mention that.
[Laughter.]
Senator Domenici. I do have trouble when I tell our friends
that Leahy is Italian. They say, ``Does he spell it L-e-h-i?''
And I say, ``No, no, no.''
Senator Leahy. But what Senator Domenici does, if he really
needs my vote on something, he calls my uncle in Italy and
tells him to get on my case.
Senator Domenici. I do not know where he is because I lost
track of him, but I will call him this week about this
nomination.
[Laughter.]
Senator Domenici. If you would help by sending the phone
number or if your wife would, it would help.
I want to close by saying I am hopeful that we will see him
in the halls of Congress again, but I hope he will be
testifying here before us as the OPD for the Justice
Department. He will do every employee there justice, and his
fairness and judicial temperament and knowledge of the law will
serve our country very, very well.
Thank you for giving me a few moments. I appreciate it.
Chairman Hatch. Well, thank you, Senator Domenici. I have
listened to a lot of recommendations on this Committee through
the years. I have never heard a better one than you have just
given from a person who is any more respected than you. We are
very, very grateful that you took time from your schedule.
Senator Domenici. Thank you very much.
Chairman Hatch. We are going to release you so you can go
about your busy schedule.
Senator Domenici. Good to be here with you.
Thank you, Senator. We really appreciate that, and it is an
excellent statement on behalf of somebody from a different
party, and I appreciate it very much.
[The prepared statement of Senator Domenici follows:]
Statement of Hon. Pete V. Domenici, a U.S. Senator from the State of
New Mexico
Mr Chairman and distinguished members of this Committee.
I am delighted to present Viet Dinh, the President's nominee to be
Assistant Attorney General the Office of Policy Development. Professor
Dinh is not a New Mexican. Despite that failing, I appear on his behalf
because I have had the pleasure of knowing him both professionally and
personally over the past several years.?
Professor Dinh's journey to this hearing began 23-years ago on a
small fishing boat off the coast of Vietnam. For 12 days, the ten-year-
old Viet and 84 others fought storms hunger and gunfire as their boat
drifted throughout the South China Sea. Fortunately, Viet, his mother,
and six siblings, reached a refugee camp after coming ashore in
Malaysia. After being admitted the United States, Viet's family arrived
in Oregon and later moved to California, where Viet became a U.S.
citizen.
Those early years presented many challenges for Viet and his
family. They had little money and worked long hours in the berry
fields. Moreover, Viet's father had been incarcerated in Vietnam
because of his role as a city councilman. It was not until 1983 that
they were finally reunited after his father's successful escape from
Vietnam.
Despite this tumultuous beginning, Dinh persevered. More than that-
he excelled. Perhaps these early obstacles hardened Viet's resolve and
fueled his rapid ascent through the legal profession.
Viet graduated magna cum laude from both Harvard College and
Harvard Law School, where he was a Class Marshal and a Olin Research
Fellow in Law and Economics. He served as a law clerk to Judge Laurence
H. Silberman of the U.S. Court Appeals for the D.C. Circuit and to U.S.
Supreme Court Justice Sandra Day O'Connor.
Shortly after Viet completed his Supreme Court clerkship, he came
to work for the U.S. Senate, where I had the opportunity to work with
him for the first time. He quickly demonstrated his outstanding legal
ability, superb professional judgment, and fine character.
Professor Dinh's record of achievement continued in academia. Viet
currently is a professor of law at Georgetown University, where he is
the Deputy Director of the Asian Law and Policy Studies Program. In
addition to his expertise in constitutional law, Professor Dinh is
accomplished in corporations law and international law. He has served
as counsel to the Special Master mediating lawsuits by Holocaust
victims against German and Austrian banks.
Since he left the Senate, I have called on him from time to time
for counsel on constitutional issues. On each occasion, Viet exhibited
a comprehensive knowledge of the law and extraordinary energy.
In closing, Mr. Chairman, I believe that Professor Dinh's
character, along with his distinguished academic and professional
accomplishments, make him uniquely qualified to serve in the Department
of Justice. Thus, it is with great pleasure that I offer Professor.
Dinh my highest recommendation for confirmation as Assistant Attorney
General.
Chairman Hatch. Senator Corzine, we are honored to have you
here as well, and we look forward to hearing your testimony.
PRESENTATION OF MICHAEL CHERTOFF, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL FOR THE CRIMINAL DIVISION BY HON. JON CORZINE,
A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Corzine. Mr. Chairman, I am honored to be here.
Senator Leahy and members of the Committee, this is a terrific
opportunity for me to introduce someone who I believe is
terrific, Michael Chertoff, nominee for Assistant Attorney
General for the Criminal Division.
Mr. Chertoff has served the citizens of New Jersey in a
number of capacities, as well as the Department of Justice and
indeed the Nation, and we will all be fortunate to have his
tremendous skills at the helm of the Criminal Division.
I also speak for Senator Torricelli, who unfortunately
cannot be here today, but he also strongly supports Mr.
Chertoff's nomination.
Chairman Hatch. He did indicate that to me yesterday, and I
appreciate that very much.
Senator Corzine. Mr. Chertoff has impeccable credentials,
not the least of which is being a native New Jerseyan. We like
to see those folks get ahead. He attended Harvard College, then
Harvard Law School, where he was editor of the Law Review. He
served as a Supreme Court law clerk to one of New Jersey's
absolutely finest citizens ever, Justice Brennan. And in both
private practice and public service since then, he has
developed a reputation as a brilliant, tough, fair, and truly
world-class litigator and earned the respect of his peers and
adversaries.
Indeed, one of New Jersey's papers have suggested that he
might be New Jersey's ``lawyer laureate.'' He is a little young
for that. While I should acknowledge that we might not agree on
every issue, I consider Mr. Chertoff to be one of the finest
lawyers my State has to offer, and he will do an outstanding
job.
From 1990 to 1994, Mr. Chertoff served New Jersey
exceptionally well as our U.S. Attorney, where he tackled
organized crime, public corruption, health care fraud, and bank
fraud. Unlike his predecessors, as U.S. Attorney he continued
to try cases himself, and his long hours and unending
commitment to the job and the citizens of New Jersey were
legendary.
He tackled the highest-profile cases in a serious and
thoughtful manner and, despite being one of the youngest U.S.
Attorneys in the Nation, raised the profile and reputation for
excellence of the U.S. Attorney's Office in Newark.
More recently, Mr. Chertoff has played a critical and
important role in helping the State of New Jersey investigate a
very, very difficult issue--racial profiling.
As special counsel to the State Senate Judiciary Committee,
he helped handle the racial profiling concerns with our State
police in an excellent manner. His work was bipartisan and
thoroughly professional, and helped expose the fact that for
too long, our State authorities were aware that statistics
showed minority motorists were being treated unfairly by law
enforcement and yet had ignored the problem.
As this Committee well knows, and as President Bush himself
has stated, racial profiling is a critical issue not just in
New Jersey but across our Nation. And I hope that, working with
Mr. Chertoff and Senator Feingold and a whole other group of
folks, we can work together to address this at the Federal
level.
Mr. Chairman, I know it will be clear to the Committee that
Mr. Chertoff is one of the Nation's most competent and
respected lawyers, with a very distinguished record of public
service and private service. He is a good man. I am pleased to
support his nomination.
Senator Corzine. Thank you very much.
Chairman Hatch. All right. Well, thank you for being here.
We will excuse you.
If I could have the two nominees come forward. If you will
raise you right hands. Do you solemnly swear to tell the truth,
the whole truth, and nothing but the truth, so help you God?
Mr. Chertoff. I do.
Mr. Dinh. I do.
Chairman Hatch. Thank you very much.
Mr. Chertoff, I have known you a long time. I could not
have a higher opinion of an attorney than I do of you, and I
have known some great attorneys in my life. So we will turn to
you first. And, Professor Dinh, I could not have a higher
opinion than I do of you, and I have known a lot of professors.
And what you have come through in your life and what you have
been able to accomplish, really, these things are truly
amazing.
So we will start with Mr. Chertoff, and then we will take
your testimony, and then we will open the floor for questions.
STATEMENT OF MICHAEL CHERTOFF, OF NEW JERSEY, NOMINEE TO BE
ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF
JUSTICE
Mr. Chertoff. Thank you, Mr. Chairman.
Mr. Chairman, Senator Leahy, members of the Committee, I am
pleased to appear before you today at these hearings, and I am
honored that President Bush has nominated me for the position
of Assistant Attorney General of the Criminal Division of the
Department of Justice. Before I give the testimony I have
prepared, I would like to introduce my family. My wife, Meryl,
is here. My daughter, Emily, is here. My son, Philip, was given
the opportunity to come, and after considering that, he said
that he thought he ought to spend the time in school. And I
guess that speaks very well for the school.
Chairman Hatch. I think he is going to follow after his
father and mother.
[Laughter.]
Chairman Hatch. We welcome you, Mrs. Chertoff, and--is it
Emily? Emily, we welcome both of you, and we are so happy to
have you here.
Mr. Chertoff. I wish my parents could be here. They were
present when I was sworn in as United States Attorney. They
have since passed away. I hope and believe that wherever they
are now, they are looking down upon us here.
And, finally, I would like to thank both Senator Corzine
and Senator Torricelli for their support of my nomination.
Contemplating today's proceedings, I was reminded of the
day almost 18 years ago when I first entered service at the
Department of Justice. On that day, in the presence of my
parents, I took the oath as an Assistant United States Attorney
for the Southern District of New York. And in taking that oath,
I began over a decade of service in the company of a superb
group of lawyers and public servants--Federal prosecutors.
At that time, it was customary to present new Assistant
U.S. Attorneys with a certificate that, in part, set forth the
following principle: ``To be an Assistant United State
Attorney...requires commitment to absolute integrity and fair
play; to candor and fairness in dealing with adversaries and
the courts; to careful preparation, not making any assumptions
or leaving anything to chance; and never proceeding in any case
unless convinced of the correctness of one's position or the
guilt of the accused.''
I still have that certificate, and I believe its
exhortation remains the principle that should guide the work of
all Federal prosecutors.
During the 10 and a half years I served as a prosecutor,
including 4 years as United States Attorney for the District of
New Jersey, I had the great fortune to represent the United
States in many settings and many types of criminal cases. In
the Southern District of New York, for example, I was
privileged to lead the prosecution of the bosses and
underbosses who comprised the infamous Commission of La Cosa
Nostra--the so-called Board of Directors of the Mafia in the
United States. That case, which resulted in the conviction of
every defendant for crimes ranging from murder to extortion,
was the product of the effort, ingenuity, and courage of
literally dozens of lawyers, Federal agents, and police
detectives. Prosecutions such as the Commission case
demonstrate the capability of the Department of Justice in the
face of the most implacable and entrenched criminal
enterprises.
When the Senate confirmed me as United States Attorney for
New Jersey in 1991, I was honored with the leadership of one of
the outstanding prosecutorial offices in the country. The
reputation of the U.S. Attorney's Office--inherited from my
predecessors and burnished by my colleagues--was that of a
vigorous, fair, and evenhanded agency of law enforcement.
During my tenure, the office conducted many noteworthy and
successful prosecutions, convicting top-echelon organized crime
and narcotics offenders, imprisoning savings and loan bandits
and securities law violators, and successfully prosecuting
criminals who preyed on the most vulnerable members of our
society.
As we made successful cases against local gang leaders or
worked with community residents on neighborhood policing
initiatives, I was often reminded of the tangible ability that
we had to visibly improve the lives of citizens in all
settings. At the same time, I took pride in the fact that the
lawyers in my office adhered to the rule of law and principle
of fair play in carrying out their work.
In the 7 years since I left Government, I have continued to
participate in the criminal justice process, but from the
standpoint of a private attorney. I have represented both large
corporations and individuals in all manner of criminal cases,
including trials. And I have remained involved in public
service. Several years ago, I was privileged to serve as
special counsel to the Special Committee of the Senate
empaneled to investigate Whitewater and related matters. Also
during the 1990's, I was appointed by a Federal judge to
investigate misconduct within a labor union that was placed
under court supervision. In that capacity, my colleagues and I
successfully obtained the dismissal of dozens of members on
charges of corruption or organized crime association and helped
restore democracy to the union. More recently, I have served as
special counsel to a New Jersey State Senate Committee
examining the issue of racial profiling and how it was handled
by State law enforcement authorities.
As I sit before you today, therefore, I have the benefit of
a wide range of experiences in the criminal justice arena,
covering virtually every type of Federal case, and the
perspectives of a former line prosecutor, United States
Attorney, and defense counsel.
If confirmed, I will be guided in office by the following
principles:
First, the power to investigate and charge criminal conduct
is an awesome power of Government, which must not only be
exercised fairly and impartially, but also must be seen to be
so exercised. Prosecution must be vigorous, but respectful of
constitutional rights. As Justice Sutherland famously said,
prosecutors may strike hard blows, but not foul ones.
Second, we need to keep pace with the evolving, ever more
international and high tech face of crime. Criminals are quick
to exploit faster global communications and finance; we must be
quicker. Organized crime enterprises can take advantage of, or
subvert, weak national police structures; we must foster and
aid those structures. More and more of our National assets take
the form of intellectual property and technology; we must
increase our capacity to protect those assets.
Third, the foundation of law enforcement remains the public
trust. To promote that trust, all members of law enforcement
must respect the rights and needs of victims, coordinate
appropriately with State and local officials and with the
community, and, unquestionably, conduct themselves without a
hint of bias or prejudice.
I am conscious of the great responsibility and authority
reposed in the office for which I have been nominated. If
confirmed, I will carry out this responsibility and exercise
this authority with all the vigor, fairness, and dedication I
can muster.
Thank you.
[The prepared statement and biographical information of Mr.
Chertoff follow:]
Statement of Michael Chertoff, of New Jersey, Nominee to be Assistant
Attorney General, Criminal Division, United States Department of
Justice
Mr. Chairman, Senator Leahy, and other Members of the Committee, I
am pleased to appear before you today at these hearings, and I am
honored that President Bush has nominated me for the position of
Assistant Attorney General for the Criminal Division of the Department
of Justice.
Contemplating today's proceedings, I was reminded of the day almost
eighteen years ago when I first entered service at the Department. On
that day, in the presence of my parents, I took the oath as an
Assistant United States Attorney for the Southern District of New York.
And in taking that oath, I began over a decade of service in the
company of a superb group of lawyers and public servants federal
prosecutors.
At that time, it was customary to present new Assistant U.S.
Attorneys with a certificate that, in part, set forth the following
principle: ``To be an Assistant United States-Attorney . . . requires
commitment to absolute integrity and fair play; to candor and fairness
in dealing with adversaries and the courts; to careful preparation, not
making any assumptions or leaving anything to chance; and never
proceeding in any case unless convinced of the correctness of one's
position or the guilt of the accused.''
I still have that certificate. I believe that its exhortation
remains the principle that should guide the work of federal
prosecutors.
During the 10 \1/2\ years I served as a federal prosecutor-
including 4 years as United States Attorney for the District of New
Jersey--I had the great fortune to represent the United States in many
settings and many types of criminal cases. In the Southern District of
New York, for example, I was privileged to lead the prosecution of the
Bosses and Underbosses who comprised the infamous Commission of La Cosa
Nostra--the ``Board of directors'' of the Mafia in the United States.
That case, which resulted in the conviction of every defendant for
crimes ranging from murder to extortion, was the product of the effort,
ingenuity and courage of literally dozens of lawyers, federal agents
and police detectives. Prosecutions such as the Commission case
demonstrate the capability of the Department of Justice in the face of
the most implacable and entrenched criminal enterprises.
When the Senate confirmed me as United States Attorney for New
Jersey in 1991, I was honored with the leadership of one of the
outstanding prosecutorial offices in the country. The reputation of the
U.S. Attorney's Office--inherited from my predecessors and burnished by
my colleagues--was that of a vigorous, fair and evenhanded agency of
law enforcement. During my tenure, the Office conducted many noteworthy
and successful prosecutions, convicting top echelon organized crime and
narcotics offenders; imprisoning savings and loan bandits and
securities law violators; and successfully prosecuting criminals who
preyed on the most vulnerable members of our society. As we made
successful cases against local gang leaders or worked with community
residents on neighborhood policing initiatives, I was often reminded of
the tangible ability that we had to visibly improve the lives of
citizens in all settings. At the same time, I took pride in the fact
that the lawyers in my office adhered to the rule of law and principle
of fair play in carrying out their work.
In the 7 years since I left government, I have continued to
participate in the criminal justice process, but from the standpoint of
a private attorney. I have represented both large corporations and
individuals in all manner of criminal cases, including trials. And I
have remained involved in public service. Several years ago, I was
privileged to serve a special counsel the Special Committee of the
Senate impaneled to investigate Whitewater and related matters. Also
during the 1990's, I was appointed by a federal judge to investigate
misconduct within a labor union that was placed under court
supervision. In that capacity, my colleagues and I successfully
obtained the dismissal of dozens of members on charges of corruption or
organized crime association, and helped restore democracy to the union.
More recently, I have served as special counsel to a New Jersey State
Senate Committee examining the issue of racial profiling and how it was
handled by state law enforcement authorities.
As I sit before you today, therefore, I have the benefit of a wide
range of experiences in the criminal justice arena, covering virtually
every type of federal case, and the perspectives of a former line
prosecutor, United States Attorney, and defense counsel.
If confirmed, I will be guided in office by the following
principles:
First, the power to investigate and charge criminal conduct is an
awesome power of government, which must not only be exercised fairly
and impartially, but also must be seen to be so exercised. Prosecution
must be vigorous, but respectful of constitutional rights. As Justice
Sutherland famously said, prosecutors may strike hard blows, but not
foul ones.
Second, we need to keep pace with the evolving, every more
international and high tech face of crime. Criminals are quick to
exploit faster global communications and finance; we must be quicker.
Organized crime enterprises can take advantage of, or subvert, weak
national police structures; we must foster and aid those structures.
More and more of our national assets take the form of intellectual
property and technology; we must increase our capacity to protect those
assets.
Third, the foundation of law enforcement remains the public trust.
To promote that trust all members of law enforcement must respect the
rights and needs of victims; coordinate appropriately with state and
local officials and with the community; and, unquestionably, conduct
themselves without a hint of bias or prejudice.
I am conscious of the great responsibility and authority reposed in
the office for which I have been nominated. If confirmed, I will carry
out this responsibility and exercise this authority with all the vigor,
fairness, and dedication I can muster.
