Hearing of the Senate Judiciary Committee - Preserving the Rule of Law in the Fight Against Terrorism

Statement

Hearing of the Senate Judiciary Committee - Preserving the Rule of Law in the Fight Against Terrorism

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SEN. SHELDON WHITEHOUSE (D-RI): Thank you, Mr. Chairman.

I have two questions, Mr. Goldsmith. One relates to the famous, or infamous, night at the hospital that Senator Schumer has brought to the world's attention through the testimony of Deputy Attorney General Comey, and it has to do with some of the individuals who were involved that night and how they reacted.

You've described in your book Deputy Attorney General Comey as a seasoned prosecutor, who thinks clearly in times of crisis, who possesses a keen sense of proportion that is the mark of good judgment, and who was, you said, the most levelheaded person I knew in government.

Those are --

MR. GOLDSMITH: That's my belief.

SEN. WHITEHOUSE: And Bob Mueller was also engaged in the activities that night. I view him as -- of similar stature and nature. Do you also?

MR. GOLDSMITH: Yes sir, I have great admiration for Mr. Mueller.

SEN. WHITEHOUSE: So here you have a couple of serious, cool, calm, collected, experienced grownups and the way they reacted that night, was for Deputy Attorney General Comey to rush to the hospital with his emergency lights on -- I think you said it was the only time he'd used his emergency lights to get any place during the time he was deputy attorney general. He testified to us that he took the stairs at a dead run.

At the same time, the director of the FBI was calling the FBI agents guarding the attorney general of the United States to say, don't leave them alone in the room with the attorney general, referring to the White House counsel and the White House chief of staff, don't let them throw the deputy attorney general out of the room as if he had to sort of countermand.

There is a sense of urgency and almost emergency that those actions display that I -- where does that come from?

MR. GOLDSMITH: The sense of urgency on behalf of Mr. Comey and Mr. Mueller?

SEN. WHITEHOUSE: Yeah.

MR. GOLDSMITH: I think --

SEN. WHITEHOUSE: You were close to that situation. What was it that --

MR. GOLDSMITH: Sure. I think fundamentally --

SEN. WHITEHOUSE: -- made them run and calling FBI agents to --

MR. GOLDSMITH: Fundamentally, I'm just going to tell you what Mr. Comey said in his testimony, and that is, as Mr. Comey said in his testimony, he worried that in this hugely important, highly consequential area that had been subject of months and months of work inside the justice department, he worried that, as he put it, that the White House was going to take advantage of a very sick man.

And with regard to this, you know, extraordinarily important issue that -- in ways that seemed inappropriate and just baffling, frankly, that's all I can say.

SEN. WHITEHOUSE: Meaning what? What do you mean, take advantage of? I mean --

MR. GOLDSMITH: I just --

SEN. WHITEHOUSE: -- this is the levelheaded guy you saw in government.

MR. GOLDSMITH: Right.

SEN. WHITEHOUSE: He is climbing the hospital stairs at a dead run --

(Cross talk)

MR. GOLDSMITH: Right. I think that they thought that they were going to try -- that Mr. Comey believed has turned out to be the case; that the White House is going to try to get the incapacitated attorney general to approve this program.

I'm sorry, I didn't understand the question. Is that the -- an answer to your question?

SEN. WHITEHOUSE: I think so. I'm trying to get the kind of the flavor of the evening that dictated --

MR. GOLDSMITH: It was quite an evening.

SEN. WHITEHOUSE: -- that level of urgency and activity. I mean, the deputy attorney general deals with significant urgent matters all the time but only once did he put on his emergency beacon, only once did he --

MR. GOLDSMITH: This is a hugely important issue inside the government, that's all I can say. It was a hugely important issue independent of the hospital.

Hugely important, hugely consequential issue for everyone involved and the stakes were enormously high and on the top of that, there was this attempt to go see the attorney general, and I think that's the background that led him there at such a quick pace.

SEN. WHITEHOUSE: So is it fair to say that the deputy attorney general and the director of the FBI felt that something so nefarious would happen if the White House counsel and White House chief of staff were left alone with the incapacitated attorney general, that it militated taking the stairs at a dead run and racing through Washington with emergency lights on?

MR. GOLDSMITH: I can't speak for Mr. Mueller as much as I can for Mr. Comey, because I spent a lot more time with him, and I shouldn't speak for either one actually but I'll both say that -- certainly, as Mr. Comey said, I believe in his testimony. It was thought to have been extremely inappropriate.

SEN. WHITEHOUSE: I'm sorry, say it again?

MR. GOLDSMITH: That was thought to have been extremely inappropriate.

SEN. WHITEHOUSE: Turning to the Department of Justice for a minute. In your testimony, you talk about the powerful internal norms of detachment and professionalism that help guide OLC. You identified a number of practices that existed to help OLC avoid errors and to compensate for the fact that its opinions are not subject to the same critical scrutiny of adversary process and dissent that characterizes the judiciary.

