LEAHY: I want to get to one important matter held over from our last meeting. I want to vote on the authorization of subpoenas for Mr. Rove, Ms. Miers and Mr. Kelley.
If there is not a objection, those in favor of having those subpoenas say aye.
SPECTER: Mr. Chairman?
LEAHY: Senator Specter?
SPECTER: Before you move to that order of business, there are some comments which I would like to make.
SPECTER: I can count the votes, as I said last week, on the subpoena issue as to members of the Department of Justice. And with respect to the subpoenas for the White House officials, again, I can count the votes and understand that they will be approved.
But it is my urging that we not move forward to have a confrontation with the president on this issue. And I say that because of the importance of getting at the underlying facts so that we can deal with a very serious problem which confronts the administration of both criminal and civil justice in the federal courts.
We have 93 U.S. attorneys in the country. And they have been asked to resign. And every U.S. attorney has to be subject to a chilling effect from what has gone on in Washington, as to whether the U.S. attorneys who were asked to resign -- whether that was done properly or improperly. ...
We have had a proposal by the president. And I would like to see us move -- as I've talked to you, Mr. Chairman, on a number of occasions -- to see if we can't make a counterproposal which will be acceptable.
Frankly, it looks difficult, with Tony Snow quoted in this morning's paper as saying that the offer is off the table since it hasn't been accepted. ...
I would prefer to see an open session. I think the American people are very concerned about what's gone on. I think that people have a right to know. And I would like to see an open session.
I don't want to be in concrete on anything. I want to try to get it resolved. There are precedents for having a closed session.
As to the issue of a transcript, I think it is indispensable that there be a transcript so that we know what has been said. If we don't, then senators will walk out of the room and in perfectly good faith will have different versions as to what occurred. And that is highly undesirable.
With respect to an oath, here, again, that would be nice, but I do not think indispensable. And the reason I say that is because the penalty for false information under 18 USC 1001 is five years; the same as it is for perjury. There have been a lot of successful prosecutions for giving false information. And we can proceed on that basis with the same leverage that we could with an oath.
LEAHY: You know, I find much to agree with, as I often do, with the senator from Pennsylvania. ...
I also take the president and Mr. Snow at their word.
They said it was a take-it-or-leave-it offer. The president said they'd have to be -- whatever testimony there was, it would have to be limited and one time only, behind closed doors, no transcript, limited number of people there.
That is not what the American people want. I have suggested there be a regular hearing, where both Republicans and Democrats ask questions, under oath; the American public make up their mind.
The president has said it can only be, and the only thing he would accept -- and Mr. Snow said this again yesterday -- the only thing they would accept -- they would not consider anything else -- the only thing they would accept is if the Senate did exactly what they told them to, which would be closed door, limited number of people, limited agenda, no oath and no transcript, so nobody knows exactly what happened.
He said that is the only thing that would be acceptable to them. So there's really nothing to look for for a compromise, because that is not acceptable to me.
I want it open. I want people to notice it. I want both Republicans and Democrats to be able to ask questions. I have had enough of these closed-door meetings. We've had them up here, where they come up and tell you one thing one day. Two days later, in the press, we find -- oops, that wasn't what the real story was. And then they call up and say, "Oh, yes, I guess we left some key things out or we were misleading; could we have another one of those private meetings?"
I'm tired of that.
SPECTER: Two questions, Senator Leahy.
Question number one is: Will this investigation be best served by finding out what we can now, as opposed to litigation which will take more than two years? And question number two, related to question number one: If we don't like what we get, we can always issue a subpoena and move with the subpoena if we don't like what we get.
LEAHY: That's not...
SPECTER: Why not take what we can get, in the interest of finding out...
LEAHY: No. What we're told we can get is nothing, nothing, nothing. We're told that we can have a closed-door meeting with no transcript, not under oath, limited number of people, and the White House will determine what the agenda is. That, to me, is nothing.
KENNEDY: Could the senator yield for a question? ... Could I just hear what the senator from Pennsylvania is proposing? ...