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Chairman Hatch. You are welcome. Thank you so much for your
testimony.
Professor Dinh, we will take you.
STATEMENT OF VIET D. DINH, OF THE DISTRICT OF COLUMBIA, NOMINEE
TO BE ASSISTANT ATTORNEY GENERAL FOR LEGAL POLICY, DEPARTMENT
OF JUSTICE
Mr. Dinh. Thank you very much, Mr. Chairman, Senator Leahy.
Thank you very much for having me here today, and I really do
sincerely apologize to you and to your staff for any
inconvenience that my submission of my voluminous paper trail
may have caused you. The oversights were truly inadvertent.
I also want to thank Congresswoman Sanchez for introducing
me and Senator Domenici for those moving words of support. I
know that Congresswoman Sanchez had recognized my parents, but
I would like to take the opportunity to introduce them again,
because they really are the heroes of that story that Senator
Domenici said. My parents are here: my father, Dinh Hong Phong,
and my mother, Nguyen Thi Nga. Thank you so much.
Chairman Hatch. We are so happy to have you here, and we
are honored to have you in our presence.
Mr. Dinh. With your permission, I would like to start by
telling you a little bit about the reason why I consider them
the heroes, not only in my life but in the story that Senator
Domenici has told.
My father was a government official in the Government of
South Vietnam. When the war ended in 1975, he was imprisoned,
but in a re-education camp for 3 years. He escaped from that
camp in the morning of June 1978, and he lived as a fugitive in
that country for several years before he was finally able to
escape that country. After 25 unsuccessful attempts, he was
finally able to find freedom here in America in 1983.
At the same time that my father escaped from the camp, my
mother took us, her children, simultaneously onto a small boat
to find freedom from Vietnam. After 12 days drifting at sea,
you could imagine our joy and absolute elation when we finally
saw land in a harbor in Malaysia. But instead of encountering a
warm welcome to freedom, what we encountered was a hail of
bullets fired at us in warning, forcing us back out to
international waters.
Our boat was not seaworthy for another sea voyage over to
Singapore, probably our nearest port, so in the middle of the
night, my mother decided that we should turn back into the
beach, into the deserted beach in the middle of the night. And
so as the boat beached onto the shore and we all swam to the
shore, I turned back and there alone on the boat was my mother
wielding an axe that was almost as tall as she was. She was
using that axe in order to put a hole in the side of the boat
to sink it so that the authorities would not be able to force
us back on in the morning. That image of my mother destroying
our last link to Vietnam really stands in my mind to this day
as to the incredible courage she possesses, but also the
incredible lengths to which my parents, like so many other
people, have gone to in order to find that promise of freedom
and opportunity, a promise that so many people have lost their
lives in order to attain and so many Americans have given up
their lives to protect.
It is that belief in that promise of opportunity and
freedom that has led me to devote my life to one living in the
law, which has been so aptly described as ``a system of wise
restraints that set men free.''
My academic interest, while, as Senator Hatch noted, has
been varying and broad, has all centered on a common theme;
that is, I have been interested in studying the institutions
and mechanisms of governance, those wise restraints that set us
free.
I am very grateful to the President and the Attorney
General for this opportunity for me to repay the debt of
opportunity that my family owes this great country of ours and
for me to have a small hand in helping to think about and work
on those wise restraints that set us free.
As I contemplate the position to which I am nominated, I
was thinking about how I would approach the job if I am
confirmed by this Committee and by the Senate. And to me, it
seems to me that if I am confirmed as the Assistant Attorney
General for Legal Policy, I will be guided by two abiding
principles that to me serve as the foundation of this promise
of opportunity and freedom in our country.
First, America makes that promise to all her citizens and
that all of her citizens, all Americans, should enjoy the equal
protection of the law. I will work to ensure that the
privileges and burdens of law are accorded equally. Invidious
discrimination affects me personally as a Vietnamese American
and offends me morally as an American. And all Americans--
regardless of race, class, sex, religion, socioeconomic status,
or any other status--should enjoy the security that comes with
the faithful and vigorous execution of the law. Such personal
security is essential for individual freedom to flourish.
Second, governmental power should be exercised only
according to legitimate authority. The Department has the
tremendous responsibility to enforce the laws of the United
States. It must discharge that responsibility faithfully and
vigorously. But at the same time, the Department must make sure
that it acts only when it may and not simply because it can,
that government actions are based not on raw power but on
legitimate constitutional and legislative authority. Such
respect for law fosters individual liberty and freedom from
arbitrary governmental coercion.
Senators, I have personally experienced government that
does not work, where law is non-existent and power exercised by
arbitrary whim, by caprice, by personal will. That experience
teaches me not to take our system of laws for granted, but to
work constantly toward its improvement. I hope I will have the
opportunity to work with you in that common endeavor, to listen
to your concerns and those of others, and to find common ground
among diverse viewpoints.
This Committee has a proud history of working to improve
our legal system to meet new and constant challenge, and if
confirmed, I promise to help you in any way I can to build on
that tradition.
Thank you very much.
[The prepared statement and biographical information of Mr.
Dinh follow:]
Statment of Viet D. Dinh, Nominee to be Assistant Attorney General for
Legal Policy
Mr. Chairman, Senator Leahy, and Members of the Committee,
Thank you very much for having me here today, and for taking time
to meet with me personally over the past week. It is an honor to appear
before you.
With your permission, I would like to share the honor by
introducing my father, Phong Dinh, and my mother, Nga Nguyen. Without
their many sacrifices, I would not be before you today, so I would like
to tell you a little about my parents.
My father was an official in the government of the Republic of
Vietnam (South Vietnam). After the communist takeover in 1975, he was
imprisoned in a reeducation camp. In 1978, he escaped from the camp and
lived as a fugitive for several years in Vietnam. Finally, in 1983,
after 25 attempts, he successfully escaped to find freedom here in
America.
Simultaneous with my father's escape from the reeducation camp, my
mother took her children onto a small boat with 85 other persons. After
twelve days at sea, many of them drifting without food or water, we
entered a harbor in Malaysia. Instead of a welcome to freedom, however,
we encountered what Senator Kennedy has aptly described as ``compassion
fatigue.'' A patrol boat fired warning shots at us, forcing the boat
back out to international waters. Because our boat could not have
survived another sea voyage, we turned back to a deserted beach after
nightfall. After swimming to shore, I looked back and saw my mother.
She alone was still on the boat, trying to put a hole in it, to sink it
so that we could not be forced back on. That image remains vivid in my
mind, speaking to the lengths to which my parents, like so many other
Americans, have gone to seek the American promise of opportunity and
freedom.
As a ten-year-old child in the refugee camp and even after our
family landed in Oregon on Thanksgiving Day, 1978, in my wildest dreams
I could not have foreseen the opportunities that this country has given
our family. Even then, however, I knew the value of America's promise
of freedom-a promise that so many people have risked their lives to
attain and so many Americans have lost their lives to protect.
Belief in this promise is why I have chosen a life in the law,
``the system of wise restraints that set men free.'' My interests in
the different doctrinal areas of constitutional, international, and
corporations law stem from the same source, my desire to study the
institutions and mechanisms of governance, the wise restraints that
make us free.
I am grateful to President Bush and Attorney General Ashcroft for
the chance to repay the debt of opportunity I owe to this country and
her people. I am humbled to have been nominated to be Assistant
Attorney General for Legal Policy.
If confirmed, I will formulate and implement legal policy for the
Department of Justice and the Administration. In doing so, I will be
guided by two principles that, to me, serve as the foundation for
America's promise of freedom.
First, America makes that promise to all, and every American is
entitled to the equal protection of the law. I am committed to working
to ensure that the privileges and burdens of the law are accorded
equally. Invidious discrimination affects me personally as a Vietnamese
American and offends me morally as an American. All Americans-
regardless of race, religion, sex, socioeconomic status, or any other
status-should enjoy the security that comes with the faithful and
vigorous execution of the laws. Such personal security is essential for
individual freedom to flourish.
Second, governmental power should be exercised only according to
legitimate authority. The Department of Justice has the tremendous
responsibility to enforce the laws of the United States. It must
discharge that responsibility faithfully and vigorously so that all
citizens receive full protection of the law. But, at the same time, the
Department must ensure that it acts not because it can, but only when
it may-that governmental actions are based not on unfettered power, but
on legitimate constitutional and legislative authority. Such respect
for law fosters individual liberty, freedom from the specter of
arbitrary governmental coercion.
I have personally experienced government that does not work--where
law is nonexistent and power exercised by arbitrary whim. That
experience teaches me not to take our system of laws for granted, but
to work constantly toward its improvement. I hope I will have the
opportunity to work with you in that common endeavor, to listen to your
concerns and those of others, and to find common ground among diverse
viewpoints. If confirmed, I will be your partner in shaping our
country's legal policy to meet new and constant challenges.
Thank you.
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Chairman Hatch. Thank you, Professor. I am so impressed
with both of you, and I know both of you well, and I really
commend this administration for picking each of you for your
respective positions. I am very grateful to President Bush and
others. I think you are going to bring a dimension to the
Justice Department that I think it sorely needs at this time,
so I am very grateful to have both of you here.
I think I will turn to Senator Leahy and let him begin the
questions.
Senator Leahy. You go ahead, Mr. Chairman.
Chairman Hatch. No, you go ahead. I am happy to do that.
Senator Leahy. Mr. Chertoff, I just want to make sure I
have got the times of the time you were U.S. Attorney. You were
appointed by the 41st President, President Bush, in 1990. Is
that correct?
Mr. Chertoff. Actually, Senator, I was a court-appointed
U.S. Attorney in 1990. I was actually nominated--I was actually
confirmed in 1991.
Senator Leahy. In?
Mr. Chertoff. I was confirmed in 1991.
Senator Leahy. And then President Clinton, after his
election, kept you there until April 1994?
Mr. Chertoff. That's correct.
Senator Leahy. Now, I think probably--I know you are well
known in New Jersey for your work there, but I think you are
best known to the country as the special counsel to the U.S.
Senate Whitewater Committee, one of the first and best known of
what some would say the anti-Clinton investigations that was
chaired by former Senator Alfonse D'Amato. It was on the news
most nights, good shots of you there. And I, of course, was
pleased to see the news media would carry somebody with what I
considered an appropriate hairline.
But, on the other hand, of course, there were those who
felt both you, Senator D'Amato, and the investigation were of a
very partisan and political nature. I am not saying anything
differently than I have said to my friend Al D'Amato, who is a
friend of mine. And because of that, some will see you as a
partisan political choice, named as a reward to your party.
And as you have heard, even some Members of Congress have
made that claim, so I want to give you a chance to refer to
that so you can speak about it, being someone who would uphold
the law and make fair decisions about prosecutions brought by
the Federal Government. As you know, I, like most other former
prosecutors in the Senate, feel prosecution should be brought
irrespective of one's political party, but based on the facts.
So, Mr. Chertoff, here is your chance. You have heard some
of these complaints, and I thought I would give you a chance to
give your side.
Mr. Chertoff. Thank you, Senator, and I appreciate the
opportunity to address this.
As you know, Senator, I was retained by the majority of the
Committee--actually, I think I began as minority counsel when
the Banking Committee did the investigation, and then was asked
to come back as majority counsel when the Committee was
constituted. And I have to say it was a privilege to serve the
Senate as a lawyer and to work with both the members on both
sides and the staff on both sides in what was a very
challenging and interesting matter. I understand people have
different views of it. I have very fond recollections of my
time working here.
That being said, the job for which I have been nominated is
one which is entirely different in character. If confirmed, the
position that I would assume would be that of a Federal
prosecutor seeking to enforce the law. I am absolutely
committed, if confirmed, to having nothing whatsoever to do
with anything political other than voting. And I would say,
Senator, that those who are familiar with my service as a
Federal prosecutor in the past, as both an Assistant U.S.
Attorney and as United States Attorney, will see that that was
my policy and my practice and my commitment back then.
During the years I was a prosecutor, I had nothing
whatsoever to do with politics. My office, the office I had
working with and the office I led, was evenhanded and fair. I
took no account of partisanship or politics in any of the
decisions that were made. And I made it an article of faith,
which I communicated to the people on my staff and which I
would communicate to the people in the Division if I were
confirmed, that politics has no place in enforcement of the
law. There is no more awesome power, there is no more sacred
trust than enforcing the criminal laws. And that has to be
something that is above and beyond any partisan or political
considerations.
So you absolutely have my pledge that, if confirmed, I will
continue with that principle as I, in fact, conducted myself
when I was United States Attorney in New Jersey.
Senator Leahy. Let me ask your opinion on one thing because
you have been involved in Senate investigations. In the past
number of years, we seem to have spent more time investigating
than legislating. One of the things that bothered me is that a
number of lower-level staffers get called up here, sometimes
spend days preparing for something, and then basically are
dismissed or asked nominal questions. They are working on
lower-level Government salaries, but they could spend darn near
a year's salary just on legal fees, sometimes in what seems to
be almost capricious ways, other times serious ones.
But there are a number of us on both sides of the aisle who
have expressed concern about line attorneys like the Department
of Justice being called. Now, I suspect you did in your office
as U.S. Attorney the same thing that most prosecutors do on a
close case. You will have some very key attorneys come in and
have one say, look, I want you to give me the best case for the
defendant, the other one says I want you to give the best case
for the Government.
Now, obviously later on--I mean, you have to come for
confirmation, you are before the Senate and all that. But later
on, somebody could call in those who gave the case for the
defendant and say, But didn't you argue that--whatever, that
they might be--or vice versa, depending--in other words, take
the team that took the position different than what you
ultimately decided on, which happened a great deal up here.
Somebody would come up when there had been this A team and B
team, and a lot was made of the testimony of those who were on
whatever team on a close call, it came out differently than the
person making--they had to make the final call.
How do you feel about having line attorneys being called or
those who are not in a Senate-confirmed position to testify
before Congressional Committees?
Mr. Chertoff. Well, Senator, I am familiar with this issue
from a variety of standpoints, having been both a United States
Attorney, obviously, and also having very recently, in fact,
been involved in serving as counsel to a State senate Committee
that looked, among other things, at law enforcement.
I am a firm believer in Congressional oversight. I think
it's important. I don't think wisdom is exclusively lodged in
the executive branch, and I think there's an important
responsibility that the Senate has and the House has to conduct
oversight of the operations of the departments.
At the same time, I think, Senator, obviously, as a former
U.S. Attorney, you have a keen appreciation for the need for
people to have candid discussion, particularly about matters
relating to criminal law, where we deal with issues of
confidentiality and sensitive issues that could compromise
investigations.
I certainly would want to work with Congress in instances
where there is oversight to make sure that as the person
responsible, ultimately as the Presidential appointee, if
confirmed, that I would be able to answer and account for any
questions and lay before Congress whatever is necessary. And I
think that it is possible in any instance that I can envision
to find a way to serve the Congress' needs for oversight while
accommodating, I think, the legitimate concerns of
confidentiality and deliberation, which I know you understand.
Senator Leahy. And understand what I am saying, I mean, Mr.
Chertoff, I am worried--I don't care whether it is a Democratic
administration, Republican administration, or anything else, I
am worried that you are going to have line attorneys who are
going to be very concerned about sending you in your case or
Attorney General Ashcroft in his case, or others, a memo saying
I want you to know my very strong feelings that so-and-so
should be prosecuted, or should not be prosecuted, when they
know ultimately the final decision is going to be made by you
or by the Attorney General. But I am afraid that some may feel
very worried about being that candid if they think they are
someday going to be up here to answer all kinds of questions
and spending on legal fees maybe the next 3 years' tuition for
one of their kids. I realize this is as much a problem for the
Senate, but I would hope that we would get off that.
Now, in 1993, you published an article in the Michigan Law
Review entitled ``Chopping Miranda Down to Size,'' which argued
for a narrow interpretation of the Miranda rule. Given the
Supreme Court's recent reaffirmance of Miranda, and they also
found the statute that Congress had passed overruled Miranda to
be unconstitutional, do you have any problem in now relying on
the Supreme Court's decision even if it varied with your
earlier opinion?
Mr. Chertoff. The Supreme Court has settled the matter. I
never have difficulty following Supreme Court decisions.
Senator Leahy. I had that feeling. I just wanted--now, the
McDade law sort of slipped into the omnibus--or some would call
it ominous--appropriations law at the end of the 105th Congress
to rein in overzealous prosecutors, but what it also has done,
it has impeded important criminal prosecutions. It has chilled
the use of federally authorized investigative techniques. I
introduced a bill that would establish a clear choice of law
room under which Federal prosecutors would be subject to the
ethics rules of the Federal courts in which they practice.
I found, in fact, in one very notable case that
investigations were so hampered because of the McDade law that
some could argue that people lost their lives as a result of
it. You may know the case I mean. I can discuss it with you
privately after if you would like. But do you feel that we
should do something with the legislation? In fact, a number of
members on both sides of the aisle here support under which
Federal prosecutors would be subject to the ethics rules of the
Federal courts in which they practice?
Mr. Chertoff. Well, Senator, first let me say I haven't
seen the precise legislation, but I am very familiar with the
issue.
Senator Leahy. Then maybe I should say it this way: Do you
feel that there has got to be changes in the McDade law first?
Mr. Chertoff. Well, let me say that, of course, I begin
with the principle that we want to have attorneys for the
Government following the highest standards of ethics as
lawyers, and we don't want to have, certainly, any suggestion
that there should be a lower standard.
At the same time, from my own experience, I am well aware
of the fact that issues have arisen in particular States
concerning whether undercover operations can be conducted or
wiretapping can be conducted, and there has been a concern
about a chilling effect upon prosecutions of what could
potentially be very serious crimes, including matters that
affect life and death. And, clearly, that is something which we
have to address.
What I would like to do, if confirmed, is work with the
Attorney General, with the Congress, on fashioning a resolution
that accommodates the concern that people have to make sure
that attorneys are being ethical, but making sure we can also
do the kinds of investigative activities and use the
investigative tools which Congress has given us and which we
need to be able to employ to protect this country.
Senator Leahy. Thank you. I will wait until my next round.
Chairman Hatch. Well, thank you, Senator Leahy.
We will turn to Senator Specter, who is chairing a hearing,
so I am going to accommodate him right now.
