Hearing of the Senate Judiciary Committee- Justice Department Nominations

Hearing of the Senate Judiciary Committee- Justice Department Nominations

SEN. WHITEHOUSE: (In progress) -- to order. My name is Sheldon Whitehouse, senator from Rhode Island. I'll be chairing this hearing. And we have with us the honorable John Larson who represents the state of Connecticut in Congress. And I will allow the congressman to say a few words on behalf of one of the nominees, and then I will make an opining statement, and then I will call the two nominees forward together to be sworn, to give their opening statements and then have such question as answer as may transpire.

So without further ado, Congressman Larsen, the floor is yours.

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SEN. WHITEHOUSE: Thank you, Congressman Larson, and I appreciate that you have made the trip -- quite a long trip it seems, from your side of the Capitol to ours to speak on behalf of Mr. O'Connor. I appreciate it.

REP. LARSON: Let's hope we can continue to close that chasm that exists there. (Laughs.)

Thank you very much, Senator. I appreciate the opportunity.

SEN. WHITEHOUSE: I am very grateful to have our ranking member, the distinguished senator from Pennsylvania, Senator Specter, here.

Senator?

SEN. ARLEN SPECTER (R-PA): Thank you, Mr. Chairman. I wanted to join in welcoming Congressman Larson and thank him for his opening remarks, and welcome the nominees for key positions in the Department of Justice -- Kevin J. O'Connor to be associate attorney general, the number three position. I thank Senator Leahy, the chairman, and you for moving ahead with these important nominations. We're trying very hard to get the Department of Justice up to full speed -- lots of important work to do.

The department had a rugged year last year, without saying anything further. Attorney General Mukasey is in charge, bringing in a new team, and we want to make the appropriate analysis here and get these people confirmed at the earliest possible time so that they can move ahead full steam.

I'm pleased to see the excellent resumes of these two nominees: Kevin James O'Connor, with honors from University of Notre Dame -- high honors, Connecticut Law School, on the Law Review -- real qualifications -- clerked for a federal judge and as U.S. attorney, and a key worked in the Department of Justice as associate deputy attorney general and chief of staff to the attorney general. So those are very fine credentials -- knows his field. Prosecuting attorney's job is something that Senator Whitehouse and I have some -- I have modest experience; he has extensive experience in the field.

SEN. WHITEHOUSE: Also modest.

SEN. SPECTER: And especially pleased to see Mr. Katsas having worked for Judge Becker -- that's an education all by itself -- Judge Becker, chief judge of the circuit -- Federal District Court from 1970 to 1982, and served on the Third Circuit until his untimely death two years ago -- a very good friend of mine and one of the great jurists in the history of the federal courts. And Mr. Katsas has a great record of Princeton cum laude and Harvard Law School cum laude, executive editor of the Harvard Law Review, and extensive experience at the Department of Justice. So it's good to move ahead with these quality nominees.

Reserving judgment, gentlemen, until we hear you testify and take a close look at your record, but it seems to me you're in very good shape.

Preliminarily let me say that I will not be here too long because there are several hundred Pennsylvanians waiting to talk to me. This is January 22nd, as you may have noted on your calendar, the date of Roe vs. Wade, which brings a large group to the steps of the Supreme Court and a large group to most senators' offices.

Thank you very much, Congressman Larson, for coming over.

REP. LARSON: My pleasure. Thank you, Senator.

SEN. WHITEHOUSE: Thank you, Congressman Larson.

Go ahead and take your seats, gentlemen.

Today the committee will hear from two witnesses: Kevin O'Connor, nominated to be the associate attorney general, and Gregory Katsas, nominated to be the assistant attorney general in charge of the Civil Division.

Mr. O'Connor is currently the United States attorney for the district of Connecticut and has previously served as chief of staff to Attorney General Alberto Gonzales and as associate deputy attorney general. Prior to joining the Department of Justice, he had an impressive career in both the private and public sectors.

The position to which Mr. O'Connor has been nominated is a vital one. The associate attorney general is the number three official at the Department of Justice, responsible for supervising a number of important offices, including the Antitrust, Civil, Civil Rights, and Environment and Natural Resources divisions.