You've recognized the responsibility the committee has, in terms of oversight. You've also said that you support a transcript. You've also indicated -- in an open hearing -- you also said that they don't have to be under oath because it's a crime not to be honest with the -- or not to tell the truth to the Congress.
What is your particular proposal, that you think can get the information here?
We have the one option which has been outlined by the chair.
What is your particular proposal that you're suggesting now, to be able to achieve what I think the chair has said, and that is to get to the factual situation about -- and meeting our own oversight responsibility, and that's to get to the factual situation as to what the Justice Department has been doing?
SPECTER: My proposal is that we have a proceeding which has a transcript, that it be an open proceeding, that the witnesses not be called upon to be under oath because the penalties are just as severe for a false official statement, that there be a limited number of members present, that we do not have to have whatever -- 40 some members of the House of Representatives question or all 19 of us question here, that we agree on a number of -- a limited number, in an orderly proceeding, perhaps six senators, perhaps eight senators, and that six or eight members of the House of Representatives, and that we engage in a discussion with Mr. Fielding, the White House counsel.
But I think if it's open, if it's transcribed, and if it's subject to the penalties of 18 1001, and we have enough people from both houses to elicit the information, that that would accomplish what we have in mind.
And I would reserve our power -- this doesn't mean we've given up our power to subpoena. If that doesn't do the job, we'll move forward with the subpoena. ...
KENNEDY: Just one last question to Senator Specter. ... [A]re you authorized to make that as a recommendation with the assurance that you have from the White House that they will accept that?
SPECTER: Do I have authorization from the president? I have my independence from the president, thank you.
KYL: The way our Constitution was set up, there was an intentional opportunity for conflict between the branches. Our founders well understood that there was a healthy tension. But they also appreciated that sometimes it could go too far.
And I've always -- one of the most interesting things about constitutional law that I studied was the restraint that a court sometimes exercises in dealing with political questions.
There's no doctrine in the Constitution that talks about political questions, but every now and then you see the United States Supreme Court saying, "You know, we could take this, we could decide it. But discretion's the better part of valor here. And rather than taking a case, let's see if we can get it resolved somehow."
Frequently, that's what happens in these rare but important disputes between the legislative and executive branch when it deals with the question of calling members of the executive branch before the Congress and exercising the subpoena power that the Congress has.
LEAHY: Senator Kyl, he's already rejected it. The president's already -- I mean, the president went on national television... and gave his word to the American people that he would accept only a closed-door meeting with no transcript, not under oath, and limited number of people. He has said that is the only thing he would accept.
And I know he's the decider for the White House. He's not the decider for the United States Senate.
If we actually even had been approached, "Is there a way we can work this out," it might have been one thing. But instead we were told, "You will do it this way or no way."
The Senate -- I've been here 32 years; Democratic and Republican administrations. I've never heard the Senate take an ultimatum like that.
KYL: As I was about to say, the chairman, being a good lawyer, has also said that he's not going to compromise. There'll be no compromise. And all good lawyers do that. You should do that going into a negotiation. ...
And I also think the point that Senator Specter made is important for all of us to realize: If the administration basically invites us to litigate this, we're not going to get facts that we otherwise would get. The matter then will be in court and it will be litigated, and it probably will take a long time.
And so, the very thing that we say that we want here, which is more information, will at least be denied to us for some period of time. ...
[W]e do need to think in the long term about not only the relationship between the two bodies, but also the damage that can be done to the encouragement of getting advice from public servants when that advice then is made public.
And given the fact that the White House is a co-equal branch of government, I think it's important for us to just stop and think for a moment about what that really means. It does not mean that in all circumstances the legislative branch can make the executive branch subservient to us by the issuances of subpoenas.
[W]hat if a federal prosecutor decided that some of this committee's actions, our decisions on whether to remove a judicial nominee or vote on asbestos, for example, had been improperly influenced, and opened up a investigation? How would we feel if our staffs were subpoenaed and ordered to turn over all of their memos and e-mails?