Senator Specter. Thank you very much, Mr. Chairman. I
regret that I can only stay a short time because I am chairing
the hearing on breast cancer on the Subcommittee of Labor,
Health, Human Services for Appropriations. I thank both of you
gentlemen for coming by to see me yesterday. We only had a
brief meeting, but I appreciated the opportunity to talk to
both of you.
I note you both bring extraordinary records to these
positions: Mr. Chertoff, magna cum laude from Harvard College
in 1975 and magna cum laude from Harvard Law School in 1978;
and, Mr. Dinh, magna cum laude from Harvard College in 1990 and
magna cum laude from Harvard Law School in 1993.
I have two observations. I wonder why neither of you went
to Yale.
Chairman Hatch. It is a little scary, you know.
Senator Specter. And I wonder why we are having so much
brain power from one institution. I wonder if that isn't really
risking an undue market share.
Chairman Hatch. I hadn't thought about that. It is a little
scary to have all these Harvardians down here.
Senator Specter. It may be an antitrust issue. I don't
know.
Chairman Hatch. Count on Senator Specter to come up with
very unique twists in the law.
[Laughter.]
Senator Specter. Well, I think academic records are very
important. I have hired more than a few lawyers in my time, and
I think that is a very solid indication as to your performance.
Mr. Chertoff, a question was raised about having line
attorneys before the Committee, which is something which is
done very, very rarely, and only on a showing of extraordinary
cause. And when the Committee did it last year, it was after
rejecting a personal appeal from the Attorney General. And you
may want to take a look at that matter. That is up to you. But
this Committee, through the Subcommittee which I chair, took a
close look at campaign finance investigations and the issue of
independent counsel, and the head of the Public Integrity
Section testified in this room that he had given a critical
recommendation opposing independent counsel because he thought
it was--I don't know quite what word to use--``stupid,''
``bad,'' ``inadvertent''--inappropriate law.
And I would like you to take a look at that, and I would
like your view as to the appropriate range of discretion for a
key member of the Justice Department to not enforce the law
because he/she doesn't agree with it. And I expressed myself as
being very offended by that position. The individual said that
Congress didn't understand the law when they passed it. He made
an exception for me because I was a former prosecutor and had a
pretty good academic record like you men do.
But I think that is a very serious matter, and when
Congress passes a law, we expect it to be observed, just as
your observance, Mr. Chertoff, of the Miranda rule, which is
another very complex subject.
I had a chance to talk to you briefly yesterday, Mr.
Chertoff, about the issue of criminal prosecutions for
commercial conduct where there is conscious disregard of the
safety of others resulting in death, came into sharp focus last
year in the Ford/Firestone tire issue, and reckless disregard
for the safety of others is the equivalent of malice, and where
death results, can support a conviction for murder in the
second degree at common law and under State statutory
provisions.
I would like you to take a look at that in your work. Part
of the legislation which I introduced on Ford/Firestone was
incorporated into the final bill. And we have seen many
manufacturers, regrettably, put products into commerce where
they know that death may result. And we talk a lot about
punitive damages, and punitive damages are under a lot of
criticism for being excessive. And I have had a concern about
the ineffectiveness. But if there was a criminal sanction, that
really could be effective and might lead to a re-evaluation as
to punitive damages in a civil context.
The one question I want to ask you, Mr. Chertoff, relates
to programs such as Project Exile in Richmond and Ceasefire in
Philadelphia. We brought a special task force to the Eastern
District back in 1988, and I would like your observations as to
how the Criminal Division can be more effective. Gun control is
a matter of enormous controversy, but nobody disagrees that
there ought to be very tough measures cracking down on
criminals who violate the laws with guns, as, for example, the
armed career criminal bill. I would be interested in your views
on that.
Mr. Chertoff. I would be happy to talk about it, Senator.
Obviously, the Attorney General has expressed to this Committee
and elsewhere his strong commitment and intent to make
enforcement of existing gun laws a priority. I have experience
actually as U.S. Attorney with a similar program. We had
Project Triggerlock in my district. And I found it to be a very
effective way of dealing with the issue of criminals who either
possess guns when they should not or who use guns in the
commission of felonies.
We worked very constructively with State authorities in
selecting cases where we really could take some of the worst
actors off the street and take their guns away and achieve real
deterrence. I think both as chief of the Criminal Division, if
confirmed, and also as one who would work with U.S. Attorneys,
it is critical that we devote as much as we can in terms of
resources and energy to these kinds of programs to get guns and
the threat of gun violence off the streets and out of the hands
of criminals.
Senator Specter. Professor Dinh, you have confirmation for
the Office of Policy Development. If you could pick out just
one policy that you would like to develop, what would it be?
Mr. Dinh. Thank you very much, Senator. I think it is the
opportunity, if confirmed, to work on the improvement of the
administration of justice, to ensure that the protection of the
law is available to all equally. The promise of that security--
Senator Specter. On achieving that, do you think it is
important to confirm Federal judges?
Mr. Dinh. I think that is also very important to confirm
Federal judges.
Senator Specter. I am sorry the panel is so limited to
Republicans, but that word may be transmitted. Go ahead, sir.
Mr. Dinh. I think it is very important for the
administration and also the country to not only have judges
nominated but also confirmed and appointed in order to meet the
workload of the Federal judiciary, yes.
Senator Specter. Thank you very much, Professor Dinh. Thank
you, Mr. Chertoff.
Thank you.
Chairman Hatch. Thank you, Senator Specter.
I am going to turn back to Senator Leahy who has some
additional questions. He is on the phone for right now.
Do you have any questions, Senator Sessions?
Senator Sessions. Yes.
Chairman Hatch. Senator Leahy is here, though. We will turn
back to Senator Leahy for his questions.
Senator Leahy. Thank you, Mr. Chairman. I am trying to
juggle an Appropriations Committee at the same time, and I know
you would much rather I stay here.
Chairman Hatch. No, no. I think Appropriations--
[Laughter.]
Senator Leahy. I was waiting.
Chairman Hatch. No, I would rather have you stay here. I
want to get these people confirmed, and we need you, Senator,
and we are hoping that you will be willing to do that tomorrow.
Senator Leahy. As I said in my opening, we usually give a
week for the submission of any questions and obviously when
some of the--
Chairman Hatch. You will have plenty of time before they
call it up on the floor, and, frankly, these two people are so
well known that I just cannot imagine delaying any further.
Senator Leahy. Mr. Chairman, you and I have discussed the
need for an executive session tomorrow, which we will not--
Chairman Hatch. We are not going to have an executive
session tomorrow. I am willing to maybe have one tonight, if
you want to, because we recess until the call of the Chair. So
I am willing to meet at 6 o'clock tonight. But if not, then we
are going to mark up tomorrow. Everybody understands all this?
If you don't want to vote for the people, you can vote against
them.
Senator Leahy. Mr. Chairman, I think one of the things we
will do is follow the Senate Rules.
Chairman Hatch. That is what I am doing.
Senator Leahy. Of course, you can call a meeting any time
you want, and once you have a quorum, then anybody can move
to--
Chairman Hatch. And you can keep us from having a quorum,
like you did last week. And if you do that, you are going to
have to face the problems to that.
Senator Leahy. Mr. Chairman, I told you last week that two
of the nominees required an executive session to discuss
matters in the--
Chairman Hatch. Then we will meet at 6 tonight. I am
willing to accommodate you.
Senator Leahy. And you did not want to go forward with that
last week, but let's be very serious about this. I was trying
to also protect the names of those we want to go in executive
session about, and I have been trying to work out a time with
you to do that that is realistic.
Chairman Hatch. I am not putting off the markup for one
more day. I will accommodate you. We had two private meetings
on nominees. Every issue has been raised. I don't see any
reason for an executive session, but if you want one, I will
hold one tonight, which is the only way I can do it. And I will
accommodate you. You tell me what time after 6 o'clock you want
to have it, I will have it, or even before 6. But it is
difficult for all of us until 6 o'clock.
Senator Leahy. Mr. Chairman, I don't--
Chairman Hatch. But I will accommodate you.
Senator Leahy. I don't think it is fair--
Chairman Hatch. It is not fair to ask for an executive
session after two closed sessions.
Senator Leahy. Mr. Chairman, it is not fair to talk about
the reason for the executive session because we do--
Chairman Hatch. It is not fair to even raise executive
sessions at this point, in my view, after we had two private
sessions where every issue was raised.
Senator Leahy. Mr. Chairman, we have not had an executive
session about the FBI reports on some of the nominees. We have
a right to have that.
Chairman Hatch. We have had executive--we have had private
sessions, and every Senator is informed and aware who was
there, and every Senator was asked to come.
Senator Leahy. Have we had an executive session on the
background reports on any of the nominees so far this year?
Chairman Hatch. I am willing to have one this evening, if
you want one.
Senator Leahy. Have we had any yet?
Chairman Hatch. We hardly have ever had one in my 25 years
in the Senate.
Senator Leahy. I have been here for--
Chairman Hatch. So I am willing to accommodate you. If you
want one, tell me what time after 6 o'clock, and I will be
here, and we will have an executive session to meet this
technical requirement of yours.
Senator Leahy. Mr. Chairman, you--
Chairman Hatch. But I am not going to fail to go ahead with
the markup tomorrow. If you don't want to show up, that is your
business.
Senator Leahy. Mr. Chairman, you and I jointly requested,
as I recall, on one nominee an executive session, and--
Chairman Hatch. We are not jointly requesting it this time.
I am willing to grant it for you.
Senator Leahy. Maybe that was because it was a nominee of a
Democrat that we--
Chairman Hatch. It had nothing to do with it. I have been
fair to Democrats. You may criticize some people on our side,
but you can't criticize me on that.
Senator Leahy. Mr. Chertoff, the drafts of the report of
the Whitewater Special Committee were given to the press
several days before the report was officially released by the
Committee. Was that improper, especially as it did not include
the report of the Democrats on that Committee?
Mr. Chertoff. Senator, I don't know the circumstances under
which things were provided to the press in that instance. I can
tell you, though, in terms of the work of the Criminal Division
and the work of prosecutors in general--
Senator Leahy. But you recall that thing happening?
Mr. Chertoff. I remember there being press reports
anticipating things that were going to be said in the report.
Senator Leahy. Would it have been proper for members to
release part of the report, the part just of the then-majority
members, the Republican members, and not those of the
Democratic members?
Mr. Chertoff. Senator, again, as I recall the rules at that
time--and I have to say it's been several years--there were
certain matters that were confidential which had been agreed
upon by both sides, which has to be maintained confidentially.
As to how conclusions or parts of reports were released, I
don't know how the press got what they got. I don't remember
what they got.
Senator Leahy. There was never any investigation in the
Committee of that?
Mr. Chertoff. I think the Committee's work concluded within
a matter of days thereafter.
Senator Leahy. One of the ground rules for the Whitewater
Committee's investigation was that all fact finding was to be
conducted jointly by majority and minority Committee
representatives. During the Whitewater Committee investigation,
did you ever have any communications with the Office of
Independent Counsel, Kenneth Starr, to which a member of the
minority staff was not a party?
Mr. Chertoff. Senator, as I recall, the resolution that set
up the Committee mandated that the Committee coordinate with
Mr. Starr's office in terms of the issue of witnesses. And I
recollect there being conversations from time to time either
that were had by the Chairman or by lawyers on the staff
concerning whether particular witnesses would be called or not.
I don't know that minority Senators or counsel were present for
all those conversations, but I think the substance of the
conversations was always relayed.
And, likewise, my recollection--
Senator Leahy. But if they weren't there, would that have
been violative of the Whitewater Committee's rules?
Mr. Chertoff. I don't think so, Senator, because my
recollection is also that the minority also from time to time
had contact with potential witnesses--
Senator Leahy. Did you ever get any evidence from the
Office of the Independent Counsel without the knowledge of a
member of the minority staff?
Mr. Chertoff. Not that I'm aware of.
Senator Leahy. Did you ever have any conversations with
anyone from the Office of the Independent Counsel concerning
witnesses who were to testify before the Whitewater Committee?
Mr. Chertoff. Well, as I said, Senator, my recollection of
the original resolution required the Committee to consult with
the special counsel regarding the issue of witnesses, witness
availability, and the issue of immunity, obviously. So I know
there were conversations that were had by the Chairman and by
attorneys with attorneys from Mr. Starr's staff concerning the
issue of whether witnesses would be made available. And, again,
as I recall, I think that the substance of those communications
were made available to the minority.
And as I have to say, my recollection is the minority also
from time to time had conversations with witnesses and then
would tell us about it after the fact. But there was no
evidence that was conveyed that wasn't made available to both
sides.
Senator Leahy. You realize what I am doing on some of these
questions, like my first question, giving you a chance to
answer some of the things that have been floating out that that
might not get asked otherwise.
Now, Senator Hatch and I had the honor, really, of
representing the Senate and this Committee at the funeral of
Justice Brennan. In fact, I recall that we sat with the
Attorney General and the President and First Lady. I had the
rare pleasure of--it was St. Matthew's Cathedral--of
translating the Latin for everybody, which should make my
Jesuit professors happy, I suppose. And I am sure you found
that experience to be a great one, clerking for Justice
Brennan, especially as we learn more about how he many times
was the one that could mold--be a bridge of the conservatives
and liberals on the Court. And I only raise that because we
have had a couple nominees here who clerked for Justice
Brennan, and some on the other side have said that is a reason
to deny moving forward quickly on their nominations. I am sure
you don't share that.
Mr. Chertoff. I think it was a privilege to clerk for
Justice Brennan, and I think anybody who had that experience
greatly benefited from it.
Senator Leahy. Now, Professor Dinh, you have distinguished
yourself so much academically. Your story is, of course, a
compelling one. Your parents, I am so happy that they can be
here with you. We are actually honored by the presence of your
father and mother in this Committee room. As you know, so many
people of your generation who fled never saw their parents
again, never saw their siblings again. And so you are twice
blessed by having been able to escape and by having your
parents, who strike me as being very distinguished in their own
right to be here with you. And I am sure you realize that truly
is a blessing. It goes beyond anything else that might happen
in your life.
Mr. Dinh. Yes, sir, very, very much so.
Senator Leahy. Now, you have not represented clients in a
trial or in a courtroom. You have been involved in a number of
investigations into President Clinton, former President
Clinton, but not been in a courtroom. But you are going to have
to screen and evaluate candidates for the Federal bench.
Seventy percent of them are going to be candidates to serve as
judges in the trial bench.
How do you do that? I mean, I know there is a merit-based
evaluation system set up by Assistant Attorney General Eleanor
Acheson during the Clinton administration. But, I mean, how do
you do this? Because you don't have experience in the courts.
Nobody is questioning your brilliance or your abilities, but
everybody has been a trial lawyer, Senator Sessions has,
Senator Hatch has, I have, others. That is sort of a unique
experience. How do you go about evaluating especially those who
are going to be on the trial bench?
Mr. Dinh. Senator, let me begin by saying that I understand
that the traditional role of the component has been, with some
exceptions, to be helpful in the judicial selection and
nomination process. I have not had any specific conversations
regarding the role of the component if I should be confirmed,
but to the extent that I am involved in the judicial nomination
process, it seems to me that the fitness for judicial office
can be characterized generally as men and women of deep
personal character, of professional and intellectual
competence, and those who possess a commitment to the rule of
law and an appreciation for the proper role of a judge in a
democratic society.
I recognize from your question my lack of experience in an
actual courtroom. I fully plan, if confirmed, to augment that
lack of experience by relying upon the advice of staff who are
experienced in that process in order to make these types of
evaluations, especially on the trial bench, in order to fit
these--find men and women that fit these criteria.
Senator Leahy. Does that mean talking to these people,
talking with those who have appeared against them in court, or
with them in court?
Mr. Dinh. At minimum, it will be a personal interview, but
it goes beyond that process. If I am confirmed, and to the
extent that I am involved in this process, I anticipate to be
talking to counsel who have worked with a particular prospect,
a particular candidate, both for and against that person in a
counsel capacity, perhaps even talking with judges who have
seen firsthand the demeanor and professional character of these
particular attorneys who may be candidates and from that sense
get a good impression of his or her character and also
professional competence.
Senator Leahy. There is that one part that it is impossible
to define, sort of to paraphrase Justice Potter Stewart in
another case, you know it when you see it, and that is judicial
temperament. There is so much power in the Federal court,
especially at trial level. They can become autocratic. They can
become abusive to attorneys. And they basically can get away
with it.
Now, in the past, there has always been a lot of use of the
professional attorneys and others in the Department of Justice,
those who continue on no matter who is President, to help with
that evaluation. Would you see any reason to discontinue that
practice?
Mr. Dinh. No, Senator. I do believe that our system of
justice is the front door and really the most prominent feature
of the expression of the rule of law in our Government. And a
commitment to that rule of law includes very much the ability
to treat defendants, plaintiffs, and counsel with respect
because such treatment is a reflection not of the judge but
really of the treatment of the system of justice on its
participants. And I very much believe that having that type of
professional competence and more than that, just the ability to
display oneself as the arbiter of justice fairly is quite
important in the process.
Senator Leahy. Mr. Chairman, I have one more question. I
can put the rest in the record.
Chairman Hatch. Why don't you go ahead? I am sure Senator
Sessions will not mind.
Senator Leahy. You said in December 1999 on CNN's
television program ``Burden of Proof'' about judicial nominees,
``It seems to me that the only litmus test that is worth
discussing is the litmus test of competency. Qualifications
regarding judicial philosophy, regarding judicial temperament
and the like, litmus tests don't work.''
So my question is really in parts. One, do you still
believe that? And will you continue the practice as followed in
the last 8 years of not asking a candidate's personal position
or how they would rule on subjects such as affirmative action,
abortion, gun control, or the death penalty? And, last, what is
the litmus test on judicial philosophy that you made reference
to?
Mr. Dinh. Senator, I do still believe that, and, no, I
would not--yes, I will continue that practice of not asking
questions on litmus test because it goes beyond whether or not
they work. I think they are actually quite improper because
there is--Article III independence exists for a reason, in
order to free up the judges to truly be judges rather than to
be policymakers. And that answer really also answers your
second question, that is, the commitment to the rule of law and
an appreciation for the proper role of the judge in our
democratic society so that legislative authority rests with the
elected representatives of the people, and judges are there to
interpret the law, not to make law.
Senator Leahy. That is what you meant by judicial
philosophy?