Mr. Katsas is currently both the acting associate attorney general and the principle deputy associate attorney general. From 2001 to 2006, he served as the deputy attorney general of the civil division where he supervised much of the division's appellate work, so he is well familiar with the workings of the very important division he has been nominated to lead.

Before proceeding with the witnesses' opening statements I would like to make two observations. First, this hearing marks another important step in the effort to restore the department's credibility after the disastrous tenure of Alberto Gonzales, which ended with vacancies throughout the department's upper ranks. Indeed, the nominees before the committee today are the ninth and tenth respectively to have confirmation hearings before this committee since Mr. Gonzales stepped down -- a list which includes nominees to be attorney general, deputy attorney general, associate attorney general, and three assistant attorneys general.

I commend Chairman Leahy for his determination to help fill these vacancies so that Attorney General Mukasey can have his leadership team intact and so the department's credibility can be restored. Chairman Leahy has provided a statement that he has asked to have put into the record, and without objection the chairman's statement will be part of the record. Whether the department's credibility can be restored will depend in large part on whether these nominees are committed to operating in a manner different from the approach of the Gonzales Justice Department in which they both served.

Second, this hearing is a reminder of the vital role of congressional oversight of the Department of Justice. It was thanks to this committee's hard work last year that the American people learned of U.S. attorneys fired for political reasons, a hiring process corrupted by politics, and a policy that allowed hundreds of people at the White House to have case-specific conversations with dozens of DOJ lawyers. Attorney General Mukasey has taken preliminary steps to right the ship, but as we all know there is much more to be done, and Congress will play an instrumental role in ensuring that progress continues to be made, which brings us to today's hearing.

I look forward to the testimony of both Mr. O'Connor and Mr. Katsas. We need independent voices in the leadership of the Department of Justice -- people who will make decisions based on the law, not on politics, people who will stand up to political pressure from the White House, and people who understand and value the time- honored traditions of the Department of Justice that have helped guide it through many decades and made it great. These are the measures by which we will judge your nominations. I look forward to your testimony and call on you for your opening remarks. Senator Specter, would you like to make further opening remarks? Are you satisfied? Not yet. So you -- do you care to make any further remarks?

SEN. SPECTER: No, thank you, Mr. Chairman.

SEN. WHITEHOUSE: Will the witnesses please stand and be sworn? Do you affirm that the testimony you are about to give before the committee will be the truth, the whole truth, and nothing but the truth so help you God?

MR. O'CONNOR: (Off mike.)

MR. KATSAS: (Off mike.)

SEN. WHITEHOUSE: Please be seated. Mr. O'Connor, will you proceed first?

MR. O'CONNOR: Good afternoon, and thank you, Mr. Chairman, for number one, agreeing to chair this hearing, and Senator Specter for being here as well. I want to thank the president and the attorney general for having the confidence in me to nominate me for this very important position at a very important time. I also want to thank Congressman Larson for his kind words and efforts to be here today. I had the good fortune of having been an opponent of his at a prior election and you could probably see from his remarks why I lost and he won. He is an outstanding public servant and it means a lot to me and my family that he took the time to be here so I want to thank him as well. I'd also like to thank my family, many of whom join me here today.

SEN. WHITEHOUSE: Why don't you take a moment and introduce them, if you would? We'd be delighted to see who they are -- have you have the opportunity to introduce them to the committee.

MR. O'CONNOR: Thank you, Senator, for that. I'd introduce my wife, Kathleen, and my son, James, who's for now acting very well on her lap -- my three daughters, who are color-coordinated so we don't lose them in the room -- Erin, Annie, and Mary -- and behind them are my in-laws, Bill and Carol Plunkett, and behind my wife are my parents, Mary and Dennis O'Connor. I also have two of my brothers here today, Michael and John O'Connor, and Michael brought his sons Brandon and Michael as well. And I have numerous other friends and family from West Hartford but also from my U.S. attorney office in the department who are here as well. I will not indulge upon your time and patience by going through all of them but I want to thank them as well.

