Nomination Objection

Floor Speech

Mr. COTTON. Madam President, our Founders designed a constitutional government powerful enough to defend against all threats, foreign and domestic, yet safe enough itself not to threaten our liberty. The separation of powers is a primary feature of our Constitution. Our Founders knew that encroachment by the executive onto the legislature, or vice versa, isn't only a political dispute but ultimately a threat to the freedom of all Americans. Thus they provided both branches with checks and balances to prevent such encroachment.

Late last week, we learned shocking news. Armed agents of the executive violated the law to intimidate a Congressman from doing his job.

This is exactly the kind of encroachment against which our Founders warned. The executive hasn't yet acted with anything like the gravity this matter deserves. Until it does, I intend to use the powers of my office to demand action and to protect our constitutional order.

Let me say more about the shocking news. In an inspector general report issued last week, we learned that dozens of Secret Service employees illegally accessed the personnel file of Representative Jason Chaffetz. More than a decade ago, Congressman Chaffetz applied to the Secret Service; he was not hired. Now he is the chairman of the House Oversight and Government Reform Committee.

In late March of this year, the committee held an important oversight hearing into a serious misconduct by Secret Service agents. Mere minutes into the hearing, an agent at the Secret Service's Washington office illegally searched the Service's database, which contains all manner of criminal, security, investigative, personnel, and other data. The agent discovered Congressman Chaffetz's old job application. This search was a blatant violation of the Privacy Act, about which the computer-based system explicitly warns on a prompt screen. The agent admitted conducting the search simply out of curiosity, presumably because Congressman Chaffetz was conducting an oversight hearing.

Far from an isolated incident, word quickly spread throughout the Secret Service, and 45 employees accessed Congressman Chaffetz's records over the next week on 60 different occasions. These employees were located around the world, from London to Sacramento, in multiple headquarter offices, even on Bill Clinton's protective detail. The inspector general could identify only four instances of potentially legitimate access. Moreover, the inspector general concludes that the information was shared with hundreds of people--each a violation of the Privacy Act.

Some employees realized their mistake and self-reported to their supervisor, according to the inspector general. While these employees indeed made a serious mistake, at least they owned up to it. Others remained defiant, saying they didn't read the warning banner or even claiming a right to satisfy personal curiosity because the personnel files are ``our database.''

Let me state for the record my admiration for the vast majority of Secret Service agents, officers, and other professionals. We saw their professionalism on display again last month during Pope Francis's visit and at the U.N. General Assembly. They are dedicated professionals who risk their lives to defend our Constitution and laws. Indeed, Secret Service whistleblowers aware of this situation helped to initiate the inspector general investigation. Like the soldiers with whom I served in the Army, the upstanding men and women of the Secret Service want to get rid of their bad apples more than anyone.

Unfortunately, the senior leaders at the Secret Service once again failed their people. The inspector general identified 18 supervisors who knew or should have known of the illegal searches and disclosures. With but one exception, the inspector general found no evidence that these senior managers reported the matter up the chain of command or took steps to stop or remedy it.

These leadership failures went all the way to the top. One example is Deputy Director Craig Magaw. When briefed by a subordinate, Mr. Magaw reportedly ``made a shooing hand motion and stated `Yeah, yeah we know.' '' Despite the gravity of the allegations, Mr. Magaw apparently took no steps to learn more or stop the illegal activity, and he claims not to recall this exchange.

Another example is Chief of Staff Michael Biermann, whom the inspector general characterizes as the de facto gatekeeper for Director Joe Clancy and Deputy Director Magaw. Mr. Biermann admits to hearing rampant rumors about the Chaffetz matter within 24 hours of the hearing. Yet he also apparently didn't inquire any further to learn the truth or take action to stop illegal activity.

The most egregious example of leadership failure in the inspector general report is Assistant Director Ed Lowery, the head of training for the Secret Service. Mr. Lowery wrote in this email about Congressman Chaffetz, ``Some information that he might find embarrassing needs to get out. Just to be fair.''

Lo and behold, 2 days later, a news Web site ran an article--unsourced--about Congressman Chaffetz's decade-old job application to the Secret Service. I wonder who the source could have been. For that matter, I wonder if this kind of attitude from the head of training explains some of the Secret Service's recent struggles.

There is even more egregious behavior not in the inspector general report. Thanks to a Friday afternoon news dump, we now know that Director Joe Clancy himself both knew of the Chaffetz matter at the time and misrepresented the facts to the inspector general. In the report, Director Clancy states he didn't learn about the matter until a week after the congressional hearing, on the eve of a Washington Post story about the matter. As we have seen, this would have made him a notable exception among the Secret Service's top leaders. But Director Clancy, confronted with this report, is now singing a different tune. He now admits that he heard of a ``speculative rumor'' the day after the hearing and a week before the Washington Post story. Yet Director Clancy says he considered the rumor ``not credible'' and ``not indicative'' of wrongful conduct. That admission alone is a damning and ironic confession of a gross leadership failure.

Let's put this in context. Director Clancy was specifically hired just months earlier to clean up the Secret Service's leadership culture after a string of embarrassing incidents. At the very congressional hearing that started all of this, Director Clancy testified that he was ``infuriated'' that he hadn't been made aware of the latest security lapse. He further testified that he was ``working furiously to try to break down these barriers where people feel they can't talk up the chain.''

Despite all that, despite all the problems he was specifically hired to fix, despite hearing rumors that obviously should have triggered immediate investigation, he did nothing for a full week to look into the matter and put a stop to it, which he only did once the story hit the Washington Post.