Mr. Dinh. That is what I meant by commitment to the rule of
law and appreciation for the proper role of a judge in a
democratic society, yes.
Senator Leahy. That is judicial philosophy?
Mr. Dinh. Yes.
Senator Leahy. Thank you.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator.
Senator Sessions, we will turn to you.
Senator Sessions. Thank you, Mr. Chairman.
I would just say, Mr. Chertoff, I agree with Senator
Specter when he discussed the situation with Public Integrity
and independent counsel. I was not comfortable with that. In
fact, the Public Integrity chief, as I recall, did not remember
even having a meeting with the FBI officials that two or three
of them recall. I think it was an unhealthy circumstance. I
think it is important that top officials be as forthcoming and
respectful of Congress as possible.
In McDade, I agree with Senator Leahy that it is a
dangerous situation. It is not healthy that a local bar
association, oftentimes dominated by criminal defense bar, can
declare unethical a prosecutorial or investigative technique
that the Supreme Court has upheld as constitutional. Would you
look at that, would you be willing to look at--
Mr. Chertoff. I will definitely look at that, Senator.
Senator Sessions. It is just an unhealthy thing that I
think has great danger. The U.S. Government cannot allow its
powers to be eroded by an unelected bar association in some
county or State. That is basically what I think McDade did.
I am very interested in the bill that I worked on and we
were able to pass after the death of Senator Paul Coverdell,
the forensic laboratories bill. I am finding, Mr. Chertoff, all
over America that one of the biggest problems in criminal
justice is the inability to get laboratory analysis done in a
prompt timeframe. You understand this as a former United States
Attorney, and we served together, and I have tremendous respect
for your competence and skill. I think being a former United
States Attorney is a tremendous background for chief of
Criminal, because you have had to do in a district what you are
in a way doing for the United States.
But I think that we need work on this problem. It may be
the single greatest problem in law enforcement. In Alabama,
they are telling me that a routine drug analysis sent to the
lab, there is such a backlog that it may be 2 years before they
get it back. That means a case cannot proceed until that
laboratory--you know, you can't indict unless the powder has
been found scientifically to be cocaine.
Are you familiar with this? And all the demands that are
pressing on the Department of Justice for spending, would you
give serious review to the possibility of making this a
priority? Because if we could reduce this, we may do more in a
healthy way without micromanaging State government but just
assisting them to improve justice in America.
Mr. Chertoff. I certainly would, Senator. I am aware, as
you are, because, as you point out, we did serve together, that
what we can do in the lab and with technology is really a
critical element of law enforcement. We have seen, you know,
the wonder of what was accomplished, let's say, in the Oklahoma
City bombing case forensically, and those tools ought to be
available to State and local law enforcement. It is important
for them. It is important for us to have them be able to carry
their load. So I would be very interested in making this issue
a priority issue.
Senator Sessions. Thank you. I just believe that it is
turning out to be that this little bottleneck may be a bigger
problem of delayed justice in America than any other single
event. Maybe Policy could look at that, too, Professor Dinh.
Mr. Dinh. I will.
Senator Sessions. On guns, Senator Specter asked you about
that. I, like you, was a firm believer in Project Triggerlock,
reincarnated as Project Exile in Richmond. I had no doubt that
it worked. I was shocked when I became a member of this body to
see that the previous administration had allowed gun
prosecutions to drop by as much as 40 percent and that they
eviscerated these prosecutions. And we tried at the juvenile
crime bill, Chairman Hatch and others, to add prosecutors to
prosecute more gun cases under existing laws.
I would just say this to you: Based on my experience in the
Department, you don't even need a lot of new money. All you
need to do is send out the word clearly that this
administration expects prosecutions of gun violations to be a
high priority, and I think you will get it. Do you agree with
that, and will you do so?
Mr. Chertoff. I do, Senator. I think the Attorney General
has made that clear. If confirmed, I am going to make that
clear, and I think we're going to want to make sure that that's
communicated to the United States Attorneys in the district so
that they understand that is a very clear mandate.
Senator Sessions. During the course of the Committee that
Senator Specter worked on oversight of the Department of
Justice, there were some espionage cases. I have observed--we
found something that perhaps has always been a problem at the
Department, and that is, the people reviewing the cases at the
highest level for approval or disapproval often have not been
in the courtroom in 20 years, if ever. And they are second-
guessing prosecutors on the front lines.
For example, in one of the most sensitive espionage-type
cases, the local prosecutors, a Rhodes scholar, who had been 8
years in prosecuting, had just recently convicted a Republican
Congressman, wanted to go forward as an espionage case which
could carry up to the death penalty. He was overruled by a line
attorney that I don't think has the instinct for that case that
he did.
Will you look at that and make sure that the people who are
reviewing the cases on the front lines are competent to do that
and have recent experience in litigation?
Mr. Chertoff. Yes, Senator, I will, and I want to say that
I am--again, from my prior experience, I'm acutely aware of the
importance of making sure that on very sensitive matters like
this you have the personal involvement of senior people in the
Department. I mean, I can't think of many things that are more
important to have high-level, experienced appointees looking at
than matters involving espionage and things related to national
security. And so not only will I, if confirmed, work to make
sure that the people who review in an intermediate position are
experienced and take account of the experience of the line
prosecutors, but I will personally get involved appropriately
to make sure that we are making good judgments on those cases.
Senator Sessions. I would appreciate that, and I know your
judgment as an experienced litigator would be valuable in that
circumstance. I would also note, as I think you probably know,
that you can't rely on the departments and agencies to give you
good advice. Oftentimes they just want these cases to go away.
They would rather not have to testify in court as to how they
were breached, their security was breached. It is up to the
Department of Justice to say, no, we are going to proceed, and
we are not going to allow this kind of espionage to continue.
I am glad that you questioned Miranda. I think it is worthy
of being questioned. Your questioning and doubts probably don't
go as far as mine do. But I do think that it is healthy that
you are active and engaged in criminal justice issues.
Mr. Chairman, I won't take any more time.
Chairman Hatch. Thank you so much, Senator.
We will turn to Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman.
Mr. Chertoff, I am sorry we didn't have a chance to get
together yesterday, and I know you made a special effort. I am
just sorry my schedule did not allow it, but I would like to
ask you a couple questions. Thank you both for being before the
Committee today.
Mr. Chertoff, you have said--and, in fact, you have been
recognized in the media as being outspoken on the issue of
racial profiling. And you are, of course, seeking your position
here as Assistant Attorney General for the Criminal Division,
and I would like to just focus for a moment on an aspect of
racial profiling which I think should be taken serious by all
of us.
African Americans represent 12 percent of the U.S.
population and, according to our Drug Enforcement Agency, 13
percent of drug users in America. African-Americans comprise 35
percent of all those arrested for drug possession and 55
percent of those convicted for drug possession. Five times as
many whites use drugs as African-Americans, but African-
Americans comprise the greatest majority of drug offenders sent
to prison. Race appears to be a clear factor, which we cannot
ignore except at our own peril when it comes to the credibility
of our system of justice.
How do you believe that we should go about addressing the
drug problem in America in a way that is not at least open to
the suggestion that it has at least some racial characteristics
involved?
Mr. Chertoff. Well, Senator, let me say at the outset that,
unequivocally, it is my view that racial profiling is not only
wrong but unconstitutional and has no place in law enforcement.
My personal familiarity with this actually comes, as I think
you observed, from my work as counsel to a State senate
Committee in New Jersey which was looking at the issue of drug
interdiction n the turnpike, where there are issues involving
disparities in numbers. It is a complex issue, but it is a very
high priority issue, because it affects not only the civil
rights of the people who are the victims of racial profiling,
but it affects the credibility of all of law enforcement.
I think we need to--when we see disparities in figures, we
need to take a careful look at that and try to understand what
the cause of those disparities are. We need to make sure that
we have no conscious or unconscious biases in the way we are
conducting our investigations.
Unquestionably, everybody benefits when we vigorously
prosecute the war on drugs, and I can tell you from my own
experience, I saw minority communities often suffer greatly
from the drug trade and the impact of that. So I certainly
think it is in all of our common interest to have vigorous
enforcement, but I think when we see disparities that are
significant, we need to look at the underlying cases and try to
understand what accounts for those. And if there are conscious
or unconscious biases, we have to get rid of those. And I am
very committed, obviously, from the standpoint of the Criminal
Division, if confirmed, in working toward that end of making
sure we have an evenhanded and fair application of these laws.
Senator Durbin. And do you believe we should continue to
collect information and statistics concerning the racial
characteristics of those who are arrested, investigated,
charged, convicted, and incarcerated in this country so that we
can assess whether or not there are disparities based on race
or ethnic background?
Mr. Chertoff. I believe, Senator, the President himself has
indicated his strong support for a collection and analysis of
data, and I think the Attorney General has as well, and, of
course, I am very supportive of that.
Senator Durbin. I thank you.
Professor Dinh, I am glad that we had a chance to get
together, and I want to follow up on one aspect of our
conversation concerning the important job which you are seeking
relative to judicial appointments. And as I mentioned to you in
our meeting--and I am sure it comes as no surprise--this is an
item of great interest. As I said to you, many of us feel that
the outcome of the Presidential election in November at least
raised some question as to whether the President has a mandate
to make significant changes in the judiciary that would have an
impact on values and decisions and precedents which have been
in place for many decades.
You are a member of the Federalist Society. We find it
curious on our side of the aisle that President Bush has said
that he no longer wants to rely on the American Bar Association
to do a background check on prospective judges. This was a
tradition that started in a radical era of American politics
known as the Eisenhower Presidency, when President Eisenhower
thought it was reasonable--and I do, too, incidentally--that
the largest bar association in America at least comment on the
worthiness of nominees for the Federal bench.
Could you describe for us your involvement with the
Federalist Society and what you believe this group stands for?
Mr. Dinh. Senator, first of all, thank you very much for
taking the time out of your very busy schedule to meet with me
the other day. It was a very fruitful discussion, and I very
much appreciate the courtesy.
I am a member of the Federalist Society, and I do not know,
quite frankly, what it all stands for. As you asked me during
our meeting whether I have read their statement of principles,
no, I have not. What I know, what it stands for for me, why I
joined the Society, when I first joined the faculty of
Georgetown Law Center, it is a forum for discussion of law and
public policy from both sides, and a number of very prominent
debates and very fruitful debates have been carried out under
the auspices of the Federalist Society throughout the law
schools and the bars of this Nation. That is why I believe that
it serves a very useful function, not only in the discussion of
law and public policy in the public debate, but also in the
pedagogical mission of our law schools, as a number of other
organizations do.
I do hope that given my rather voluminous paper trail of
publications and public speeches that my candidacy and what I
think will be judged upon those statements and publications and
rather not on any one particular membership.
Senator Durbin. I recall your answer, and you have repeated
it here for the sake of the Committee, and I find it
interesting that if you were looking for a forum for debate,
the Federalist Society is a comfortable forum, but apparently
the ACLU is not for a discussion. You have never joined an
organization like the ACLU, have you?
Mr. Dinh. No, I have not, Senator, because I do not join
organizations, with the exception of the American Bar
Association, through my group membership as a faculty member of
the Georgetown Law faculty, that take public positions and
adopt policy statements. And to my knowledge, the Federalist
Society does not take public positions, adopt policy
statements, file amicus briefs, or the like. It is simply a
forum for discussion, as I am also a member of the Council on
Foreign Relations, which is a forum for public discussion on
foreign policy issues in which I am also interested.
Senator Durbin. So is your belief that the Federalist
Society does not have a philosophy, a stated philosophy, when
it comes to, for example, the future course of the Supreme
Court?
Mr. Dinh. No, I do not think it does have a stated
philosophy, to my knowledge. It may very well have. I just
simply do not know. I know that the Society has a very diverse
membership of people who think very critically about these
issues, and I know that I've gotten into many, many
disagreements with members of the Federalist Society on these
kinds of issues. So I do not think that an official policy
would be possible, even if desirable.
Senator Durbin. Where would you put the Federalist Society
on the political spectrum?
Mr. Dinh. You know, I simply do not know. I know that there
are press reports that have attempted to put it in a political
spectrum with respect to other organizations. I myself in my
personal and professional life have been very hesitant to
characterize anybody or any group according to labels simply
because I eschew such labels for myself. So it would not be
appropriate for me to do so for others.
Senator Durbin. And you are not familiar--or are you
familiar, rather, with the term ``Court in exile,'' ``the
Constitution in exile''?
Mr. Dinh. No, sir, I am not.
Senator Durbin. OK. Well, let me say that from what I have
read--and I am not an expert, nor am I a member of the
Federalist Society--they do have a very conservative
philosophy. I don't think they are a debating society. I think
they have an agenda. And it troubles some of us to believe that
the American Bar Association, which has been characterized as
liberal by the conservatives and conservative by the liberals
over the course of its history, is being cast aside by the
White House now when it comes to the judicial process. And,
instead, we find that many people who are associated with the
Federalist Society are now seeking prominent positions in the
administration of justice. I don't think it is a coincidence. I
think it is a conscious decision to move us toward a path that,
frankly, many of us think needs to be questioned, and at least
publicized.
I sincerely hope that if you are indeed confirmed that you
do not become an agent of any political agenda. You have an
extraordinary personal family history. It is just exceptional,
and I think all of us are in awe of what you and your family
has achieved overcoming great odds. I think that you can make a
great contribution to public service, and I hope that you will.
But I hope that it doesn't become an effort for a political
clearinghouse for only those who happen to hew to that line to
be considered as possible nominees to the Federal bench. I
think we do need diversity and moderation and the kind of
excellence and integrity which both parties should seek to make
part of their nomination process.
Thank you, Mr. Chairman. Thank you.
Chairman Hatch. Well, I am pleased that we have had you all
here. I want everybody to know that I am on the board of
advisors of the Federalist Society, and I am darn proud of it.
And I will tell you why: because these aren't just
conservatives, these are top-notch lawyers all over this
country, top-notch law students, who are just sick and tired of
the leftward leanings of our Government and, frankly, wanted to
bring some into balance. The Federalist Society doesn't lobby,
unlike a lot of the groups that we get from the left all the
time. They don't take positions politically. They basically
hold the best forums in America. And in every one of those
conferences, they have had both sides presented, and I know
because I have been one of the lecturers from time to time.
So I get a little tired of--I am not accusing the senior
Senator from Illinois of this, but I get a little tired of some
in the media treating the Federalist Society as a group of
radicals like some that are out there. Frankly, one of the
original advisors to the Federalist Society was Justice Scalia,
who by anybody's measurement is a brilliant lawyer, law
professor, and a brilliant member of the Court, albeit you may
disagree with his philosophy from time to time.
But to make a long story short, I do think we ought to get
rid of character assassination of any organization. But I get a
little tired of some of these attitudes that anything on the
left is just fine, no matter how irresponsible, no matter how
degrading, no matter how mean-spirited they are. And yet you
have a society made up of top-notch lawyers, many of them law
review graduates at their respective schools, who are
practicing law, trying cases all over this country, defending
people, prosecuting people, but who believe that there are
limits to Government.
And they may individually express conservative viewpoints
or moderate to conservative viewpoints or even libertarian
viewpoints from time to time. But the fact of the matter is the
Society itself does not engage in lobbying or the pursuits that
some in the media have seemed to smear them with.
Senator Durbin. Would the Chairman yield?
Chairman Hatch. Sure.
Senator Durbin. First, I would like to commend the Chairman
because I think he has been very forthright in his beliefs and
in what the Federalist Society is all about. That was the
purpose of my question to Professor Dinh, who is a member of--
Chairman Hatch. I don't think there was anything wrong with
your question. I am just saying I want to make it clear,
because I have seen these articles, and, my gosh--
Senator Durbin. If I could finish?
Chairman Hatch. Sure.
Senator Durbin. If I might finish.
Chairman Hatch. Go ahead.
Senator Durbin. Senator Hatch and I come to this business
with different philosophies. That is part of the American
political process. I am not going to disparage those of a
conservative bent, and I hope that he will not disparage those
of a liberal bent or progressive bent. We just happen to see
things differently. But the point I am trying to make here is
that if the Federalist Society is now going to be the filter
for nominations to the Department of Justice as well as
judicial nominations, if that is going to be a standard, then,
for goodness' sakes, I hope that you will come forward, as you
have this morning, and clearly state what your goal is. What is
it that you are seeking to achieve? And if you do so and do it
openly, publicly, that is your right.
Chairman Hatch. And I can tell you categorically that they
are not going to be a filter. I know who the filters are, and
they are in the White House and the Justice Department, as they
were in the Clinton administration. Now, the Clinton
administration wasn't tarred by accusations that People for the
American Way vetted ever judgeship nominations, even though we
know they weighed in rather heavily.
Now, individual members of all societies weigh in heavily
on these judges, not just the Federalist Society. And, heavens
knows, we have got people here who think that the American Bar
Association should be the last word on everything. I happen to
pay attention to their recommendations. I am not going to
ignore anybody's recommendations. I am going to give some
credibility to them and look at them. But they should not have
a formal authoritative role in this process. They aren't
elected to anything. We are the vettors. I heard some people
saying in the media that they should have a right to vet
because they are the most prestigious bar association in the
country. Well, they are the largest, but there are dozens of
bar associations in this country, all of whom have an equal
right to say who should be in this process. And we can't allow
that.
Now, I am not going to allow the Federalist Society to
dictate to this Committee. That isn't the purpose of it. That
isn't what they do. It is a lot of attorneys who basically have
been leading law students, leading attorneys, leading
professors, leading judges in this country, who basically feel
like there are limitations to Government that ought to be
abided by and that they haven't been in some ways.
I find nothing wrong with my colleague from Illinois asking
these questions, because he is, I think, one of the brightest
people in the Senate, and I think very effective. And we are
friends. But I just kind of got upset, not at what you asked or
your questions, but the fact that I have seen these articles
trying to say that, you know, there is some sort of cabal
controlling the judgeship nominations or even Justice
Department nominations down there at the White House.
This is a different White House. President Clinton was not
known for conservative politics. I think anybody who is fair
would admit that. The judges he recommended, I do not think
very many of them would have been recommended by or will be
recommended by President Bush.