SEN. WHITEHOUSE: Well, you are all very welcome here. I appreciate that you've taken the time out of your schedules to come, and I appreciate how well the young O'Connor children are behaving. You are setting a very good example. Please proceed.

MR. O'CONNOR: Thank you. I want to be very brief in my opening statement and just simply say that it's an honor to serve. I feel privileged to have served this country and the people of Connecticut for the last five plus years as United States attorney, and should I be confirmed by the Senate I would view it as a highest honor of my professional career to continue and service in the Department of Justice. I have come over the past five years to admire and respect so greatly all the men and women of the Department of Justice -- all -- more than a hundred and thousand (sic) of them and I feel privileged every day I get to come to work and work alongside them, and so it is a deep honor to me and to my family to be here today and again, I thank this committee for moving as quickly as it has with my nomination and I thank you for your time this afternoon.

SEN. WHITEHOUSE: Mr. Katsas?

MR. KATSAS: Thank you, Senator. I'd just like to acknowledge a few people and thank a few others. First, if I may, I'd like to introduce my girlfriend, Simone Meelee (ph), who is here. She came down from New York to be with us and I'm very glad that she's here. I'd like to say hello to my mother, who is watching these proceedings on television. She's elderly and couldn't be here in person but she is watching from Jamaica Plain, Massachusetts. Also, to my sister in Newburyport, Massachusetts -- she is busy raising two small children with her husband.

I'd like to thank a few of the very many people who have helped me and supported me at various stages of my legal career. Justice Clarence Thomas gave me the incomparable privilege of clerking for him twice -- first at the D.C. Circuit and then at the Supreme Court. Timothy Dike (sp) and Glen Nager were my bosses for many years at Jones Day, and great teachers and mentors. Robert McCallum, Peter Keisler (sp), and William Mercer each gave me the high honor of serving at the Justice Department for the last six and a half years, both in the civil division and the Office of the Associate Attorney General. I'd like to thank Robert Kopp and every member of the appellate staff of the civil division. I worked with them side to side for more than five years. They are a team of fabulous, dedicated public servants and lawyers. Robert managed that staff flawlessly and I ended up getting much of the credit for his great work.

Last but not least, I'd like to thank the president for nominating me and thank this committee for giving me this hearing. Finally, I'd like to recognize two people who are no longer with us. The first is Judge Edward Becker, who gave me my first job out of law school as a clerk in Philadelphia on the Third Circuit. Judge Becker was a giant in the law but nonetheless a humble man and, as Senator Specter knows, one also beloved by everyone who had the chance to know him. He taught me so many good lessons, including that good decision- making requires hard work and a painstaking attention to detail. He died much too young but his memory continues to inspire me and dozens of other former clerks every day of our professional lives.

Finally, my father. He came to this country and lived the American dream for more than 40 years. He was a distinguished forensic pathologist in greater Boston. In his obituary, The Boston Globe described his unparalleled reputation for honesty and integrity in the testimony that he gave in court as part of his job.

I've tried to do my best to live up to those standards of honesty and integrity in my own career so far, and I would do my best to continue to live up to those standards as an assistant attorney general if I should be fortunate enough to be so confirmed.

Thank you very much.

SEN. WHITEHOUSE: (Off mike.) Thank you, Mr. Katsas.

Mr. O'Connor, you, in addition to being the nominee for associate attorney general, also continue in your position as United States attorney for the District of Connecticut, do you not?

MR. O'CONNOR: (Off mike.) That's correct. That's correct. I currently serve as United States attorney for Connecticut.

SEN. WHITEHOUSE: Do you intend to relinquish that position?

MR. O'CONNOR: I believe I would have to if I was confirmed. I don't think it's a choice, by law, and I would certainly intend to step down if confirmed.

SEN. WHITEHOUSE: Good.

I think across America people who have served in the Department of Justice are looking at this institution with real consternation but also real hope. I think, as we all know, this is a really vital, proud and important institution in the architecture of American government, and in the enforcement of American liberties and laws. And I hope it is now emerging from what probably number among its darkest days.

