Executive Session

EXECUTIVE SESSION -- (Senate - February 03, 2005)

NOMINATION OF ALBERTO R. GONZALES TO BE ATTORNEY GENERAL OF THE UNITED STATES

Ms. CANTWELL. Mr. President, last week, I announced that I would oppose the nomination of Alberto Gonzales to be the Attorney General. I share many of the views on and reasons for opposing this nominee that my other colleagues have detailed--among them, the very grave concerns raised about Judge Gonzales's role in producing the so-called ``torture memos.''

But, I rise today to share with the Senate a reason for opposing this nominee that is particularly important to my home State of Washington. It is a reason that has not gotten much attention, but it is an issue I want to highlight because I feel Senators should know about it when they cast their vote on this nominee.

Among the reasons I am opposing Mr. Gonzales is his connections to Enron and his failure to commit to recuse himself from the Department of Justice's ongoing Enron investigation.

The Attorney General of the United States, as the chief law enforcement officer in the land, holds a special independent place in the government. After carefully listening to Judge Gonzales during his Senate hearings and reading his responses to questions, I do not have confidence that a Justice Department under his leadership will conduct the Enron investigations with sufficient vigor and independence.

We want our Attorney General to uphold the law no matter who the criminal is no matter how politically inconvenient and no matter who asks for his advice.

This administration's ties to Enron are common knowledge. In audiotapes released last summer, we heard Enron traders bragging about Enron's status as the number one contributor to the President's election campaign in 2000. We know that former Enron executives even had a hand in bankrolling the President's Inaugural festivities last month. So I think it's important for my colleagues to also realize that Judge Gonzales himself also had substantial ties to Enron while he was an attorney in private practice and then a candidate for the Texas Supreme Court.

Given the significance of this case and the past recusal of the outgoing Attorney General, Judge Gonzales should have made clear his intention to recuse himself from that investigation. Let me repeat this important point. Attorney General Ashcroft knew to recuse himself because of similar political ties to Enron.

Before his confirmation, I wanted the same assurances from Gonzales, or at least an explanation of why these former professional and political ties to Enron do not constitute grounds for recusal. I got none.

Let me make a few comments about the status of Federal investigations into the Enron mess, and why I believe it is so troubling that Judge Gonzales has to date refused to recuse himself from this matter.

It's my belief that, to date, the Department of Justice has done a good job in pursuing the case against Enron. I stood on this floor about seven months ago and applauded the work of the Enron Task Force when it handed down indictments of top executives including Ken Lay and Jeff Skilling last summer.

And the U.S. Attorneys in Northern California have been equally successful in bringing charges and securing guilty pleas from some of the Enron traders implicated in the conspiracy to manipulate our Western power markets.

But this investigation is not finished. The Enron investigation must be allowed to proceed, free from any potential political interference from special interests, particularly the interests under investigation.

I would also note that we have not seen the same vigor--the same pursuit of justice--by other departments and agencies within the Administration, and in particular the Federal Energy Regulatory Commission. FERC is charged with protecting American consumers from precisely the types of fraud Enron perpetrated in our Nation's energy markets.

FERC is also run by three Bush administration appointees who had ties to Enron. In fact, the Senate Government Affairs Committee uncovered Enron memos recommending their appointment to the White House.

To date, these FERC appointees have failed to take any meaningful action to provide the victims of Enron's power market manipulations with any measure of relief. At every step of the way, it has taken public embarrassment to get FERC to pursue an Enron investigation of any integrity. Or in the words of a November 2002 report by the Senate Governmental Affairs Committee, ``Over and over again, FERC displayed a striking lack of thoroughness and determination with respect to key aspects of Enron's activities.'' Since then, the situation has only deteriorated. FERC's Enron investigation to date has been marked by a lack of aggressive action.

In fact, I'm going back to my office in just a few minutes to participate in a conference call with officials from the Snohomish Public Utility District in my home State of Washington. We are going to air publicly, for the first time, new Enron audiotapes. Shockingly, these Enron tapes were just discovered sitting in one of Enron's Houston warehouses. They were left behind by the same Federal regulators that are supposed to be defending our Nation's consumers from the types of fraud Enron perpetrated in our energy markets.