There are differences in philosophy. We have to acknowledge
that. But to demean intelligent members of the bar because they
have a different point of view from the far left is, I think,
uncalled for. And I think the media--talk about trying to have
mind control. I think we can use honest, strong ideas from a
wide variety of organizations, from the left to the right. And
I get a little tired of hearing some of our colleagues say we
do not want any right-wingers on the Court. Well, I am sure
there were Republicans that did not want any left-wingers on
the Court. But that is stupid.
The people they are sending up today--I have looked at
every one of them--are highly intelligent, people of great
temperament, people of accomplishment in the law. Many of them
are judges who have already been confirmed by this Committee.
And yet people are saying we do not want any right-wingers,
like everybody that the Clinton administration sent up was a
moderate. Give me a break. We put through 377 Clinton judges
here, five less than the all-time champion, Ronald Reagan. And
he would have had eight more had it not been for Democrat holds
in the Senate. In other words, he would have had three more
than Reagan. And Reagan had a Republican Senate for much of his
tenure, and yet all we have heard is this bad-mouthing of what
went on.
Now, look, my position is that the President, whoever that
President may be, has a great power in the nomination process,
and we must recognize that power as members of this Committee.
And we must confirm these people if they are competent, people
of good temperament, good integrity, well experienced at the
bar, and who are people that should be confirmed. And that was
my position, and I have to say that, yes, we have people on my
side and people on the other side who do not completely agree
with my position. But we have been able to do that for
President Clinton, and I would hope the same courtesies would
be extended to President Bush.
Now, we are not talking about judges here with the two of
you. We are talking about getting the people's Department of
Justice staffed so it can operate efficiently. We are talking
about putting the head of the Criminal Division in there who is
an extremely competent, straight-down-the-middle fair lawyer,
one of the best I have ever seen. And both sides know it. They
may not share the philosophy, myself or people on the left or
people on the far right do. But he is competent and very
capable of doing this.
With regard to Professor Dinh, I would want to help you
just because of your background. But, my gosh, that is not good
enough. You have a tremendous capacity and ability, and we all
know it. And just listening to you here today is enough, I
think, to convince anybody of your qualifications, young though
you may be. And the administration has a right to have these
positions filled.
So I intend to go ahead with the markup tomorrow, and I
will put both of you on that markup. Now, I will warn you,
anybody on this Committee has a right to put you over for a
week, but that is one reason I am putting you on so that if
they want to put you over for a week, they can. And I find no
fault with that if somebody wants to do that.
Now, it has been requested we have an executive session,
just Senators, and I have tried to accommodate the Democrat
side by announcing we will have one at 6 o'clock tonight. I
have been told they cannot come. So let me accommodate again,
but this is the last accommodation I am going to make because I
think if I do not have some cooperation here, then we just have
to go ahead with the markup. I will accommodate my colleagues
on the other side by scheduling an executive session starting
at 9 in the morning.
Now, I have to give up going to the White House to do that.
I am willing to do that in the interest of getting the Justice
Department staffed. But the executive session is going to be
over by 10 o'clock so that we can go into our markup. And I
hope that this will accommodate my friends on the other side. I
think it is bending over backwards to do so. The President has
asked me to be in the White House tomorrow. I am going to tell
the President I cannot be there, because it is more important
to have his nominees to the Department of Justice confirmed.
I believe we have discussed all the problems, but I am
willing to meet and accommodate here. I can remember times when
my side wanted executive sessions after lots of meetings and so
forth, and I talked them out of it. I hope the other side will
talk their people out of it so we can go forward with this
markup. I am getting tired of some of the petty arguments that
we have been going through. But I am willing to accommodate.
So that is where we are. I know a lot of people do not want
to start at 9, but that is the only way I can do it. So we will
recess until tomorrow at 9. We will have a private executive
session prior to the 10 o'clock markup, but the executive
session is going to be over by 10, and then we are going to
mark up these nominees. If people do not want to vote for these
nominees for the Justice Department, they can walk out of the
Committee room and not vote and not exercise their obligation.
If they want to vote no, let them vote no. If they want to vote
aye, they can vote aye. But tomorrow is the day when we vote on
some of these Justice Department nominees, because I cannot--it
is unconscionable to me to be in the fifth month and to not
have anybody but the Attorney General confirmed when we have no
reason not to confirm.
Yes, Senator?
Senator Durbin. Mr. Chairman, I am sorry that Senator Leahy
is not here to comment about your suggestion, but his staff has
indicated to me that Professor Dinh had provided some
supplementary responses to questions as of yesterday, and
Senator Leahy and the staff are reviewing those.
Chairman Hatch. That is fine, and you have until the
markup--until they come up on the floor to raise any issues you
want to. And if you want to put them over a week because of
that, you can do that. I have no problem with that.
Senator Durbin. I hope that you and Senator Leahy can
discuss that. I do not know the particulars, but I was asked to
raise it.
Chairman Hatch. Well, I am trying to meet his needs. I am
trying to accommodate him. I have tried in a variety of ways.
The only way I can do it is this way. And so I am announcing
that that is what I am going to do, and it is totally in trying
to accommodate Senator Leahy when I do not think there is any
reason for having an executive session that delays in any way
the markup tomorrow.
Senator Sessions. Mr. Chairman, we are getting close to 10
percent of the administration's time in office is past. It is
not quite there yet, but it soon will be. We have got the
Attorney General over there, the Deputy Attorney General, who
is uniformly respected by everyone. It is amazing that we
cannot get these officials confirmed. Tying it to an unrelated
matter about judges to, in fact, hamper, actually undermine the
ability of the Department of Justice to function is really
irresponsible, in my view.
I thank you for being determined to move this forward as
best you can.
Chairman Hatch. Well, as Chairman I have to make that
decision, and I am accommodating my colleagues on the other
side, especially Senator Leahy, who has requested it, and that
is what we are going to do. I hope everybody who wants to come
in and talk will be here at 9. The record will remain open for
additional questions.
Now, look, with regard to questions, I think we ought to
get an understanding. Many times during the Clinton
administration the questions, some on our side asked questions
at the last minute and did not have a lot of time to study them
before the markup, but you have that time before the markup,
you have the time before it comes up on the floor. Matters can
be raised. Hearings can be held. There are a lot of things that
can be done.
But my goal here is not to roll over anybody, but to get
our job done and to get the Justice Department up and running
and to let the people's representatives get in there and make
sure the Justice Department is running. I cannot think of more
critical positions than the Deputy who runs the day-to-day
Justice Department. And we are now in the fifth month. I cannot
think of a more critical position than the Solicitor General
who argues for the American people in court. I cannot think of
a more critical position than yours, Mr. Chertoff, the head of
the Criminal Division, with all of the problems that come there
daily. We cannot let this drag anymore.
Now, if there was a real legitimate reason for delaying
like this, requesting repeated delays, I could live with that.
But I cannot live with the delays that we have had requested
when we have had meeting after meeting, and I have tried
accommodation after accommodation.
I just believe this is the best thing I can do, and,
Professor Dinh, they need your brain power down there. They
need you writing, they need you researching, they need you
doing the things that--the Justice Department is a complex
place. And we cannot keep putting these things off. Like the
distinguished Senator from Alabama said, about an eighth of the
Presidency is over, if you count it for 4 years.
So, with that, I hope my colleagues will be pleased that I
am willing to do this, because I do not have to do this. I can
just go ahead with the markup. And I remember the days when
Democrats controlled this Committee and that is what they did.
They did not put up with this type of stuff. But I am willing
to bend over backwards. We are 50-50 in the Senate, 50-50 on
this Committee. I would do it if we were not. But I have
reached a point where I cannot do any better than that, and so
I hope my colleagues will cooperate. I hope they will help me
in this job. I do not have any axes to grind. I just want to
have our country run well and, above all, I want to have the
Justice Department run well because I do not know of an agency
in Government that has more to do with protecting the people
than the Justice Department. And if we do not have leaders
there, we are going to be in real trouble here. And we are in
trouble now, because I understand an awful lot of what is not
being done down there is because they do not have anybody
making decisions other than the Attorney General, who cannot
make them all himself.
So, with that, we will recess until 9 in the morning when
we will have an executive session to hopefully cover these
matters, and then at 10 I am going ahead with the markup.
Senators can vote any way they want to, but we are going to
vote.
With that, we will recess until further notice.
[Whereupon, at 12 p.m., the Committee was adjourned.]
[Questions and answers follow:]
QUESTIONS AND ANSWERS
Responses of Michael Chertoff to questions submitted by Senator
Thurmond
Question 1: Mr. Chertoff, as you know, the Congress created the
Sentencing Guidelines in the Sentencing Reform Act of 1984, us a way to
provide similar punishment for similarly situated defendants. Do you
believe that the Guidelines system is basically sound and that
fundamental changes in the Guidelines are not warranted?
Answer 1: I believe that the Guidelines achieve fairness and
deterrence in sentencing. The Sentencing Reform Act provides for the
Commission to modify or amend the Guidelines in light of reason and
experience. I do not support a fundamental change in the Guidelines.
Question 2: Mr. Chertoff, I am concerned that the purpose of the
Guidelines is being threatened by the increasing trend of sentencing
criminals below the range established in the Guidelines. Just in the
past eight years, the number of downward departures has increased
steadily from 20% to about 35% of cases. I held a hearing last fall in
the Criminal Justice Oversight Subcommittee regarding this growing
problem. Are you concerned about this trend, and if confirmed will
review this issue with the Sentencing Commission?
Answer 2: The purpose of the Guidelines is to channel sentencing
discretion so as to assure similar penalties for similar criminal
behavior and history. An essential element of this approach is to limit
departures so that they do not undercut the careful calibration of the
Guidelines. Thus, while departures are appropriate to account for
unusual or unforeseen circumstances, they should not be used to avoid
the basic structure of the Guidelines. A significant increase in the
percentage of downward departures may suggest that, in some instances,
the departure mechanism has been abused. If confirmed, I intend to work
with the Sentencing Commission to determine the causes for the
increase, and to consider what action is appropriate.
Responses of Michael Chertoff to questions submitted by Senator
Grassley
Question 1: I am deeply concerned with the rampant production and
distribution of methamphetamines. Will you commit to increasing the
Department's resources for the investigation and prosecution of those
who violate federal drug laws?
Answer 1: I personally investigated and prosecuted many narcotics
cases as a federal prosecutor. Based on my experience as a prosecutor,
I agree that the methamphetamine threat is serious. Indeed, the scope
of that threat has increased dramatically, especially in rural areas.
More generally, This is an area where vigorous prosecution can have
significant impact. Accordingly, if confirmed, I will review our
initiatives in this area to insure that we are doing all we can to stem
trafficking in methamphetamine and other illegal drugs.
Question 2: The American people deserve a government characterized
by integrity. The vigorous investigation and prosecution of those
elected and appointed officials who violate the law is essential to
assuring that government operates with integrity. With this in mind,
will you commit to turning the Public Integrity Section into a
legitimate arm of the government that will aggressively investigate and
prosecute criminal misconduct?
Answer 2: As U.S. Attorney for New Jersey for 1990-1994, I treated
prosecution of public corruption as top priority for my office. If
confirmed as head of the Criminal Division, I intend to review all
aspects of the Criminal Division's operations, and to insure that the
Public Integrity Section conducts speedy, aggressive and fair
investigations of criminal conduct by public officials.
Question 3: During the last eight years there has been explosive
growth in the distribution of illegal pornography. This is due in part
to the previous administration's lax enforcement of the Nation's
obscenity and child pornography laws.
Answer 3: I agree that obscenity and child pornography are an
increasing national problem, especially with the unfortunate
availability of this material over the internet.
Question a: Will you make the prosecution of obscenity and child
pornography among the top priorities of the Criminal Division?
Answer a: If confirmed, I will treat prosecution of obscenity and
child pornography as a top priority for the Division.
Question b: Additionally, will you give special consideration to
the appointment of the head of the Child Exploitation and Obscenity
Section of the Criminal Division?
Answer b: As mentioned above, if confirmed 1 intend to review all
aspects of the Criminal Division's operations, including the Child
Exploitation and Obscenity Section. I will pay special attention to
insuring energetic and capable leadership of the Child Exploitation and
Obscenity Section.
Responses of Michael Chertoff to questions submitted by Senator Leahy
Question 1: You report on your questionnaire response that you have
worked for the New Jersey Senate Judiciary Committee. (a) What exactly
did your work advising the N.J. Senate Judiciary Committee as Special
Counsel on investigations into the effectiveness of notification under
the state sex offender notice laws consist of? (b) What exactly did
your work advising the N.J. Senate Judiciary Committee as Special
Counsel on investigation into racial profiling by state police consist
of?
Answer 1(a): In the Spring of 2000, an inmate sex offender was
released by the Department of Corrections into the community without a
designated residence and without adequate prior notice to local law
enforcement authorities as required under state sex offender
notification laws and regulations (including the so-called ``Megan's
Law''). I was asked to serve as special counsel to the state Senate
Judiciary Committee to examine whether this was an Isolated mistake or
evidence of a more widespread problem. Working with others at my law
firm, over a period of weeks we investigated the manner in which the
Department of Corrections complied with the state law governing
notification relating to sex offenders who face release upon the
expiration of their sentences. Our findings revealed that there was a
substantial failure by the Department of Corrections to make timely and
accurate notifications as required by law, and that this problem had
been the subject of complaints well before the issue became publicized.
In part as a result of this investigation, there were changes in the
personnel and procedures at the Department of Corrections.
Answer 1(b): In April 1999, the state Senate Judiciary Committee
conducted hearings on the issue of racial profiling by the state
police. During the fall of 2000, the state Attorney General released
approximately 100,000 documents--many not previously made public--that
addressed this issue. The Committee retained me, and my firm, to re-
investigate this issue based on the released material. From
approximately September 2000 until the present, my staff and I reviewed
the documents, conducted dozens of interviews and depositions, and
participated in approximately nine days of public hearing. Among those
who were interviewed or testified, were all state Attorneys General
from 1989 to the present; senior law enforcement personnel, including
two former superintendents, and the current superintendent, of the
state police; line troopers; victims of profling; and experts. Based
upon these hearings, the Committee is currently working on legislation
and recommendations to address the issue of profiling.
I should point out that both of these engagements were pro bono.
Neither the firm nor I received any compensation, except for
reimbursement of expenses. (See Senate Resolution attached hereto.)
Question 2: In a case litigated by your office when you were United
States Attorney, United States v. Sarbello, 985 F.2d 716 (3d Cir.
1993), your attorneys argued that it was appropriate to seek the
forfeiture of 100% of a business in a case where the jury found that
criminal activity tainted only a small percentage of the defendants'
interest in the business and that the offenses charged were non-violent
and without irreversible or serious collateral consequences. (a) Do you
still think that was a proper argument, especially in light of the
Supreme Court's decision in United States v. Bajakajian, 524 U.S. 321
(1998), which held that forfeitures are subject to the 8th
Amendment's ``excessive fines'' limitation? (b) Also, as a matter of
prosecutorial discretion, should the government seek every dollar in
forfeitures that it can get, or should it temper its decisions with
considerations of fairness?
Answer 2(a): As the decision in United States v. Sarbello makes
clear, the racketeering statute ``mandates forfeiture of the
defendant's entire interest in the RICO enterprise itself, and does not
contemplate mitigation. . . .'' 985 F.2d 716, at 722. The original
decision to seek forfeiture was guided by this statutory mandate. At
the time of trial, the applicability and scope of excessive fines
analysis in the context of forfeiture was unclear. Id., at 722. On
appeal, of course, the Sarbello court established in the Third Circuit
that a gross disproportionality test should be applied to forfeitures.
In light of United States v. Bajakajian, decided several years
later, it is now clear that the gross disproportionality test governs
imposition of forfeitures. Accordingly, were Sarbello tried today, the
government should argue for forfeiture only to the extent that it
comports with the prevailing proportionality standard.
Answer (b): Apart from the constitutional issue, my experiences as
a prosecutor and defense attorney convince me that in the area of
forfeiture the government should exercise prosecutorial discretion
based on fairness and proportionality.
Question 3: In a case litigated by your office when you were United
States Attorney, United States v. Gonzalez, 927 F.2d 139 (3d Cir.
1989), the government engaged in a ``reverse sting'' operation in which
government agents posed as marijuana sellers, entering into an
agreement with an informant that he would receive 25% of the value of
any of the defendants' property that was forfeited as a result of the
case. While in this case. the court affirmed the defendant's
conviction, arrangements with informants such as this raise serious
questions, because it gives informants (who are often criminals
themselves) a strong financial incentive to ``get'' the defendant in
any way possible, including manufacturing false evidence and testimony.
(a) Do you believes that arrangements like the one in this case was
appropriate? (b) What do you believe the limits are on offering
financial inducements to informants to ``make'' cases for the
government?
Answer 3: United States v. Gonzalez was litigated when I was First
Assistant U.S. Attorney in the District of New Jersey. I was not
personally involved in the case. Nevertheless, both as a prosecutor and
defense attorney I have bad extensive experience in dealing with
informants and cooperators. Indeed, as a defense attorney I have had
occasion to cross examine an informant whose entitlement to a bounty
was based at least indirectly on the outcome of the criminal trial. (My
client was acquitted).
(a) While, as the Gonzalez court indicated, financial and non-
financial inducements to informants do not in themselves violate due
process, they raise issues of credibility and reliability. Informants
and cooperators who have financial or non-financial inducements to
assist investigators or prosecutors should be scrutinized with care and
caution. Generally, prosecutors should rely on such individuals only
with adequate corroboration or other indicia of reliability.
(b) In general, even apart from due process considerations,
prosecutors should take care to assure that Financial inducements are
not so substantial as to create undue pressure or enticement for
informants. Also, investigations built around informants should be
designed to develop adequate corroboration and independent evidence, so
as to insure that the informant has not ``manufactured'' a phony case.
Question 4: When you were an Assistant United States Attorney, you
handled a case called United States v. Figueroa, 750 F.2d 232 (2d Cir.
1984). At trial, you introduced hearsay testimony about the contents of
a telephone call, without calling a participant in the call as a
witness, by representing to the district court that the testimony was
not offered to prove the truth of the matters asserted and was
therefore not hearsay. On appeal, the Second Circuit rejected that
argument as ``disingenuous'' and reversed the defendant's conviction.