And I think it is very important to every member of this committee, as well as to so many thousands of colleagues who work for the Department of Justice -- and to those who have gone before you and look back with real pride and affection on their time at the Department of Justice -- to see things put right.

And I would like to hear from you why now you want to be associate attorney general, and how -- to borrow the phrase from the Hartford Courant, you will promise to help restore confidence in the Department of Justice, and stability to the Department of Justice.

MR. O'CONNOR: Senator, I think the short answer to that is, because I subscribe to the same views of the department that you just articulated. I believe that all of us in the department -- particularly those of us who serve at the pleasure of the president and are here for a finite period of time, we have an obligation to keep the reservoir of credibility as high as we found it.

These have -- are rightfully have been difficult times for the department, I agree with that wholeheartedly. I've had the pleasure of serving with some of the best U.S. attorneys in the country -- colleagues and friends, and I think we've all shared a commitment to making sure we do all we can to make sure that we leave this department as good as we found it.

And I think the opportunity to serve as an associate attorney general is an opportunity for me to do all I can in a different capacity, albeit one that will require me to be away from my family for a period of time. But when the attorney general asks you to serve in challenging times, I think for those of us who are committed to public service, it's a very difficult question to say no to.

I was asked to serve. I'm honored to serve. I, fortunately, have a family that has supported me in these endeavors, although it hasn't been easy. And I can commit to you that if I am confirmed, I will work every day -- not just with those of us who serve in this administration, but the men and women who will be there long beyond us, to do all we can to give people the confidence that this Department of Justice has to have to be effective.

SEN. WHITEHOUSE: There will be those awkward circumstances when the political desires and purposes of the administration that you serve may come into conflict with the laws and liberties that it is the department's obligation to defend. In those circumstances, how will you evaluate that conflict?

MR. O'CONNOR: Well, I will follow the law. And the law is supreme. And no job -- no job -- is more important than one's credibility and integrity. And if I ever came to such a situation -- and I truly hope and trust that I won't, but if I do, I will not hesitate to walk away, to resign, if I ever felt that I was being asked to do anything other than what's right for the department and what's right for the people of this country.

SEN. WHITEHOUSE: You served as chief of staff to Attorney General Gonzales at the time when he gave testimony before this committee that many members felt was less than candid, less than truthful. Were you involved in the preparation of his testimony before this committee while you were chief of staff?

MR. O'CONNOR: I was involved. I'm not sure what particular testimony you're referring to, but I was involved, generally, in preparing him, and enlisting others, along with the Office of Legislative Affairs, for the various oversight hearings that occurred during the time period I served as chief of staff.

SEN. O'CONNOR: The two statements that come to mind -- one was on July 24th when Mr. Gonzales stated in reference to his visit to Attorney General Ashcroft's hospital room, "The disagreement that occurred, and the reason for the visit to the hospital was about other intelligence activities. It was not about the terrorist surveillance program that the president announced to the American people."

Since then, numerous officials, including members of the so- called "Gang of Eight," who are the top intelligence -- members of the Intelligence committees on the House and Senate side, and FBI Director Robert Mueller have confirmed the disputes did, in fact, concern the terrorist surveillance program. What was your reaction when he gave that testimony? Were you familiar with the underlying situation, or were you out of the classification bubble necessary to understand that testimony.

MR. O'CONNOR: The latter. I, frankly, had no understanding. I'm not (read ?) in to the terrorist surveillance program. I never have been. With respect to that portion of his testimony, he did testify a few times, the Intell committee. I was not involved in the preparation for that because I've not been (read ?) into that program, and so I could not tell you whether or not anyone's testimony in that regard is accurate or not.

SEN. WHITEHOUSE: Okay.

The other piece of testimony was on April 19th when Mr. Gonzales testified, "I haven't talked to witnesses because of the fact that I haven't wanted to interfere with the investigation" -- the investigation being the investigation into the dismissal of U.S. attorneys. Subsequently, White House liaison Monica Goodling testified that the attorney general had, indeed, had a discussion with her, one that she found uncomfortable, in which he set out his versions -- his version of events regarding the process of firing U.S. attorneys and asked for her reaction.