And you indicated that had these norms and practices been followed, OLC would have avoided some and perhaps most of the mistakes that it made. And you recommend that presidents and attorney general should insist that OLC follow its traditional norms and practices even in times of crises.

It is my sense, from my experience with the department, that this whole concept of the department's internal norms and practices is not unique to OLC. Indeed norms and practices to protect the department's integrity and protect its independence pervade the department. Do you agree with that point?

MR. GOLDSMITH: Certainly, yes, sir. Absolutely. I mean, I was talking about the thing I had most experience of, which is OLC. But that's absolutely true in my experience with the department more generally.

SEN. WHITEHOUSE: Now it's my sense from what we have seen out of the department recently is that not just in OLC but throughout the department, a lot of those norms and practices have been bypassed, degraded, rewritten, ignored, and that it would be a very healthy exercise for the department now under new leadership to go through and assess those norms and practices, and see which ones have been degraded, and restore them a little bit.

I've used the example before, if a ship runs aground or catches fire, the first thing that the captain does is stop the water coming in and put out the fire. But the next thing is to call for damage report.

And I'm wondering what your thoughts are and whether the department should do a fairly thorough scrub of the norms and practices to see which ones have been either violated or degraded or written out of practice, and restore them so that -- you know, a systematic assessment of this.

MR. GOLDSMITH: It's a good question, sir. Let me say two things in response. First, I think that, boy, the lessons that we've learned in the last six years is -- just to reiterate what I said in my statement, this is crucially important to the Office of Legal Counsel.

And second of all, I do think it would be, I mean, certainly, a prudent practice for the new attorney general to examine these norms and practices, and see which ones work and which ones haven't worked, and which ones aren't being complied with. I think -- I think it's absolutely crucial to the proper running of the department.

SEN. WHITEHOUSE: Great. That's helpful. I appreciate it. Thank you Mr. Chairman.

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SEN. WHITEHOUSE: Thank you chairman. Mr. Goldsmith I just had one other question that I wanted to go over with you. It comes from your book, and it connects back to the conversation that you just had with the distinguished ranking member, Senator Specter, related to the torture standard of pain equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.

As you point out, that was an unfamiliar legal framework. Could you tell us where it was adopted from? I'm not going to get the details of this exactly right. I could look in my book and get it. But it came from a health care benefit statute, and it was designed, if I recall, to -- I might not get this exactly right, to try to define the circumstances under which it was an emergency situation warning health care benefits. Is that right? I think that's right.

MR. GOLDSMITH: I think that's right.

SEN. WHITEHOUSE: Completely unrelated to the historic norms --

MR. GOLDSMITH: It wasn't related to the torture statute. Now, you know, usually -- I think I don't know, but I think with the lawyers who were doing that, they looked around the U.S. code to try to -- severe pain, the phrase severe pain is very hard to -- it's very hard to figure out what that means in the abstract.

So I think it was okay to look around in other parts of the U.S. code. I don't think that was the best analogy.

SEN. WHITEHOUSE: Indeed, the pain accompanying serious physical injury such as organ failure or impairment of bodily function or even death would presumably be a level of pain greater than that applied with for instance, cigarette burns, which was one of the, you know, sort of in the bad movies of my childhood, and how people were tortured and tormented by evil doers.

But clearly, being burnt with cigarettes would not be equivalent to organ failure or impairment of bodily function or death. So it left a pretty broad window for things that -- I think the average American would consider to be abusive.

MR. GOLDSMITH: This is one of the concerns I have with the opinion, sir.

SEN. WHITEHOUSE: All right. Well, I will not keep you longer. I appreciate very much your testimony. You and I probably disagree about a great number of things, but what has impressed me about your testimony, what has impressed me about your book, what has impressed me about your service, is that, you very clearly see the law as a thing that has substance, and shape, and form, and significance.

And it's not just to you a big grab-bag of terminology that you pull out in order to achieve the result that you want, and I think, if more people thought that way, we would have less disagreement, and more productive legislation and government, both.

So I thank you for that, and I thank you for your testimony. I would like to ask that the record stay open for a week to accommodate the questions for the record that you were asked, that you could give the answers then within a week? Is that reasonable?

MR. GOLDSMITH: I've got to --

SEN. WHITEHOUSE: More?

MR. GOLDSMITH: Can I have a little bit more time please. I've got a very busy --

SEN. WHITEHOUSE: Take -- you tell me.

MR. GOLDSMITH: A couple of weeks please.

SEN. WHITEHOUSE: Three weeks.

MR. GOLDSMITH: Thank you.

SEN. WHITEHOUSE: Okay. There it is.

MR. GOLDSMITH: Thank you. Thank you --

SEN. WHITEHOUSE: We're adjourned.

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