The court found that you had relied upon the disputed evidence to
supply ``critical'' information to its case and had also relied upon
the truth of the hearsay evidence in its summation. The court found
that the government had violated the ruling of one its prior cases,
stating that ``[t]he whole point of our decision in [the prior case]
was to stop prosecutors from circumventing the hearsay rule by the kind
of atomization here sought to be defended.'' A concurring judge even
went so far as to describe your summation as ``wholly inappropriate.''
Would you care to comment?
Answer 4: I tried United States v. Figueroa several months after I
``as sworn in as an Assistant U.S. Attorney; it was my second trial as
a prosecutor. My inexperience led me to mishandle the introduction of
hearsay testimony, and the subsequent argument relating to that
testimony in summation. Needless to say, the reversal was an
educational, and chastening, experience. With the benefit of time, my
handling of evidentiary and other elements of trial practice became
more surefooted.
I personally retried the defendant, who was again convicted. The
conviction was affirmed on appeal.
Responses of Michael Chertoff to questions submitted by Senator Durbin
Question 1: President Bush's budget proposal for fiscal year 2002
appropriations to the Department of Justice includes resources
allocated for federal, state and local law enforcement agencies to
prosecute juveniles who violate firearms laws. As you may know,
President Clinton had made this item a priority to his Justice
Department budget for fiscal year 2001. If confirmed to your nominated
position, would you work with the Administration, and the Attorney
General to make this funding item a priority, and ensure that such
resources will be properly allocated in order to fully carry out
prosecutions of juvenile firearms violations?
Answer 1: I support the President's proposal to allocate resources
to federal, state and local agencies to prosecute,juveniles who violate
firearm laws. I also agree with the President and the Attorney General
that enforcement of the firearms law should be one of the top
priorities of the Department. If confirmed, I will work with the
Attorney General to promote vigorous prosecution of firearms
violations, and to insure that the Department's resources are
effectively deployed in this effort.
Question 2: A growing number of states are enacting child firearms
access prevention legislation, commonly known as ``CAP'' laws. A study
published in the October 1997 issue of the Journal of the American
Medical Association found that in states that had CAP laws, there was a
23 percent decrease in unintentional firearm-related deaths among
children under 15 years of age. This study also estimated that if all
50 states had CAP laws in place during the study period of 1990-1994,
as many as 215 children might have been saved from such deaths. During
this Congress, I am planning to introduce a federal CAP law that will
be substantially similar to the CAP law enacted in Texas in 1995 under
Governor Bush. One of the benefits of my bill will be to reduce the
burden on the Department of Justice to allocate resources for
prosecution of firearms violations, as the CAP law should reduce the
likelihood of children gaining access to firearms. What is your opinion
on CAP laws generally, and will you support my CAP law to serve as a
deterrent at the federal level?
Answer 2: I wholeheartedly support the effort to reduce firearm-
related deaths among children. Although I am not yet conversant with
the statistics relating to ``CAP'' laws or with various legislative
approaches to the issue, if confirmed, I look forward to working with
the Attorney General and Congress to reduce firearm-related deaths
among children.
Question 3: 1 too feel strongly about the issue of racial
profiling. And I agree with the statement you made this past March,
racial profiling does effect the way communities of color view law
enforcement and the law. President Bush and Attorney General Ashcroft
have given priority to the issue of racial profiling. I commend them
for giving this issue high priority and look forward to working with
them on my ongoing efforts to address this issue in the U.S. Customs
Service.
The insidious practice of racial profiling undermines public
confidence in law enforcement and damages the credibility of police
forces around the country, even though the vast majority of police are
carrying out their duties responsibly and professionally. Most
importantly, racial profiling creates an atmosphere of distrust and
alienation that isolates broad segments of the American population.
As you know this issue affects federal, as well as state and local
law enforcement activities. In fact, a GAO study of profiling practices
of airline passengers concluded that the U.S. Customs Service was
intrusively searching African-American women and other minorities for
contraband at much higher rates than they searched other segments of
the population. Ironically, the women being targeted were statistically
less likely than other passengers to be found carrying contraband.
Specifically GAO found that African-American women were nearly
three times as likely as African-American men to be strip-searched,
even though they were only half as likely to be found carrying
contraband. Furthermore, African-American men and women were nearly
nine times as likely, and Hispanic-American men and women were nearly
four times as likely, as White-American men and women to be x-rayed,
even though they were not more likely to be carrying contraband.
I have introduced legislation to specifically address the concerns
raised in the GAO study and help the Customs Service make more
effective use of its resources, and avoid unwarranted searches.
a. Do you agree that the racial profiling practices of the Customs
Service should be eliminated?
b. Will you support my legislation and urge a favorable statement
of the Administration's position on this proposal?
Answer 3. (1.a): Racial profiling is wrong and should be eliminated
in all law enforcement agencies.
Answer 3. (1.b): As the question notes, President Bush and Attorney
General Ashcroft have identified elimination of racial profiling as one
of their top objectives. Of course, the U.S. Customs Service falls
within the Treasury Department. I look forward to reviewing your
proposed legislation, and to working with Treasury and other
Administration officials, and Congress to eliminate racial profiling.
Question 3 (2): Do you believe that invidious discrimination, in
the form of racial profiling occurring at any and all stages of the
criminal justice process (i.e., stops, investigations, arrests charging
offenses, prosecutions, and sentencing including penalties and
incarceration terms) should be given zero tolerance? What suggestions/
solutions would you recommend to eradicate this pervasive problem?
Answer 3(2): All invidious discrimination, including racial
profiling, is absolutely intolerable in the criminal justice system.
Although I am not in a position at this time to articulate a
comprehensive solution to this issue, I wholeheartedly endorse the
approach taken by the President in his recent directive to the Attorney
General on this subject:
``I hereby direct you to review the use by federal law
enforcement authorities of race as a factor in conducting
stops, searches and other investigative procedures. In
particular, I ask that you work with Congress to develop
methods or mechanisms to collect any relevant data from federal
law enforcement agencies, and work in cooperation with state
and local law enforcement in order to assess the extent and
nature of any such practices. I further direct that you report
back to me with your findings and recommendations for the
improvement of the just and equal administration of our
nation's laws.''
If confirmed, I am eager to play an active role on this issue
within the Administration.
Question 3.3: What are your views regarding repealing mandatory
minimum sentences for drug offenders?
Answer 3.3: I support mandatory minimum sentences for drug
offenders. At the same time, I am open to considering adjustments that
would remedy genuine inequities. In this regard, if confirmed, I would
certainly be willing to address this issue in light of the current
experiences of DEA, federal prosecutors and the Sentencing Commission.
Question 4: In the aftermath of the recent Presidential election,
the Justice Department is conducting a probe of allegations of minority
disenfranchisement in Florida. The Department of Justice will determine
whether a Federal investigation is warranted. In addition, the US Civil
Rights Commission recently released preliminary findings about
irregularities in Florida. These findings include: Haitian, Puerto Rico
and other Hispanic voters were not provided with language assistance;
old and defective election equipment was found in poor precincts; many
blacks did not vote because their polling places could not confirm
their eligibility; and some polling places closed early or were moved
without notice.
1. What are your views on these types of investigations and the
preliminary findings?
2. Will you prosecute violations of the Voting Rights Act to the
fullest extent of the law? Response by Michael Chertoff.
Answer 4: Other than general news accounts, I have no basis to draw
conclusions about the preliminary findings of the Civil Rights
Commission. Additionally, it is my understanding that Voting Rights Act
implementation is committed to the jurisdiction of the Civil Rights
Division, rather than the Criminal Division. The Criminal Division does
have jurisdiction over criminal violations of the federal election
laws. I have personal experience as a prosecutor investigating and
prosecuting election law violations in general, including tampering
with absentee ballots. 1 strongly support enforcement of all laws
designed to protect our fundamental right to vote, and will work to
vigorously investigate possible violations of our election laws.
Question 5: If confirmed to head the Justice Department's criminal
division, you will have a powerful post that would place you in charge
of federal prosecutions--including any prosecutions that might arise
from the Clinton Administration (i.e., Clinton's pardons/commutations).
Given your involvement as counsel to the Senate's Whitewater inquiry,
what standard will you use to recuse yourself from any involvement or
participation, directly or indirectly, in any investigations or other
legal actions concerning those individuals involved in Whitewater and/
or other members of the Clinton Administration?
Answer 5: With the advice of the appropriate agency ethics
officials, I intend to comply strictly with the rules governing recusal
from matters in which I participated while in private practice, and
matters in which I have an actual conflict of interest, or in which my
participation would give rise to the appearance of impropriety under
the governing standard.
Responses of Viet D. Dinh to questions submitted by Senator Leahy
Question 1: You have been a frequent guest on talk shows. You have
also been widely quoted in ewspaper and magazine articles on a variety
of legal topics.
Question (a): If confirmed, will you continue to make public
appearances and express your personal views on legal and political
issues?
Answer: I understand that, if I am confirmed as Assistant Attorney
General, the rules and considerations governing my public appearances
would differ from those governing me as a law professor. If confirmed,
I would only make public appearances and express views appropriate to
my role as Assistant Attorney General.
Question (b): Do you foresee any conflicts between positions you
have taken on talk shows, in law review articles or other public forums
and your duties as Assistant Attorney General?
Answer: No.
Question (c): Would you have any problem as an attorney for the
government taking a position that was inconsistent with one that you
had previously taken in your writings or talk show appearances?
Answer: No.
Question 2: In some of your writings and speeches, you have
referred the need to insure that judges do not act arbitrarily by
deciding cases based upon their own personal preferences instead of
properly interpreting the law. Can you give us some examples of cases
where you believe that courts have violated that principle?
Answer: My view of the proper role of judges in a democratic
society stems from a structural examination of the Constitution and the
institutions of government established therein, and not from any
particular case or controversy. Nevertheless, an example of the danger
posed when judges go beyond interpreting laws and instead make up rules
according to their personal bias or caprice is People v. Hall, 4 Cal.
399 (1854), as I discussed in Races, Crime, and the Law, 111 Harvard
Law Review 1289, 1292 (1998). In that case, the court interpreted a
statute providing that ``[n]o black or mulatto person, or Indian, shall
be permitted to give evidence in favor of, or against, any white
person'' to exclude the testimony of Chinese witnesses. The court based
its decision on the conclusion that the meaning of the term black
``must, by every sound rule of construction, exclude every one who
[was] not of white blood'' and that Asians were simply ``the more
degraded tribes of the same species'' of colored people. Hall, 4 Cal.
at 403.
Question 3: In a 1999 article in a journal called The Green Bag,
you wrote that a ``restraint on those exercising judicial power may be
needed to ensure some level of accountability.'' You further state that
it may be necessary to, ``acknowledge the fallibility of judges and to
devise responsive processes.'' However, you do not identify what
specific ``restraints'' or ``responsive processes.'' Can you explain
what type of ``restraints'' on the judicial branch of government you
believe are warranted, in addition to those already provided in the
United States Constitution (i.e., appointment by the President with the
advice and consent of the Senate and impeachment and removal by
Congress)?
Answer: The article concerned law and development in countries
other than the United States where, by definition, the United States
Constitution does not govern. The full sentence from which the above
quotation is selected reads in its entirety: ``In looking at
alternative institutional arrangements, however, perhaps a more
fruitful response is to acknowledge the fallibility of judges and to
devise responsive processes to prevent what Justice Stanley Reed
decried as a krytocracy, the rule by judges.'' 3 The Green Bag 2d 19,
26-27 (1999). I cannot specify in the abstract the alternative
institutional arrangements that would be appropriate or warranted for
any particular place or polity.
Question 4: At your hearing, you testified that you have not had
any, ``specific conversations regarding the role of the component,'' in
the selection, vetting and confirmation of federal judges.
Question (a): What role would you like to see OPD have in judicial
selection?
Answer: If confirmed, I would like to support the Attorney General
and the President, in whatever capacity they may deem appropriate, in
ensuring that men and women who are nominated for judicial office
possess high personal character, intellectual and professional
competence, and a commitment to the rule of law.
Question (b): Have you had any conversations, even general
conversations, about the role of OPD in judicial selection?
Answer: I have had a few general conversations, to the best of my
recollection, to the effect that judicial selection should be a shared
responsibility among various components of the Administration,
including the Office of Policy Development.
Question (c): Other than judicial selection, have you had any
conversations about the role and responsibilities of OPD under Attorney
General Ashcroft?
Answer: Yes.
Question (d): If so, what have you learned are the plans for OPD?
Answer: As I recall, the Attorney General said to me that the
essence of leadership is to redefine the possible and that he expected
me, if confirmed, to lead the Office of Policy Development as a ``think
tank'' to generate ideas and implement policies to improve the
administration of justice.
Question: If the news reports are correct, much of the work of
vetting judicial nominees so far has been done by the Office of the
White House Counsel. Could you tell us what you understand your role
and the role of the Department of Justice will be with respect to the
screening and evaluation of candidates for nomination to the federal
bench?
Answer: I understand that the screening and evaluation of judicial
candidates would be a shared responsibility among various components of
the Administration, including the Office of Policy Development.
Question 5: If OPD retains a role in judicial selection, will you
continue the practice followed over the last eight years of involving
career attorneys from all over the Department of Justice in the process
of evaluating candidates for the bench?
Answer: Although I am not familiar with the practice followed over
the past eight years, if I am confirmed and to the extent that the
Office of Policy Development has a role in judicial selection, I intend
to seek help as needed and when appropriate from attorneys in other
components of the Department of Justice.
Question 6: If OPD retains a role in judicial selection, and if the
results of your office's evaluation of a candidate for the federal
bench shows that he or she does not have the qualifications or the
temperament to be a United States District Court or Appellate judge,
what action will you take?
Answer: If I am confirmed and to the extent that the Office of
Policy Development has a role in evaluating candidates for judicial
office, the results of the Office's evaluation of any particular
candidate will be conveyed using the proper channels within the
Department of Justice and the Administration.
Question 7: On the CNN talk show ``Burden of Proof'' which aired on
February 12,1999, right after President Clinton's acquittal by the
Senate, you said that you thought that the impeachment process had
``worked great.'' What lessons do you think we learned from the Clinton
impeachment and, if we had it to do over again, what do you think we
should do differently?
Answer: As I explained, ``What the message is, is that the process
worked, that the two-thirds safeguard [in] the Constitution is there
for a reason, as Abbe noted, and that it takes a much larger consensus
across party lines in order to do something of this magnitude, that is
to remove a president.'' Because impeachments are necessarily and
thankfully rare and unique, I do not think it proper for me at this
time to make generalizations about the experience or to draw
conclusions as to what should be done differently in the future. Any
generalizations or conclusions should be made by a future Congress
contemplating such action.
Question 8: You also opined various times on talk shows that the
constitutional phrase ``high crimes and misdemeanors'' had no fixed
meaning and that it was essentially up to the Congress to define what
was an impeachable offense. Do you believe that there are any
constitutional limitations on the conduct for which a President may be
impeached? Could a President constitutionally be impeached, for
example, for littering, if the majority of the House of Representatives
were so inclined?
Answer: I have stated that ``the standards for high crimes and
misdemeanors is undefined and illdefined for a purpose: to let each
generation, let each Congress make the determination, as necessary as
befits the particular circumstances, as to what constitutes an
impeachable offense.'' I explained that, in making that determination,
Congress is guided by ``the history of tradition and practice of
Congress in past proceedings.'' Furthermore, I stated that the power of
Congress to define ``high crimes and misdemeanors'' is substantially
circumscribed by the need to achieve consensus in the House of
Representatives and by the requirement that conviction be approved by a
two-thirds vote of the Senate. In my view, these structural constraints
would preclude impeachment for trivial offenses.
Question 9: On several occasions, you praised the work of former
Special Prosecutor Kenneth Starr, although you opined that the special
prosecutor law, which has now expired, was unconstitutional. Putting
aside the question of the statute's constitutionality, are there any
aspects of Kenneth Starr's investigation that you believe were handled
inappropriately?
Answer: On February 25, 1998, in an interview with CNBC news, I
stated that I did not think that it was appropriate for Judge Starr to
conduct a grand jury investigation into whether President Clinton's
supporters were disseminating rumors to the media about employees of
the Office of Independent Counsel. The full transcript of that
interview was submitted to the Committee as item 144 in the attachments
to Appendix C (Media Appearances) in response to Part I, Question 12
(Publications).
Question 10: In October of 1999, you testified before the
Subcommittee on the Constitution in the
House of Representatives concerning The Civic Participation and
Rehabilitation Act of 1999, which would have restored the rights of
persons convicted of felonies to vote in federal elections. You opined
that the bill would have unconstitutionally infringed the powers of
states to prescribe voter qualifications. However, you suggested that
it would be constitutional to enact such a law if Congress found that
state disenfranchisement laws were motivated by racial animus.
Question (a): Can you give us some specific examples of the kind of
evidence you believe would be sufficient to make the required showing
of racial animus?
Answer: The Supreme Court in Hunterv. Underwood, 471 U.S. 222
(1985), unanimously invalidated a provision of the Alabama Constitution
of 1901 which disenfranchised persons convicted of a misdemeanor
``involving moral turpitude.'' That decision was based on historical
evidence in the record showing that the purpose of the 1901 convention
was to ``establish white supremacy'' in the state. See Id. at 229-32.
Question (b): Assume that the bill had been enacted in a form that
you believed was unconstitutional. Would you nevertheless, as a
representative of the Department of Justice, argue in support of the
law's constitutionality when it was challenged in the courts?
Answer: To the best of my recollection, I did not opine that the
bill, as then drafted, was unconstitutional. Rather, I testified that,
based on the Court's precedents, it would not ``likely withstand
judicial scrutiny.'' Although other components within the Department of
Justice are responsible for representing the United States in court, if
called upon I would accord laws enacted by Congress the requisite
presumption of constitutionality and present reasonable, good faith
arguments in their defense.
Question 11: In a law review article on the pre-emption doctrine
published last year, you argued for ``respecting'' the limits of
congressional power under the Commerce Clause as a means of insuring
that the rights of states are preserved. As an attorney for the
Department of Justice, you or those working under your supervision, may
be called upon to defend the constitutionality of statutes that some
would argue exceed Congress' power under the Commerce Clause. Would you
be prepared to zealously represent the interests of the United States
and defend the constitutionality of statutes even if you personally
believed that they exceeded the congressional Commerce Clause power?
Answer: Although other components within the Department of Justice
are responsible for representing the United States in court, if called
upon I would accord laws enacted by Congress the requisite presumption
of constitutionality and present reasonable, good faith arguments in
their defense.