Were you involved with that testimony, and what was your reaction to what the attorney general said when he testified as he did?

MR. O'CONNOR: Well, I don't think I had any reaction at the time. I don't even know if I was serving as chief of staff at that point. I believe I became chief of staff in the late -- April 26th. But I was, Senator, I know, part of the folks involved in preparing for that hearing, I believe.

At the time he answered that question I had no reason to question it. When Ms. Goodling subsequently testified, there was obviously a difference of an opinion there. I think Judge Gonzales could probably speak better than I can as to explaining that inconsistency.

I don't believe that Judge Gonzales, when he subsequently went up, denied having that conversation with Ms. Goodling. And I'm not privy, as I sit here, to exactly what the explanation was. It may have been the fact that he had just -- had not recalled it, or he didn't recall the conversation occurring that way.

SEN. WHITEHOUSE: Do you know when you first became aware of the conversation that took place between Attorney General Gonzales and Ms. Goodling?

MR. O'CONNOR: Yes, I do.

SEN. WHITEHOUSE: When was that?

MR. O'CONNOR: It was the day she testified.

SEN. WHITEHOUSE: Okay. Well, that clarifies what your reaction would have been to his -- to his testimony.

The last point I'd like to ask you about is a more specific version of my earlier question focusing in on the Civil Rights Division, which is a division that has suffered particularly in the past months and years -- embarrassing evidence of politically- motivated hirings, decrease in the division's enforcement of Section 2 of the Voting Rights Act, a DOJ amicus brief defending Indiana's Voter Identification Law which, based on all the evidence I have seen, is an effort to make it more difficult to vote, not less difficult to vote.

If confirmed, what will you do to ensure that the Civil Rights Division is apolitical and vigorously protects the right to vote? And in particular, what do you think about these state voter ID laws, which strike me as both erecting an obstacle to the right to vote and doing so in a way that particularly makes it difficult for the elderly, for minorities and for people who are at the lowest economic levels?

SEN. WHITEHOUSE: Would you agree with me with the proposition that if there are a handful of people who may vote for whom it is not appropriate that they be voting, it is not legal that they be voting, and the measure that the department pursues in order to protect against the risk of their voting discourages hundreds of people who are legally entitled to vote, who are franchised properly in this country to vote for its elected officials, the department has taken a big step backwards?

MR. O'CONNOR: Well, I would say, under those circumstances, I would like to think the department would look long and hard. Ultimately it would be the state legislature that passed the bill that had that impact. The department would have to ascertain, under those circumstances, what, if any, role to play.

Clearly I think, under those circumstances, the department would have to be very reticent to try to defend a statute if that was the impact that the statute was having. Again, it's hard for me to speculate under the circumstances, but if the goal of the statute is not being accomplished and there's a negative impact on people that the statute did not intend to cover, that's a real problem, I think, from a constitutional perspective. But I think, should an issue like that land in the lap of the Civil Rights Division, we'd obviously have to give great weight to that.

SEN. WHITEHOUSE: It may be more than just a statute that's involved. It may be enforcement policies of the Civil Rights Division that are involved.

MR. O'CONNOR: I agree. That's possible, yes, sir.

SEN. WHITEHOUSE: Okay.

Mr. Katsas, welcome.

MR. KATSAS: Thank you.

SEN. WHITEHOUSE: If you don't mind, I would ask you to embellish a little further on the remarks that you made during your opening statement that were rooted in your pride in your father's accomplishments. And bring them to bear, if you would, on the present situation of the Department of Justice, particularly in terms of its credibility and reputation for integrity, and how you see your role in the management position at the department that you are seeking in restoring that credibility and that reputation for integrity.

MR. KATSAS: As a forensic pathologist, my father's job was to ascertain cause of death and, on many occasions, to testify in court about that. He was typically a witness called by the government in the course of a murder or other prosecution. But he never viewed himself as a government witness in the sense of someone whose job it was to secure a conviction. He viewed his job as telling the facts as he determined, regardless of where the chips may fall in any particular case.