Only a small portion of these new tapes have been processed.

But on these tapes, the American public will hear Enron employees during the company's collapse bemoaning the fact they couldn't get promoted unless they ``cooked the books;'' speculating that ``everyone knew,'' and that ``nothing happened at Enron that Ken Lay didn't bless.'' This is evidence that was left behind.

New evidence will also show Enron traders fabricating excuses to shut down a power plant--on the very same day that rolling blackouts hit California and disrupted the Western power market. The blackouts affected at least half a million people that day. As we learned with the recent Northeast/Midwest blackout, these are serious matters. Not only do blackouts cost hundreds of millions of dollars in lost economic activity, they pose serious risks to human health and safety. They are no laughing matter. In my mind, this represents a whole new level of callousness.

But what Enron did was not just disgraceful on a human level--it was also illegal. It was a direct violation of power market rules and a direct violation of a DOE emergency order issued by former Secretary Bill Richardson the very same day.

And yet, our Federal agencies are not unearthing this new evidence. The FERC remains content to sit on its hands, more than four years after the Enron collapse. Utilities in the West are actually being sued by Enron for even more money. Yet FERC stands by, while Washington State ratepayers wait for the other shoe to drop.

The consumers in my State, in the States of Nevada and California, deserve justice. But what they've gotten are years of process--a procedural shell game.

We need more aggressive action from our Nation's top law-enforcement officer.

This is why I was so deeply troubled to read Judge Gonzales's answers to questions posed by Members of the Judiciary Committee in this matter. I want to thank my colleague, the Senator from Wisconsin, Mr. Feingold, for asking these important questions. In his answers, Judge Gonzales would not state whether he would recuse himself, and he would not be specific about how his former ties to Enron might impact the Department of Justice's investigation of that company.

In his responses, Mr. Gonzales stated, ``I did some legal work for Enron over 10 years ago. I am told the work was totally unrelated to the collapse of the company.'' He added that ``it would be premature for me to commit to recuse myself from ongoing Enron prosecutions.''

Mr. Gonzales was clearly asked to provide more specificity, more details and more of a commitment on what Americans can expect from the Justice Department leadership on the Enron investigation. These answers of the nominee were not satisfactory.

I find this particularly troubling, given the fact Judge Gonzales has a clear history of employment related and political ties to Enron, and a track-record that leads me to question his judgment and his independence from the President.

As I stated at the outset, we want our Attorney General to uphold the law no matter who the criminal is no matter how politically inconvenient--and no matter who asks for his advice.

So I will vote against Judge Gonzales's nomination today, for this and other important reasons. But I am also here to note that the Federal Enron investigation is not over. It is likely that Judge Gonzales may be confirmed as Attorney General later today. Perhaps Judge Gonzales will recuse himself after he is confirmed.

But whatever his decision, I am here today to put Judge Gonzales on notice. If there is any hint whatsoever that the Enron Task Force is being undermined, underfunded, or otherwise hindered, this Senator will not stand for it. The Enron investigations must be allowed to proceed. And this Senator will be watching every single step of the way.

This Senate deserves straight answers from the President's nominees. Corporate criminals deserve to be prosecuted to the full extent of the law. And the victims of Enron's fraud in our Nation's power markets deserve relief.

What Enron did to my constituents in Washington and to countless others across the Nation was disgraceful.

Given these issues, I have substantial lingering questions about whether Mr. Gonzales would exercise independent judgment, especially when a clear commitment to conduct investigations and uphold a strict standard of conduct is needed.

I also have serious concerns about Judge Gonzales's legal judgment. As White House Counsel, his office generated a legal opinion on whether the President is bound by domestic and international law on torture, which the government recently repudiated as legally faulty.

Such a repudiation calls Judge Gonzales's judgment into question, judgment that is critically important for our country's top attorney. It also suggests he is not independent of the President, which is essential for his new Cabinet role. Further, Judge Gonzales's changed position on the torture memos in the weeks before his confirmation hearings appears to demonstrate political convenience, not a truly self-reflective change in his thinking on these matters.