Question 12: You were reported as saying in a 1998 article in the
Legal Times that government attorneys do not have any attorney-client
privilege because their client is the United States. What rules of
confidentiality do you believe are applicable the work product of
government
attorneys?
Answer: The article, From the Shadow of War to the Ivory Tower: The
Incredible Journey of Georgetown's Viet Dinh, Legal Times, Sept. 7,
1998, at S42, reported comments I made discussing In re Lindsey, 148
F.3d 1100 (D.C. Cir.1998), and In re Grand Jury Subpoena Duces Tecum,
112 F.3d 910 (8th Cir. 1997). As you know, the courts held
that the governmental attorney-client privilege did not protect
information about possible criminal conduct in those cases. Those
decisions were based on the strong governmental interest in exposing
wrongdoing by government officials and the requirement that federal
employees, including government lawyers, report evidence of federal
criminal offenses whenever such evidence comes to them. See 28 U.S.C.
Sec. 535(b).
Outside of these specific contexts where the government's interest
in criminal investigations outweigh the need for governmental
confidentiality, I believe that the work product of government
attorneys may be protected by, among other things and depending on the
context, the attorney-client privilege, see Coastal States Gas Corp. v.
Department of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980); exemption
five of the Freedom of Information Act, see 5 U.S.C. Sec. 552(b)(5);
and the deliberative process component of executive privilege, see
United States v. Nixon, 418 U.S. 683 (1974).
Question 13: Another issue with respect to government privileges is
whether the President has a privilege to prevent Secret Service agents
from testifying about conversations they overhear while protecting him.
On CNN's ``Burden of Proof'' talk show on July 15, 1998, you stated
that the District of Columbia Court of Appeals had correctly refused to
recognize such a privilege when Secret Service agents were subpoenaed
by Independent Counsel Kenneth Starr. The Supreme Court later denied
certiorari in that case. Would you as an attorney for the government be
willing to argue for the existence of a Secret Service privilege even
though you personally disagree with that argument?
Answer: I stated that ``the appellate court is foursquare with the
teachings of the Supreme Court up to this point.'' Although other
components within the Department of Justice are responsible for
representing the United States in court, if called upon I would present
reasonable, good faith arguments to support positions of the United
States.
Question: Assuming that the Supreme Court would decide not to
recognize a Secret Service privilege, there has been some discussion of
creating a presidential protection privilege by legislation in the
interests of insuring the President's personal safety. Would you
support the enactment of such a law?
Answer: I believe that the President's personal safety is of
paramount importance to the United States. Although it would be
improper for me to state a policy position on such a measure in the
abstract, without the benefit of careful study, and without soliciting
the views of affected components of the Department and other agencies
within the Administration, if confirmed I would work with you and the
Congress on this important matter.
Question 14: In a chapter entitled ``Multiracial Affirmative
Action'' published in the book Debating Affirmative Action, you argued
that affirmative action was appropriate as a remedy for past injustice
but not as a means of achieving racial diversity. You argued that the
latter basis for affirmative action was inappropriately supplanting the
former in our society. However, the February 18, 1997 edition of The
Harvard Crimson which reported on a panel discussion in which you
participated at Harvard, stated that you had expressed satisfaction
with the status quo as to how affirmative action is currently practiced
in this country.
Question (a): Can you explain your current views on affirmative
action?
Answer: Affirmative action means many different things to different
people. To some, affirmative action may mean outreach or recruitment
programs, and to others, it may mean numerical quotas. I have not
endeavored to adopt or articulate a personal definition of affirmative
action. My views on governmental racial classifications were
articulated in Races, Crimes, and the Law, 111 Harvard Law Review 1289,
1294 (1998). As I wrote, ``The Equal Protection Clause of the
Fourteenth Amendment, as interpreted by the Supreme Court, guarantees
an individual the right to be free from governmental discrimination on
the basis of race, except when racial classifications are narrowly
tailored to further a compelling governmental interest. See, e.g.,
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 228-30, 237 (1995).''
Question (b): Would you give some concrete examples of
circumstances where you believe affirmative action would be justified?
Answer:In discussing governmental interests sufficiently compelling
to justify governmental classifications on the basis of race, I wrote:
``The classic example of such a justification is one that seeks to
remedy past violations of other individuals' right of equal
protection.'' Races, Crimes, and the Law, 111 Harvard Law Review 1289,
1295 (1998). As the Supreme Court has stated, whether particular racial
classifications are constitutional depends on a host of contextual
factors-including, but not limited to, the nature and strength of the
government's interest, the history of the applicable jurisdiction or
agency, the scope of the relevant policy, and the availability of race-
neutral alternatives. Given the context-specific nature of the inquiry,
I am unable to provide examples in the abstract.
Question 15: In your 1999 remarks at a symposium on the ``Role of
Legal Institutions in the Economic Development of the Americas,'' you
wrote about what you termed, ``the danger of runaway judges.'' You
wrote that, ``[a]n independent judiciary . . . carries the danger that
the independence will be misused.'' You go on to say, ``[t]o prevent
such abuse of independence, there need to be mechanisms that restrain
the judiciary from exercising arbitrary power.'' However, you leave it
there, with no specific recommendations. What mechanisms do you propose
to prevent ``runaway judges?''
Answer: My remarks and the symposium at which they were delivered
concerned legal institutions in countries other than the United States.
I stated that ``[a]s we build new or modify existing judicial and legal
systems, the challenge then is for us to consider the tension between
independence and restraint and to find the proper balance between the
two.'' I cannot specify in the abstract the institutional arrangements
or modifications that would strike the proper balance and otherwise be
appropriate for any particular place or polity.
Question 16: In your 1997 article, ``Forming and Reforming Wants,''
you write about what you believe are the problems of associated with a
public desire for status, or luxury, goods. You write that these
desires have a ``damaging potential,'' and you propose a solution of
``restrictions on advertisements that only stimulate human impulses
for,'' such luxury items.
Question (a): Could you explain how you reconcile a call for this
sort of content based regulation of commercial speech with the First
Amendment?
Answer: As I stated in the article, ``True information about the
market serves a lubricating function that is an essential market
mechanism for maximizing intrinsic preferences-dissemination of such
information should be encouraged. Virginia State Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976).''
The balancing of important policy objectives and vital commercial
speech interests is a critical prerequisite to any specific proposal.
As you know, since Virginia State Board, the Supreme Court has
continued to refine its commercial speech jurisprudence, and any
specific proposal would need to hew to the doctrinal lines drawn by the
Court.
Question (b): In the article, you also say that, ``[t]ranscendent
ideals,'' such as trying to curtail our desires for status goods,
``find their best expression in religious beliefs, `` and that,
``religious teachings--for example, the designation of pride and envy
as prohibited sins--[could] serve to foster the market's true
potential.'' Would you propose to insert religion into public life in a
way that would make us better citizens and more likely to act in a more
civically positive way?
Answer: I proposed to promote civic virtue in the public culture,
not through governmental coercion, but through a gentle process of
cultivation--what Alexis de Tocqueville called ``the slow and quiet
action of society upon itself.'' I recognized that there are often
parallel virtues fostered by different institutions toward the goal of
a genuine community. The church and the state are important
institutions, among others, in this endeavor. The interaction between
them is governed by Exercise and Establishment Clauses of the First
Amendment and by the Supreme Court's complex and voluminous
jurisprudence interpreting those clauses.
Question 17: In your 1999 article, ``What is the Law in Law and
Development,'' you wrote that, ``it seems hypocritical or at least
complacent for Western scholars and institution builders to implore
developing countries to promote and enforce the rule of law.'' (a)
Exactly what did you mean by that? (b) Is there some better alternative
to the rule of law that we ought to be promoting among developing
nations?
The point of the article was precisely to defend the rule of law as
a tool for economic development. The need for such a defense stems from
the fact that influential theorists have launched a powerful
intellectual offensive against ``the neutrality of law and legal
processes that serve as the foundation of the rule of law.'' The
passage quoted in your question reflects my view that, in light of the
theoretical challenges, it would be ``hypocritical or at least
complacent'' for us to encourage the adoption of the rule of law
paradigm without also justifying and defending that paradigm.
Question 18: A little further on in the same article, you write
that, ``it seems perfectly reasonable for critics to question whether
the rule of law has any vitality in shaping the institutions of
governance.'' Are you saying that the rule of law has no life left in
it? What do you mean?
Answer: My article emphatically rejected any impulse either to
avoid challenges to the rule of law or to abandon the rule of law.
Instead, I provided a theoretical defense of law as a tool for economic
development and sketched ``a more comprehensive approach to promoting,
maintaining, and enforcing the rule of law through institutions that
perform the three basic functions of legislation, execution, and
adjudication.'' The article concluded with a call to ``make law work
for development'' by merging techniques with ideals in order to promote
the rule of law.
Question 19(a): Have you done any consulting work, formal or
informal, for the Department of Justice and/or the Office of Policy
Development since the beginning of the Bush Administration?
I have not done any work for the Department of Justice and/or the
Office of Policy Development since the beginning of the Bush
Administration. I have discussed with the Office of Presidential
Personnel and the Office of the Attorney General the qualifications of
candidates to be deputies in the Office of Policy Development.
Question 20: Do you know anything about the wholesale transfer of
career OPD employees working on Violence against Women issues?
Answer: I did not play any role in nor was I consulted about any
personnel transfer from the Office of Policy Development. I was
informed after the fact of an administrative change in personnel, but I
do not know specifically who was transferred or on what issues they
were working.
Question (a): Do you plan on making any further personnel changes?
Answer: Out of respect for the Senate's role in providing advice
and consent on my nomination, I have not been involved in the operation
of the Office of Policy Development and have not formulated any plans
with respect to personnel.
Question 21: What should we make of the transfer of career people
working on VAWA issues for the future of a coordinated policy on the
crucial issue of Violence of Women?
Answer: The Attorney General has stated publicly his strong
commitment to combating violence against women and to enforce
faithfully and vigorously the Violence Against Women Act. If confirmed,
I would work toward a coordinated and effective policy to advance this
important mission, whatever the administrative personnel structure may
be.
Question 22: You are familiar with the Supreme Court's December 9
stay and its December 12 per curiam decision in the recent case of Bush
v. Gore--you followed the case closely as a member of Law Professors
for Bush-Cheney, and as a legal commentator for CNN. The Supreme Court
acknowledged that, ``the problem of equal protection in election
processes generally presents many complexities.'' Where does the
``logic'' of the Court's equal protection holding go in your view? If
it was a violation of equal protection to evaluate ballots within
Florida as ordered by the Florida Supreme Court in accordance with the
standards set by the Florida legislature and under the supervision of a
Florida Circuit Court Judge, does that suggest that the constitutional
right to equal protection might require national standards for voting
and the counting of votes?
Answer: Seven Justices of the Supreme Court agreed that ``[t]he
recount process, in its features here described, is inconsistent with
the minimum procedures necessary to protect the fundamental right of
each voter in the special instance of a statewide recount under the
authority of a single state judicial officer.'' Bush v. Gore, 531 U.S.
98, 121 S.Ct. at 532 (2000) (per cunam); see also Id., 121 S.Ct. at 545
(Souter, J., dissenting). However, the Court made clear that its
``consideration is limited to the present circumstances, for the
problem of equal protection in election processes generally presents
many complexities.'' Id., 121 S.Ct. at 532 (per curiam). Given the
contextual complexities of the problem of equal protection in election
processes, I am unable to generalize about the logical or practical
reach of the Court's decision in the abstract.
Question 23: Do you consider that decision of the United States
Supreme Court to be an example of thoughtful and prudent judicial
decision making, judicial activism, or what you have called the
exercise of arbitrary power by the judiciary?
Answer: I think all the Justices, including the seven who agreed
with Petitioners' equal protection claim and those who disagreed with
all or part of the Court's reasoning, exercised their judgment in a
thoughtful and prudent manner given the nature of the case, the rulings
below and the constraints of time.
Question 24: In 1999, on behalf of a group called the ``Liberty
Legal Institute,'' you submitted a friend of the court brief in a case
called Santa Fe Independent School District v. Doe, a case about the
constitutionality of school sponsored prayer. In its 6-3 opinion, the
Supreme Court held that the delivery of an invocation before high
school football games which was on school property, at school-sponsored
events, delivered over the school's public address system, by a speaker
representing the student body, under the supervision of school faculty,
and pursuant to a school policy that explicitly and implicitly
encouraged public prayer, violated the Establishment Clause of the
Constitution. You argued that it was constitutional. Do you still
believe so?
Answer: As counsel for certain Texas public school students, their
parents, and the Liberty Legal Institute as amici curiae in support of
the Sante Fe Independent School District, I presented a good faith and
reasonable argument advancing what I believed to be the correct reading
of contemporary Supreme Court precedents applied to the facts of that
case. The Supreme Court disagreed with that argument, and I accept the
Court's decision.
Question 25: You also wrote an amicus brief for the Liberty Legal
Institute in the Good News case, which the Court is now considering.
That cases involves an adult-led religious group for students that
wants to meet right after school, and involves students as young as 6
years old, and up to 12. You contend that because other, non-religious
groups can meet at the school, that the Good News group should be able
to meet as well; you also argue that ``the impressionability'' of the
young schoolchildren is ``irrelevant'' to the establishment clause/
endorsement analysis. In the Sante Fe case, in which you were on the
losing side, the Court said the relevant reasonable observer was ``an
objective Santa Fe high school student,'' even though community members
could attend the football games or graduations involved. Your view
would radically change the Establishment Clause's interpretation and
make it much easier to improperly promote or push particular religious
practices and beliefs on young, impressionable schoolchildren in our
public schools. Is that the view of the Establishment Clause you will
be taking to the Department of Justice?
Answer: As counsel for the Liberty Legal Institute as amicus curiae
in support of the Petitioners, I presented a good faith and reasonable
argument advancing what I believed to be the correct reading of extant
Supreme Court precedents applied to the facts of the case. The matter
is currently pending before the United States Supreme Court, and I will
abide by the Court's disposition of the case.
Question 26: At your hearing you mentioned that you have gotten
into, ``many, many disagreements,'' with other members of the
Federalist Society. Could you give me some examples of the sorts of
disagreements you have been in with other members of the Federalist
Society?
Answer: It is the norm and the expectation for me, as a legal
academic, to engage in ongoing discussions about law and public policy.
Such candid and good-faith discussions involves constant disagreements
among people who think critically about issues of mutual interest. As I
testified, the Federalist Society counts among its members many who
thinks critically about issues of law and public policy and who holds
different views on the issues. Some examples of recent disagreements I
have had with people whom I believe to be Federalist Society members
include: whether the Supreme Court's recent preemption cases are at
odds with its cases interpreting Article 1, section 8 or the Eleventh
Amendment of the U.S. Constitution, see When Uncle Sam Steps In, Legal
Times, June 19, 2000, at 66; whether the Constitution admits of a
presumption against federal preemption of state laws, see Whose Call Is
It? Supreme Court Should Rethink Preemption Law, Legal Times, Dec. 6,
1999, at 50; and whether adopting a presumption against federal
preemption of state laws is a proper way to respect the constitutional
division of power between the federal and state governments, see
Reassessing the Law of Preemption, 88 Georgetown Law Journal 2085
(2000).
Question 27: At your hearing, you said that ``all Americans--
regardless of race, class, sex, religion, socioeconomic status, or any
other status--should enjoy the security that comes with the faithful
and vigorous execution of the law.'' You did not list sexual
orientation. Do you believe that people and governments should be able
to discriminate on the basis of sexual orientation?
Answer: I fully intended for sexual orientation (and ethnicity, for
that matter) to be included in the phrase ``any other status'' in the
above-quoted sentence. All Americans should enjoy the security that
comes with the faithful and vigorous execution of the law.
Question 28: Senator Kennedy, along with 51 co-sponsors, introduced
a hate crimes bill in the Senate earlier this year (S. 625). The bill
covers the he incidence of violence motivated by the actual or
perceived race, color, religion, national origin, gender, sexual
orientation, or disability of the victim. Please read the bill and tell
me whether you (a) support the passage of this bill? (b) believe it is
constitutional, as written? (c) believe this bill represents good
public policy?
Answer: If confirmed, I would work to fulfill the Attorney
General's pledge to take all reasonable and appropriate steps to combat
hate crimes at the federal level. I welcome the opportunity to work
with Senator Kennedy and other Senators, in support of the Attorney
General and the President, to study the important issue of hate crimes.
Although it would be improper for me to state a policy position on the
legislation without the benefit of careful study and the views of
others in the Department and the Administration, if confirmed I would
work to provide expeditiously a view on the constitutional and policy
implications of this and other legislation.
Question 29: What about the Employment Non-Discrimination Act that
Senator Kennedy has sponsored in past Congresses, which outlaws
discrimination in employment on the basis of sexual orientation. Could
you read the bill and tell me whether you (a) support the passage of
this bill? (b) believe it is constitutional, as written? (c) believe
this bill represents good public policy?
Answer: As I testified, I believe that all Americans should enjoy
the equal protection of the laws. I have not had the opportunity to
study carefully the proposed legislation and to solicit the views of
others in the Department and the Administration. Without such review
and consultation, it would be improper for me to comment on the
constitutional, legal and policy implications of the measure. I welcome
the opportunity, if confirmed, to study this issue further and to work
with Senator Kennedy and others on specific legislative initiatives in
this area.
Question 30: You talked at your hearing about your background as an
immigrant to the United States. I would like to ask you a few questions
about pressing legal issues related to immigration and immigrants:
Question (a): The Supreme Court has recently heard arguments in two
cases challenging aspects of the 1996 Illegal Immigration Reform and
Immigrant Responsibility Act and its implementation by the Department
of Justice. In the IIRIRA, Congress broadened the definition of crimes
that prompt deportation, and applied that definition retroactively. As
a result, many legal residents of the United States have been removed
or face removal based on relatively minor crimes they committed prior
to the passage of this law. Some face removal for crimes for which they
did not even serve time and to which they plead guilty with the
understanding (correct at the time) that such a plea would have no
effect on their immigration status. Do you believe such a retroactive
application of the law accords with constitutional principles? Would
you support efforts to reduce or eliminate the retroactive effect of
this legislation?