I think that kind of fairness earned him a terrific reputation over time among both prosecutors and defense lawyers who were involved in criminal prosecutions in the commonwealth of Massachusetts and served him well professionally and served him well as a human being.

As I said, I share that sense that my job as a lawyer involved in a different aspect of court proceedings is to call things as best I can and make the best legal judgments I can, whether as a litigator called upon to defend the government's position or as an adviser called upon to counsel as to what the law might require in any particular case.

One can't work in a litigating division for five years, as I have, without getting a sense, an appreciation, of that kind of ethic that runs throughout the staff, throughout the appellate staff that I supervised and the other parts of the Civil Division.

There is a wonderful honor that I've felt many times being able to go into court and say, "May it please the court, I represent the United States of America." Deputy Attorney General Comey used to say that that statement always gives one immediate credibility and makes a court inclined to believe whatever follows that statement.

But that's only true if all of us continue to do our part to preserve the traditions of fair-mindedness and integrity about which you have spoken so eloquently. And I did my best for more than five years in the Civil Division to uphold that sort of tradition. And, if confirmed, I would do my best to continue in the same vein.

SEN. WHITEHOUSE: In particular -- you've mentioned this already -- but how do you see the role of career attorneys at the Department of Justice?

MR. KATSAS: When I was the appellate deputy for the Civil Division, there was one of me -- a political appointee -- and 60 career attorneys working for me and with me. That office couldn't possible function unless there were a sense of trust and rapport and cooperation between me, as the nominal leader, and the staff, who actually did the overwhelming bulk of the work and made the overwhelming majority of the recommendations and made sure that the work got done. I think I earned their respect and developed good relationship with them. It is indispensable. In the civil division in its entirety there are probably something like half-a-dozen political appointees and 800 career lawyers. No political appointee at the top of that pyramid could possibly function without the confidence of all of the career lawyers working toward the common mission of justice.

SEN. WHITEHOUSE: I've recently had the chance to review a number of classified opinions from the Office of Legal Counsel. I've arranged that they are now -- sections of them, at least, that I have selected -- are now declassified so that we can talk about them publicly, and I've spoken about them. They concern me very much -- particularly since an OLC opinion has precedential effect and one can build on the other. And one could -- in a chain of self-created precedent -- walk the department pretty far outside of the bounds of traditional legal theory, particularly when opinions are classified and there's very little public opportunity for scrutiny and reaction to them. I'd like to ask for each of you to react to two points that I extracted from those opinions, and then I will turn to my learned and distinguished colleague from the state of Maryland, Senator Cardin, who has joined us. Here are the two propositions that I'd like your comment on. The first proposition is this: An executive order cannot limit a president. There is no constitutional requirement for a president to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the president has instead modified or waived it. My concern on that one, rather briefly, is that it allows the published executive orders of the executive branch of government to become a foil and a screen for the real activities of the government if there is never a disclosure of the president's -- to use the phrase from OLC -- modification or waiver of the executive order. I understand perfectly well that the president's free to modify -- one can act outside of one and modify it nunc pro tunc -- there is enormous and widespread executive authority. But the idea that you must never -- you're free never to come into compliance or change an executive order and simply run a classified program in violation of your own disclosed executive orders, which in many situations have the force of law, strikes me as being a trespass beyond the bounds of legal propriety. The second one's very simple: The Department of Justice is bound by the president's legal determinations. It strikes me as that is a particularly difficult proposition where the Department of Justice is called upon to do its duty, but the president -- for reasons that may have nothing to do with the enforcement of the laws of the United States of America -- may choose to have a different view, maybe as a result of his personal interests or his political self-interests. And unfortunately, in the past we have seen such circumstances. President Nixon was rather famous for saying, if the president says so, then it can't be illegal. So if you could react to those two propositions for me, I'd appreciate it. Mr. O'Connor.

