Hearing of the Senate Committee on the Judiciary - Nomination of Michael Mukasey to be Attorney General of the United States

Interview

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SEN. CHARLES GRASSLEY (R-IA): Judge, congratulations on your appointment. I had a nice talk with you in my office. I visited with you then about some issues, and I said I'd probably ask questions on those issues for the record. And so basically I'm going to stick within that guideline. If I throw you a curveball, I'll welcome answers in writing if you don't feel comfortable.

MR. MUKASEY: I will try to hit a curveball.

SEN. GRASSLEY: Okay.

One topic that's near and dear to my heart, as I told you, is the federal False Claims Act. This is a law signed by President Lincoln that was intended to recover government money lost as a result of war profiteers who sold the government faulty goods during the Civil War. It needed to be updated, and so in 1986 I passed the False Claims Act to do that.

The goals of that amendment of '86 remain just as important today or just as important as they were 150 years ago. We've recovered $20 billion of money, taxpayers' money, that would have otherwise been lost and gone forever. In fact, I think maybe the -- you know, just the deterrent effect probably has saved a lot more money than that, but you can't measure that.

The bottom line is that there's tremendous benefits to the act and to its aggressive enforcement. Unfortunately, False Claims Act has been under constant attack since President Reagan signed it in '86. Opponents have tried to gut it through work of Congress. They've tried to get the Justice Department to slow down enforcement. And they've brought lawsuit upon lawsuit to water the act down in the courts.

Well, in large measure, the False Claims Act has stood the test of time, including even challenges to its constitutionality. But the next attorney general and every attorney general needs to continue to support this law and appreciate the benefits that a vigorously enforced False Claims Act can bring about.

Judge, if you're confirmed, what actions will you take to support and strengthen the Justice Department's program to prosecute false claims cases?

MR. MUKASEY: Well, as you know, the mechanism for implementing False Claims Act charges begins initially with people who could later be witnesses, people who have knowledge of dishonest behavior, behavior that hurts the government, and they come in and file lawsuits on their own which have been sealed and sent to the Justice Department so that it can decide whether the resources of the Justice Department, after investigation, whether those resources should be put behind that lawsuit and whether that lawsuit should then be used to recover federal money and put an end to federal waste. Those are enormously important.

I had, I believe, only one such lawsuit in my tenure, but I tried to treat it with the seriousness it deserved. And the department is going to have to treat it -- also treat those cases with the seriousness they deserve. And each U.S. attorney's office is going to have to be alert to filing of such a case and to following up on such a case and to interacting with Main Justice, if they have to, to get resources to push such cases, because they result, as you say, not only in enormous recovery, but they have a great deterrent value.

SEN. GRASSLEY: I think you've answered my second question, at least the first part of it, and that is you obviously seem to vigorously support the act in its prosecutions.

I told you about some attempts to weaken it. I would hope that you would commit to not bowing to outside pressure to weaken the act.

MR. MUKASEY: I'm not going to bow to pressure from any direction to weaken the act.

SEN. GRASSLEY: Thank you. Would you pledge to work cooperatively with Qui Tam whistleblowers? I think you've answered partly that by saying you were going to consider these cases, and they had to be there for you to consider. But would you cooperate with Qui Tam whistleblowers that file false claims cases and ensure that those cases are reviewed promptly by the Justice Department and don't languish under seal? Because that's a problem we've come up against.

MR. MUKASEY: I'm going to try to make sure that they get reviewed both promptly and fairly.

SEN. GRASSLEY: Then let me ask you about a process -- about this under seal process. Would you provide Congress with regular updates on the status of False Claims Act cases, including statistics as to how many are under seal and the average length of time a case has been under seal?

MR. MUKASEY: I'm going to examine into whether statistics can be gathered. I don't know how easy or hard it is to find that out, but I think it's an important thing to find out.

SEN. GRASSLEY: Well, at least you know that's one of the problems. We need to know as long as we oversight this legislation.

A problem that the False Claims Act has encountered has been the courts placing jurisdictional hurdles on the law that clearly were not intended by Congress. For example, in the Totten case, the D.C. Circuit limited the application of the False Claims Act to government grantees -- in this -- in that case, it was Amtrak -- because the court determined that Amtrak employees weren't government employees within the terms of the act.

Earlier this year, the Supreme Court limited the definition of original source -- quote, unquote, "original source" under the act in the Rockwell International case.

Not only are these two cases contrary to the original intent of the law; they place procedural and jurisdictional hurdles in the way of the United States government and the qui tam relators who seek to recover government money lost to the fraud, thus weakening the effectiveness of the law.

In order to fix this inaccurate judicial interpretation, I've introduced S. 2041, the False Claims Act Correction Act of 2007, with several of my Judiciary Committee colleagues. I've asked the department to commit -- to comment on this legislation. However, Judge Mukasey, I want to hear from you that you'll support my efforts to ensure the False Claims Act is clarified to meet its original goals of the '86 amendment. So would you agree to work with me to fix these negative interpretations of the False Claims Act, and to bring court cases back in line with the intent of the '86 amendment?

MR. MUKASEY: I will certainly work with you to do whatever we can do to make sure that the qui tam legislation is enforced the way it was meant to be enforced.