And if it's merely the allegation of criminality that allegedly raises this level to the point that we would issue a subpoena in this particular case, how would we feel if those allegations were made and our chief counselor grilled, and with a transcriber present, under oath, and so on?
Would we be comfortable seeing all the advice that we've received, with regard to particular bills and amendments, published on the Internet?
If the Senate can subpoena the top advisers to the executive branch, what about the remaining branch of government, the federal courts? What if there's an allegation that a judge is influenced by political motivations or politics, in his decision or her decision? Can we demand testimony from the judge's law clerks? Could we subpoena bench memoranda and early drafts of court opinions?
SCHUMER: I just wanted to make a few points here.
First, in reference to what my good friend from Arizona has said, a number of points.
First, when committees like ours issue subpoenas, it is for oversight purposes. It is to get information. It is not only or even usually for a criminal type of case. And the standard is not beyond a reasonable doubt or anything close to it. The standard is to get needed information. And that's what we're seeking to do here, nothing more. ...
[M]any, many staff people in some of these previous administrations testified under oath, in public, with a transcript. In fact, that's been what usually has happened.
And I'll just read some names: Harold Ickes, Bruce Lindsey, John Podesta, Beth Nolan. These were in the Clinton administration in comparable positions to the people that we have asked to come before us here. Lloyd Cutler in Carter, Richard Harden (ph) in Ford, of course many in Richard Nixon's administration.
So having members of the White House staff come before these committees and testify in this regard is not -- it doesn't happen very often, but it's not that it's never happened. ...
[T]o those of us on this side, the White House has left us little choice, because they've given us, sort of, an untenable proposal that doesn't get to the facts. They've said they're not willing to negotiate.
Now, maybe Senator Specter can work some miracles; he has in the past.
SPECTER: Would the senator yield?
SPECTER: You've been a party to many negotiations. Isn't the first thing that is said in negotiations is that, "Our offer is non- negotiable"?
SCHUMER: That is true.
FEINSTEIN: I strongly favor the grant of the authorization for the chairman to issue subpoenas. And I'd like to say why.
I believe if this is granted today the chairman will try to negotiate along the lines that he has suggested.
It is clear to me that we have been misled from the very beginning in this situation. To this very day, nobody knows who ordered these firings or what the reasons for them were.
The attorney general has said he knew nothing about it.
We are told we got everything we need in e-mails. There is a suspicious period of time where there were no e-mails, from around the 16th of November to the 7th of December. The belief is that that was the time the president was traveling and people wanted to get presidential approval, which apparently, some people say, came forward on December 4th.
I don't know whether that's true or not true.
I think this is a very important investigation. It's one thing to manipulate. It's another thing to manage. And there is a difference between the two.
I sat in this room, in an in-camera session with Mr. McNulty. He made the argument about performance. He didn't think we would get the performance reports. We were able to secure the performance reports. It turned out that all of the performance reports are excellent. ...
They've said we've received every e-mail pertaining to this case. I would like to enter into the record an e-mail we did not receive in any of the e-mail so-called dumps that were given.
And it's an e-mail between my office and Mr. Sampson's. ...
I began to ask questions about this in January. I was told in so many words I didn't know what I was doing. And yet everything that I've said has proven to be true.
I think there needs to be questions asked, under oath, before the full body.
LEAHY: All those in favor say aye.
I would say the ayes have it. The ayes do have it. The subpoenas are authorized.
GRASSLEY: I want the record to show that I voted "aye."
LEAHY: And the senator from Iowa, Senator Grassley, says he wants the record to show he voted "aye."
Members of the committee, let me say, I appreciate both the Republicans and Democrats on this committee who stated their feelings. I know there are several others who wanted to state more, and I hope that we'll get a chance either at a subsequent hearing or on the floor.
This is an important matter. I do not take lightly a "take it or leave it" -- a "take it or leave it" so-called offer from the White House. I'm a United States senator. I believe in the prerogatives of the United States Senate.
As I said earlier, U.S. attorneys serve at the pleasure of the president. The system of justice does not serve at the pleasure of any person in this country. It is there for all of us. That's what we're trying to protect.
We stand in recess.