Had Judge Gonzales recognized the serious problems with the judgments he made on these issues and given convincing assurances that he understands that his new role will require a different approach and a new allegiance to the law, I might have been convinced to defer to the President on this nomination. Without those assurances, and a clear commitment to ensure that there is no appearance that the Justice Department may take a difference course on the Enron investigation, I cannot support his nomination to be the next Attorney General of the United States.

In conclusion, many of my colleagues have spoken about this nomination. They have talked about a variety of issues, and certainly one of those issues is the independence of the Attorney General. That is clearly an issue that is at the forefront of my interest today.

The reason is because ongoing in the Department of Justice, and I wish ongoing in the Federal Energy Regulatory Commission, is an investigation of Enron and Enron fraud. This is an issue that Attorney General Ashcroft decided, when taking office--and the evidence started to pour in of market manipulation--he basically looked at his record and background of having taken contributions from Enron and he recused himself from the Enron investigation and task force.

Now we have before us a new Attorney General nominee who not only has accepted campaign contributions from Enron, he actually worked to represent them at the law firm in his private practice, specifically working for the Enron company as an outside counsel.

If our past Attorney General clearly identified a conflict of interest and basically stepped aside to make sure he was not in any way unduly influencing the Enron investigation, why should not this nominee have clearly done the same thing--in particular, giving answers to the Judiciary Committee that he would recuse himself?

I am not a member of the Judiciary Committee. I am a past member of that committee, but I certainly asked my colleagues to submit questions to Judge Gonzales asking him if, in fact, he would recuse himself and to be explicit about any other ways in which he could ensure that this Enron investigation continued with its independence. Judge Gonzales would not commit to recusing himself from this situation.

Because he will not recuse himself, I cannot, today, give him my vote knowing that he will achieve the independence this agency so much needs to have when it comes to this investigation.

Just today, this very day, Snohomish County PUD will be releasing new information, new audiotapes from Enron employees that just happened to be left behind at the Enron Houston facility that investigators forgot to claim. These tapes actually have Enron employees discussing the fact that superiors, Enron traders, had asked them to cook the books.

We also will see other tapes and information that basically says that various, what are called, cogeneration facilities, that Enron had business relationships with, were actually asked to take generation offline, to come up with a scheme of why they should stop production of these powerplants. The result was a blackout in California in the next few days following this time period--something that is very troubling to us in the Northwest.

We have spent billions of dollars of economic impact, and we want an investigation to continue to take place. We want the independence that the Federal Energy regulators should have in this case in determining that just and reasonable rates have not been charged by Enron. We want the Department of Justice to do its job, unfettered by any kind of influence, and continue to pursue all those involved with the Enron case until justice is given and ratepayers have relief in the West.

So it is unfortunate that we cannot get Judge Gonzales to make a commitment up front about where he is going to be in recusing himself on this very important matter that has had great fiscal consequence to the people of the Northwest.

I wish, given all the other aspects of this nomination, I could overlook this issue or other questions that some of my colleagues have brought up, but I cannot.

As a young woman, when I first learned about our Attorney General, at a time and era when a White House and President and outside influence said that the Attorney General should just follow the line of what was happening in the White House, we had Attorneys General who decided, instead of not carrying out the law, they were not going to be influenced by the White House; that they would rather resign than not carry out the law. That is the kind of independence we want to see in an Attorney General.

The case is clear against Enron. The case for recusing himself is clear. Unfortunately, I cannot support the nomination of Alberto Gonzales today because I am not sure he will recuse himself in this case.

The ratepayers of Washington State need relief. We do not want to continue to have to be the policemen on the beat investigating this case, finding new evidence, proving that wrongdoing has happened, continuing to prove how much we have been hurt. We want Federal regulators to do their job and give us relief.

I ask unanimous consent that Mr. Gonzales's written responses to Judiciary Committee questions be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

http://thomas.loc.gov