SEN. GRASSLEY: This next question on the same point is easier to answer. Could we get a kindly comment from the Justice Department on S. 2041 after you're sworn in?

MR. MUKASEY: Obviously I'm going to have to find out where in the Justice Department that particular measure is. But I will find it out, and let's see whether we can get a timely comment, because that's necessary.

SEN. GRASSLEY: When we met in September, we discussed my congressional oversight efforts and how I take that constitutional responsibility seriously. Oversight is a critically important part in helping to make government more transparent, more accountable, more effective.

Everyone benefits from congressional oversight, and more importantly, oversight lets the American taxpayers understand what their hard- earned money is buying or may be being wasted, as I just gave a speech on the Senate floor in regard to the GSA on this very issue.

So I hope that you appreciate the role Congress has in conducting oversight over the activities of the executive branch, including your own department. I trust that you will be responsive to my oversight activities, and I expect that my questions and document requests will be answered in a timely and complete fashion.

Judge, do I have your assurances that you will assist in my oversight activities, be responsive to requests not just from me but from Congress as a whole, help me to make the Justice Department more -- more accountable to the American people? And I'm not asking of your department anything I would ask of any department head.

MR. MUKASEY: You have that assurance.

SEN. GRASSLEY: As part of my ongoing oversight efforts with the department -- meaning your department -- and its subordinate agencies such as the FBI, I have made extensive document requests and requests for interviews with agents and attorneys. Oftentimes, these requests for interviews are rebuffed and my requests for documents are delayed due to the lengthy process of, quote-unquote, "internal clearance" at both the agency and the department. And obviously those two words, "internal clearance," remind me of nothing but a stonewall.

One noteworthy example among many others is a document request to the FBI for unclassified -- I want to emphasize, unclassified -- e- mails related to the (issuance ?) of exigent letters in connection with the use of national security letters. Although I sent this request to the FBI director on March the 19th, 2007, I've got nothing so far, despite assurances from the FBI officials to my staff that they were given, quote, "Given to the department" -- again, that word -- "for 'clearance,'" end of quote. Another stonewall. I guess it's like saying, Mr. Mukasey, can you "tear down that wall"? (Laughter.)

But anyway, waiting over seven months for unclassified e-mails to such an important oversight matter is unacceptable. I am concerned that both the FBI and the Justice Department clearance hinders the oversight process and may be just another tactic to slow down congressional oversight.

So, Judge, will you commit to ensuring that my document requests to both the department and subordinate DOJ agencies, including the FBI, are fulfilled in a timely manner and do not languish in the clearance process or aren't going to be stonewalled?

MR. MUKASEY: I'm going to assure that there isn't going to be any stonewalling. I ought to point out, though, that as to -- in particular as to the NSL issue, there are ongoing investigations there. There's been an investigation by OIG, but there's more investigating going on, as I understand it, and that may be part of the reason why it's not quite as easy as it may seem to clear matters, because that investigation has to be pursued. But I will certainly look into what the requests are and whether the information can be provided in some convenient form that doesn't in some way step on the ongoing investigations.

SEN. GRASSLEY: Well, it seems to me like, in the words of the department, it was -- or in the words of the FBI, it was given to the department for clearance; it seems to me like at least we should have been told, you know, if that's what's holding them up. We've been told nothing.

Judge, will you review the clearance process at the -- this may even be more important -- if we can get -- if there's something screwy about this clearance process -- to ensure that it's not just a way to put up roadblocks and further delay production of documents to Congress?

MR. MUKASEY: We're certainly going to review the clearance process to make sure that it is in fact a clearance process and not simply a black hole.

SEN. GRASSLEY: Will you ensure that my outstanding -- well, you've answered that. Judge Mukasey, I've been an outspoken advocate for whistleblowers because I value their candid, unfiltered information that they provide to Congress about executive branch activities.

At the Justice Department, I've watched carefully the treatment of whistleblowers by the FBI and have been provided assurances that past practices of retaliation against whistleblowers are over. This includes assurances that the FBI has been working to ensure integrity within the Office of Professional Responsibility, which itself has had internal problems such as retaliation against FBI whistleblowers.

One, could you please address what safeguards you would put in place to ensure that all FBI whistleblowers are not subject to retaliation, be it whether it's the OPR or elsewhere within the FBI or the Justice Department?

MR. MUKASEY: I think I will talk to Director Mueller about the way in which the FBI deals with complaints, and make sure that those complaints get a fair hearing and that the treatment of people who bring complaints can in no way be characterized as retaliation, that those people ought to be -- people ought to be encouraged to come forward. There should be a designated person to whom they come forward, and that they should be protected.

SEN. GRASSLEY: If you keep making that statement within the Justice Department, you'll find out a lot of things that are wrong. But you'll find out also that there's a lot of retaliation. But you might discourage a lot of that retaliation, so I appreciate very much your comment.

I've learned that the FBI and the Justice Department Office of Inspector General have been using an overly broad non-disclosure form. And I think that this was supposed to -- this is what I'm talking about here, and my staff will bring that to you. Let me start over again.

I've learned that the FBI and the Justice Department Office of Inspector General have been using an overly broad -- my time is up.

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