Answer: I agree with the Attorney General that it is appropriate to
study the HRIRA carefully and to work with the President and the
Congress toward any reforms necessary to make the immigration laws more
equitable, effective and humane. Like the Attorney General, I am
troubled by some of the stories that have emerged as a result of the
IIRIRA. I know that there have been legislative and administrative
attempts to address these concerns, and if confirmed I would work with
the Attorney General, the President and the Congress to find ways to
address them, while allowing for the swift removal of serious or
violent criminals.
Although I do not think it appropriate for me to comment on matters
that are the subject of pending litigation, if confirmed I would
examine carefully the constitutional issues raised by retroactive
application of the IIRIRA in light of guidance given by the Supreme
Court in the INS v. Enrico St. Cyr.
Question (b): The other issue the Supreme Court is considering
relates directly to the Justice Department's interpretation of the
IIRIRA. The Justice Department has interpreted IIRIRA as precluding all
habeas review and most all direct review of removal orders based on
past criminal activity. It seems to me that this position flies in the
face of our shared commitment to due process and our history of more
than a century of providing habeas review before expelling a legal
United States resident from the country. Does the position that the
Justice Department has taken since passage of this act concern you? Do
you believe that legal permanent residents should receive the
opportunity of judicial review before being removed from the country?
Answer: I have a strong commitment to ensuring that the laws
relating to immigrants to this country are fairly and properly
enforced. I do not think it appropriate, however, for me to comment on
matters that are the subject of pending litigation. If confirmed, I
would study carefully the issues relating to direct and habeas review
of removal orders based on past criminal acts under the BRIRA, as well
as the Department's position on these issues, in light of the guidance
provided by the Supreme Court in Calcano-Martinez v. INS and INS v.
Enrico St. Cyr cases.
Question (c): I have been concerned about the government's use of
expedited removal since it first passed in 1996. As you may know, under
expedited removal an alien can be removed from a U.S. port of entry on
the say-so of an INS inspections officer. Aliens who have to flee their
countries without obtaining a passport, or even those who have valid
papers that the INS officer simply suspects are invalid, face an
immediate return to the country from which they came without
opportunity for administrative or judicial review. The immigration
subcommittee is having a hearing dealing with this issue this week, and
I plan to introduce a new version of legislation I introduced with
Senator Brownback in the past Congress that would restrict the use of
expedited removal to times of immigration emergencies. As an American
who came here as a refugee, does the use of expedited removal trouble
you? Would you be willing to support legislation that would restore
procedural protections to those seeking entry into the U.S.?
Answer: I care deeply about the laws which affect the manner in
which aliens are admitted to the United States; my family and I were
welcomed to this country as immigrants and refugees. Although it would
be improper for me to comment on specific legislation without the
benefit of careful study and the views of others in the Department and
the Administration, I agree with the Attorney General that we should
treat those fleeing persecution with compassion and fairness. The
Attorney General's statement that America was founded as a beacon of
hope to the world rings especially true to me, and I share his
commitment to continue this proud heritage of hope, opportunity, and
freedom. I thank you and Senator Brownback for your leadership on these
matters, and I look forward, if confirmed, to working with you and
others to ensure that our immigration laws are administered fairly and
humanely.
Responses of Viet D. Dinh to questions submitted by Senator Biden
Question 1: I introduced the Violence Against Women Act, which the
Congress first passed in 1994 and reauthorized last year. The Act has
been very successful in aiding states, local governments, tribes, and
nongovernmental organizations combat domestic violence, rape, sexual
assault, and child abuse.
What are your priorities regarding the Violence Against Women Act?
What do you see as the strengths and weaknesses of the implementation
of the Act thus far? What policies do you plan to develop for the
Department's implementation of the Act in the future?
Answer: I share the Attorney General's stated commitment to
fighting domestic violence and all forms of violence against women, and
to enforcing vigorously the Violence Against Women Act. Like the
Attorney General, I am committed to working to ensure that the laws in
this area are enforced fully and fairly.
If confirmed, I will take direction from the Attorney General in
setting priorities regarding the Violence Against Women Act. Although I
cannot comment on specific implementation issues and policy proposals
without further review of the Act, its history, and the Department's
current work in this area, if confirmed I will closely study these
issues and will work with the President, the Attorney General, and the
Congress to develop policies regarding its future implementation.
Question 2: The funding provided by the Violence Against Women Act
is vital to its success. Appropriations for the Act fund such grants
and programs as STOP grants, rural domestic violence and child abuse
enforcement, the national domestic violence hotline, and battered women
shelters. While more than half of the funding under the Act goes to the
Justice Department, most of the remainder goes to fund the Act's
programs and grants administered by the Department of Heath and Human
Services.
Given the authorization levels set by the Congress to fund the
grants and programs of the Act, what are your views regarding the need
for appropriations? Would you support a five-year reauthorization of
the Violent Crime Reduction Trust Fund to support funding of the Act?
Answer: The Attorney General has stated that under the President's
budget for Fiscal Year 2002, key Department of Justice programs to
fight violence against women will receive full funding, a $102.52
million increase over 2001. The Attorney General has also announced
that the Justice Department is awarding $55 million to states as the
first round of this year's formula grants to prevent and respond to
violence against women. I agree with his statement that ``[w]e must
continue to provide our communities with the resources to hold
offenders accountable and to meet the needs of victims,'' and I share
the Attorney General's commitment to enforcing the Violence Against
Women Act. If confirmed I will work to assist him in vigorously
enforcing any federal legislation enacted toward that end. My position
on the reauthorization of the Violent Crime Reduction Trust Fund would
require closer study of the matter and consultation with others in the
Administration and the Department of Justice, and it would be
inappropriate for me to comment without the benefit of such review and
additional views.
Question: What do you see as the relationship between the Act's law
enforcement programs funded by the Justice Department and the Act's
social service programs funded by the Department of Health and Human
Services? Given your view of this relationship, what policies should be
developed regarding the implementation of the Act as a whole?
Answer: I share the Attorney General's strong public commitment to
faithful and vigorous enforcement of the Violence Against Women Act.
Although I cannot comment on the specific relationship between the law
enforcement programs and the social service programs of the Act without
further review of the issues, if confirmed I will study these issues
closely and work with Congress, the Attorney General and the staff of
the Department of Justice and the Department of Health and Human
Services to develop appropriate policies to coordinate effective
implementation of the Act as a whole.
Question 3: It has recently been reported that four staff attorneys
who worked on violence against women concerns have been reassigned from
the Office of Policy Development to the Office of Justice Programs. I
understand that these attorneys also acted as contacts on these issues
for other components of the Department as well as for those making
inquiries from the outside.
How do you plan to staff violence against women issues at the
Office of Policy Development? How many attorneys should be working on
the Violence Against Women Act, either full or part time? If the
Administration has indeed made violence against women a priority, then
will the Office of Policy Development have a number of staff members
developing policies on this issue? What suggestions do you have for
staffing the issue of violence against women among the front leadership
offices outside the Office of Policy Development such as, for example,
the Offices of the Attorney General, the Deputy Attorney General, the
Associate Attorney General, or Legislative Affairs, and how do you
think these various front offices should coordinate with each other on
this issue?
Answer: If confirmed, I will work with the Attorney General, the
Deputy Attorney General, the Office of Justice Programs and the other
offices within the Department to ensure that adequate staff resources
are dedicated to carry out the Attorney General's stated commitment to
faithful and vigorous enforcement of the Violence Against Women Act.
Because I have not assumed any duties of office out of respect for the
Senate's role in providing advice and consent on my nomination, I am
not in a position to comment on the staffing of particular offices or
coordination among them. I welcome the opportunity to address this
important issue if confirmed.
Question 4: I introduced a bill to make the Violence Against Women
Office a permanent, separate component within the Department.
What are your views of my bill?
Answer: I share the Attorney General's strong public support for
the Violence Against Women Act and for full funding in order to achieve
its objectives. Like the Attorney General, however, I am reluctant to
express a view on the creation of new statutory entities within the
Department until I have had the chance to study the performance of the
entities which exist now and to consult with others within the
Department and the Administration. I look forward to working with you
to make this program as fully effective as possible.
Responses of Viet D. Dinh to questions submitted by Senator Feinstein
Question 1: I authored legislation that was signed into law in 1999
that mandates up to 20 years in prison for anyone who distributes
bombmaking information knowing or intending that the information will
be used for a violent federal crime [18 U.S.C. 842(p)]. However, while
this law has been on the books for over 20 months, it has apparently
not been enforced. As far as I know, federal prosecutors have not
charged a single person under the statute. In the meantime, there have
been at least 15 incidents reported in the press in which individuals
have obtained bombmaking information from the Internet or elsewhere and
used that information to commit serious crimes. I wrote Attorney
General Ashcroft on February 2 and on March 13 asking about Justice
Department enforcement of this law but I have not received a response
to either letter.
If confirmed, will you see that I get the courtesy of a response to
my inquiries on this matter?
Answer: Yes.
Question 2: As you may know, in the last Congress, Senator Kyl and
I introduced a proposed constitutional amendment to provide rights for
crime victims. President Bush endorsed the amendment, and thenSenator
John Ashcroft, a member of the Judiciary Committee, voted for the
proposed amendment in Committee. With the assistance of Professor Larry
Tribe and other constitutional scholars, we have recently redrafted the
amendment to meet concerns expressed by some Senators. A copy of this
new and improved amendment has been provided to the Justice Department.
If confirmed, would you argue that the Justice Department, and the
Administration, should support a constitutional amendment to protect
the rights of crime victims?
Will you make the consideration of this amendment a top priority?
Answer: I share the Attorney General's public commitment to
protecting the rights of crime victims and the President's view that a
constitutional amendment may be a promising means to advance this goal.
I welcome the opportunity to work with you on this important issue and,
if confirmed, I would carefully study the proposed constitutional
amendment as re-drafted by you, Senator Kyl and others. My position on
the amendment would be informed by such close study and by the views of
the President, Attorney General, and the staff of the Department of
Justice who are currently reviewing the proposal.
Question 3: Identity theft has emerged as one of our nation's
fastest growing crimes. The Federal Bureau of Investigation has
estimated that 350,000 identity theft crimes occur annually. And the
number is growing.
If confirmed, how would you envision the Department of Justice's
role in combating this growing criminal enterprise?
Answer: As the statistic you cite suggests, identity theft is an
important issue affecting many Americans. This problem warrants further
study and consideration by the Administration and the Department of
Justice. If confirmed, I would welcome the opportunity to work closely
with you to ensure that the necessary research and consultation is done
to develop strategies for combating this crime.
Question 4: In some particularly distressing cases of identity
theft, victims not only have their identities stolen, but then have
crimes committed in their names by identity thieves. Victims then have
to deal with having to clear their records of mistaken arrest warrants
and convictions. I have asked the Department of Justice for assistance
in developing a mechanism for clearing the records of identity theft
victims from false charges.
Will you ensure that the Department of Justice actively works with
Senator Kyl and myself to assist these victims?
Answer: Yes, I most certainly will.
Question 5: For a host of reasons, the nexus between the activities
of foreign terrorist organizations and U.S. criminal law has become
closer. In many cases, information of investigative or evidentiary
value in a U.S. criminal investigation is also of intelligence value.
How do you foresee ensuring that the Department of Justice works
closely with the Intelligence Community to address this issue?
Answer: The Attorney General has stated that combating terrorism is
a high priority for the Department of Justice. I understand that the
Office of Policy Development has traditionally performed a coordinating
function among various components of the Department and among federal
agencies on important issues of criminal justice. If confirmed, I would
take direction from the President and the Attorney General to ensure
that this important role is fulfilled in a manner that best advances
efforts to prevent, investigate, and prosecute cowardly crimes
perpetrated by domestic and international terrorists.
Question 6: In some instances, the ability to share information
with the Intelligence community is limited only by the ability--or
inability--of law enforcement to recognize intelligence information and
know to whom it should be given.
Will you work to see that prosecutors and investigative agents have
the training and resources to allow them to do this?
Answer: Yes, if I am confirmed.
Question 7: In other instances, statutory limitations restrict or
condition the ability of law enforcement officials to share
intelligence information even if they recognize it as such (for
instance, Grand Jury information and information gathered under Title
III wiretap authority). There are reasons for these limitations, but
some have argued that changes need to be considered.
Do you have plans to review current statutes to determine whether
they should be revised?
Answer: Although I have not considered this issue carefully, I
welcome the opportunity, if confirmed, to work with you and others to
undertake necessary and appropriate review of relevant statutes,
regulations, and practices.
Question 8: In 1999, the Senate passed my amendment to ban the
importation of large capacity ammunition feeding devices. Domestic
manufacture of these devices is already prohibited, but millions have
been approved for importation over the last few years.
Would you support this legislation?
Answer: I have not had the opportunity to study carefully the
proposed legislation and to solicit the views of others in the
Department and the Administration. Without such review and
consultation, it would be improper for me to adopt a policy position on
the measure. I welcome the opportunity, if confirmed, to study this
issue further and to work with you and others on this matter.
Question 9: Although .50 caliber sniper rifles can kill a person
more than a mile and a half away, can penetrate light armor and even
take down a helicopter, and these weapons are not generally suited for
sporting purposes, private possession of these weapons is becoming
common and is no more regulated than the possession of a .22 hunting
rifle.
I have introduced legislation that would classify these guns under
the National Firearms Act, which currently regulates the possession of
machine guns and sawed-off shotguns, and it is my understanding that
the Treasury and Justice Departments have endorsed this idea in the
past. Will you continue this support?
Answer: Although I have not had the opportunity to study this issue
or the specific legislation, I welcome the opportunity, if confirmed,
to work with you on the matter.
Question 10: As you are undoubtedly aware, in United States v.
Emerson, a lone federal judge in Texas held that a provision of the Gun
Control Act prohibiting certain domestic violence offenders from
possessing a firearm violates the Second Amendment. The Department of
Justice has appealed this decision on the grounds that the Second
Amendment does not confer an individual right to keep and bear arms.
This appeal relied on well-settled law going back many decades. In
fact, since the Emerson decision itself, several federal courts of
appeal, including the conservative Fourth Circuit, have declined to
strike down provisions of the Gun Control Act on Second Amendment
grounds.
My understanding is that OPD supported the Solicitor General's
decision to appeal the lower court decision in Emerson and was heavily
involved in the development of the Gun Control Act provision in
question. If you are confirmed, will you commit to support the
Department's longstanding view that the Second Amendment does not
create an individual right to bear arms and that existing federal
regulation of firearms is constitutional?
Answer: Although my academic and professional career has not
involved substantial consideration of Second Amendment issues, I agree
with the Attorney General that the Second Amendment does not prohibit
all common-sense gun control measures. I do not think it appropriate,
however, for me to comment on matters that are the subject of pending
litigation. If confirmed, I would study the issue and assist the
Attorney General in vigorously defending gun control measures enacted
by Congress whenever there is a good-faith and reasonable basis for
doing so.
Responses of Viet D. Dinh to questions submitted by Senator Durbin
Question 1: What are your views on affirmative action, and how do
you define affirmative action?
Answer: Affirmative action has many different meanings to different
people. To some, affirmative action may mean outreach or recruitment
programs, and to others, it may mean numerical quotas. I have not
endeavored to adopt or articulate a personal definition of affirmative
action. My views on governmental racial classifications were
articulated in Races, Crimes, and the Law, 111 Harvard Law Review 1289,
1294 (1998). There, I wrote: ``The Equal Protection Clause of the
Fourteenth Amendment, as interpreted by the Supreme Court, guarantees
an individual the right to be free from governmental discrimination on
the basis of race, except when racial classifications are narrowly
tailored to further a compelling governmental interest. See, e.g.,
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 228-30, 237 (1995).''
Question (b): Would you give some concrete examples of
circumstances where you believe affirmative action would be justified?
Answer: In discussing governmental interests sufficiently
compelling to justify governmental classifications on the basis of
race, I wrote: ``The classic example of such a justification is one
that seeks to remedy past violations of other individuals' right of
equal protection.'' Races, Crimes, and the Law, 111 Harvard Law Review
1289, 1295 (1998). As the Supreme Court has stated, whether particular
racial classifications are constitutional depends on a host of
contextual factors-including, but not limited to, the nature and
strength of the government's interest, the history of the applicable
jurisdiction or agency, the scope of the relevant policy, and the
availability of race-neutral alternatives. Given the context-specific
nature of the inquiry, I am unable to provide examples in the abstract.
Question 2: Can you identify any current affirmative action
programs by any state or the federal government that you believe are
constitutional?
Answer: I have not undertaken a review of current affirmative
action programs by state governments and federal agencies.
Nevertheless, the Supreme Court has stated that whether particular
racial classifications are constitutional depends on a host of
contextual factors-including, but not limited to, the nature and
strength of the government's interest, the history of the applicable
jurisdiction or agency, the scope of the relevant policy, and the
availability of race-neutral alternatives. Given the context-specific
nature of the inquiry, I am unable to identify any programs that are
constitutional or unconstitutional in the abstract, without benefit of
further study and review of factual circumstances that may arise in any
particular case.
Question 3: As part of identifying and seeking judicial nominees,
do you think it's appropriate for the President or the Attorney General
to consider the race, ethnicity, gender, or sexual orientation of the
nominee in order to promote diversity on the bench?
Answer: The Attorney General has stated that he will continue to
work to enhance diversity on the federal bench, and that judicial
positions should be equally open to people of all races, religions,
genders, sexual orientations, and marital statuses. If confirmed, I
would endeavor to help him in this mission in any way I can.
Question 4: As a constitutional scholar, do you understand what
President Bush means when he refers to ``affirmative access''? If yes,
please explain.
Answer: I understand the concept to refer to affirmative and
proactive efforts to break down official and subtle racial barriers to
ensure effective access, ``a fair shot for everyone.'' As an example,
after the courts struck down as unconstitutional the University of
Texas' racedependent admissions program, then-Governor Bush signed
legislation requiring that the top 10% of graduates from Texas high
schools be automatically accepted in any public university in Texas. As
a result of this policy, minority enrollment in Texas universities has
increased. The President has also promised to eliminate bureaucratic
regulations, such as high permitting and licensing fees, that
disproportionately hurt minority-owned businesses; to break up federal
procurement contracts to allow minority-owned businesses to compete for
such contracts or partner as subcontractors with more experiences
firms; and to reward companies that make aggressive efforts to involve
minority-owned businesses through subcontracting and mentoring
programs.