How could this happen? How could someone hired to change the culture of his agency be so indifferent to potential illegal activity and to such a constitutional affront to the legislature that he did nothing--absolutely nothing--until the press broke the story? To make matters worse, Director Clancy misrepresented all of it to the inspector general until the report was released last Wednesday. If anything remotely like this happened in the Army, commanders would have been relieved of command months ago. The Army holds its leaders responsible for everything their unit does and fails to do, and we should expect no less from the Secret Service leadership.

Jason Chaffetz and I served together in the House. He is a tough, smart guy, more than capable of standing up for himself, although I should say this is not a partisan matter. I would feel the same way and give the same speech if Secret Service employees violated the law to intimidate Representative Elijah Cummings, chairman Chaffetz's Democratic counterpart. Of course, for that matter, how do we know they didn't? But since I am neither in the House any longer nor on the committees that oversee the Secret Service or Homeland Security, why am I so outraged by the Secret Service or Homeland Security? Why am I so outraged by the Secret Service's misconduct in this matter?

First, if Secret Service personnel will violate the law to intimidate and retaliate against the chairman of their oversight committee, what might they do to a normal Arkansan, to the little guy who doesn't have Chairman Chaffetz's megaphone and position of influence? What might renegade bureaucrats in other agencies do?

Second, these abuses are far more than yet another example of government misconduct; they strike at the heart of our constitutional order. Although troubled by Secret Service lapses like the Colombian prostitute scandal, I haven't spoken out on these matters, believing my peers on the oversight committee could handle them, as they did. This case, though, goes far beyond simple misbehavior, even beyond violations of law. To reiterate, armed agents of a paramilitary law enforcement agency violated the law to intimidate the Congressman charged with oversight of that agency.

The gravity of this scandal hasn't thus far been met with appropriate action from the highest levels of the executive branch. Secretary of Homeland Security Jeh Johnson stated last week that he is ``confident U.S. Secret Service Director Joe Clancy will take appropriate action to hold accountable those who violated any laws or policies of this Department.'' This response is woefully inadequate on multiple counts.

First, when an abuse of power strikes at the heart of our constitutional order, it warrants at a minimum the attention of a Senate-confirmed department Secretary.

Second, Secretary Johnson implies there may be some doubt about whether laws were broken. In fact, the inspector general identified no fewer than 56 instances of blatant illegal activity.

Third, Director Clancy cannot be trusted to handle this matter given what we know now, although, to give Secretary Johnson the benefit of the doubt on this count, he issued this statement before Director Clancy's Friday afternoon admission of misrepresenting the facts to the inspector general.

Responsibility for a constitutional confrontation such as this calls for a Presidential response. Yet President Obama has been silent. His spokesman last week acted as if an apology was enough and implied that it was really just a matter of procedures not being followed--as if there are appropriate procedures for the executive to violate the law to intimidate a Member of the legislature. He even suggested that the response thus far ``is a strong indication that there is effective leadership in place at the Secret Service.'' Effective at what, one must ask?

This indifferent response is far short of what this situation demands. First, Secretary Johnson must take appropriate disciplinary action against all Secret Service personnel involved, including Director Joe Clancy, Deputy Director Craig Magaw, Chief of Staff Michael Biermann, and Assistant Director Ed Lowery. I invite Secretary Johnson to brief not only me but the entire Congress. Once he makes his decision about appropriate action--for instance, firings, revocation of security clearances, removal from supervisory positions or suspension--he can explain his own reasoning. Congress can then decide whether this discipline is adequate. Most immediately, if it turns out that Director Clancy knowingly misled the inspector general, he should resign or be fired. He was hired to clean up wrongdoing at the Secret Service, not perpetrate it and cover it up.

Second, and independent of workplace discipline, the Attorney General must start a criminal investigation of the Secret Service personnel who unlawfully accessed Congressman Chaffetz's personnel file and who disseminated its contents. Criminal violations of the Privacy Act and other statutes must be punished.

The inspector general lacks criminal authority, and it is unclear from his report if he was able to take certain key steps, such as obtaining personal emails and phone records. Further, Secret Service officials sat in many of the interviews the inspector general conducted, raising genuine questions about improper influence in the process. What is needed is a vigorous and disinterested criminal investigation by a single Federal prosecutor at the Justice Department.

Senators often make requests for action from the executive branch, which are almost as often ignored. Let me say for the record that these aren't requests; these are demands. They are quite modest demands, given these most serious constitutional stakes. Take and explain appropriate disciplinary action and start a criminal investigation.

Until then, I will be compelled to act by exercising our constitutional authority over executive branch nominations. Every officer of the United States, from the President to the newest clerk, must understand that Congress will fend off this kind of executive encroachment and there will be severe consequences for attempting to intimidate the people's elected representatives or obstructing us from doing our jobs.

I am not yet at the point of calling for a total blockade on all executive branch nominations, although I may reach that point. Right before this speech, though, I did register an objection to three prominent political nominations and there will be more to follow if the executive branch doesn't act swiftly. None of these are nominees to the Department of Homeland Security, partly because the Department has no pending nominees but mostly because this is a constitutional question, not a parochial matter about a single department.

I take this step reluctantly and with no particular quarrel with these three nominations or future ones to which I might be compelled to object. I do not wish to prolong this dispute, only to defend our constitutional order. When President Obama and Secretary Johnson take appropriate action, I will likewise take action and release these and future objections. I hope our two branches can resolve this confrontation quickly and in keeping with our constitutional traditions. The American people deserve no less.

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