MR. O'CONNOR: Thank you, Senator. I would say that with respect to the first one, I think perhaps the most appropriate way to respond is that transparency is crucial, that it seems to me always to be the best situation to act in a transparent manner. And that regardless of whether the president can or cannot deviate from an executive order, it seems to me the most prudent is when doing so to make sure that he's consulting with leaderships of the Intel communities or the appropriate committees that have jurisdictions or oversight responsibilities. So I think with respect to -- it's less important to me whether he can or cannot do that. It's really more important whether he should or should not do it. And if he does, it seems to me the best course of action would be to make sure he was consulting with the appropriate folks in Congress, so that they were aware of it. So it did not look -- I think as you said -- as a cloak-and-shield type situation. I think with respect to the separate statement about the department, I'm frankly confused by it. I don't -- it doesn't make sense to me. Obviously, I don't have the same context of the --

SEN. WHITEHOUSE: I'm so glad you had the same reaction I had.

MR. O'CONNOR: Yeah. Maybe there's a context of the classified opinion. Obviously, I haven't seen that. But the statement, in and of itself, I'm trying to figure out how that could make sense and perhaps there is a way that I'm just not sophisticated enough or knowledgeable enough to figure out. But it seems to me that the department has an obligation to call them as we see them.

SEN. WHITEHOUSE: Mr. Katsas?

MR. KATSAS: It's hard to have too definitive a view, not seeing all the context, but let me give you some thoughts based on what you've shared with us. With respect to --

SEN. WHITEHOUSE: And just for the record: I'd be delighted to tell you a lot more about those opinions. Those are the only segments that they've allowed me to talk about, the only segments that have been declassified. MR. KATSAS: Understood. With respect to the first statement on how a president can or can't change executive orders: It seems to me literally true in a sense, because the Constitution doesn't specify the procedures for making or rescinding executive orders in the way that, say, it specifies the procedures for making and rescinding statutes. So to that extent it's true. But as your comments suggest, it does seem to create a concern about notice and forthrightness -- to the extent that an executive order is a published, public document intended to convey things to the Congress and to the public about what the executive is doing. There would obviously be concerns if then the executive does something completely differently in secret without being clear about what it's doing. I can obviously understand your concern with respect to Congress's oversight interests, and a more general concern that people like to know what their government is up to. There may be occasions when there are national security or other needs for secrecy in particular cases, but I just -- I can't evaluate -- can't evaluate whether such arguments would be compelling in the context of whatever context that statement was made.

SEN. WHITEHOUSE: And the second?

MR. KATSAS: The second -- I think the important question for me as a Justice Department lawyer is, what are my obligations to my superiors up the chain of command, to and including the president? And I understand my obligations -- both as a constitutional matter within the Article II hierarchy, and as an ethical matter as an attorney charged with practicing ethically -- I understand my obligations as advising, litigating cases and advising superiors consistent with my own assessment of what the law requires.

And it is quite easy to imagine circumstances in which I, as a lawyer, think that there is only one legally defensible view to take, litigating a case as a member of the Civil Division, and someone above me in the chain of command instructs me to do the opposite.

That would put me in a terrible position. I think it would compel me to resign. I'm happy to say that in more than five years of litigating cases within the Civil Division, I was never put in that uncomfortable and unfortunate position.

SEN. WHITEHOUSE: Senator Cardin.

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SEN. WHITEHOUSE: Well, I thank you both for your service to our country. You both bring significant talents to government service, which you and your families know would be better recompensed, financially, at least, and in terms, probably, of worries taken home at night, in other areas of activity. But you have chosen to dedicate your talents to government service, and we are very grateful for that.

I want to particularly thank and express my appreciation to Mrs. O'Connor, who has done a wonderful job of keeping the O'Connor children in a state where their grandparents can be very proud of their behavior -- (laughter) -- through a long afternoon. And I know as the chairman of these things that there is a partway ceremonial aspect to them, but there is also a significant substantive aspect, and I appreciate those who are here for family reasons having had the patience as we went through some of the substantive issues that concern, I think, our entire country.

And if there is anything that anybody else would like further to add to the record, the record of these proceedings will remain open for one further week. But other than that, and with my renewed thanks and appreciation to the two witnesses, the hearing is now concluded.

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