Wednesday at the Senate Intelligence Committee hearing Sen. Kamala Harris (D-CA) demanded Deputy Attorney General Rod Rosenstein give his assurance that as special counsel in the Russia investigation former FBI director Robert Mueller will have “full” independence.
As Harris demanded a yes or no answer, Sen. John McCain (R-AZ) interrupted saying the witness should be allowed to fully answer the question. Intelligence Committee Chairman Sen. Richard Burr (R-CA) reprimanded Harris telling her to give the witness the courtesy to answer.
Partial transcript as follows:
HARRIS: Thank you.
Admiral Rogers, in response to the question from Senator Manchin, you, it appears, felt free to discuss the conversations you’ve had with the president in January about Russian active measures. Can you share with this committee how you’re determining which conversations you can share and which you don’t feel free to share?
ROGERS: Ma’am, the fact that we briefed the president previously, both went up to New York and previously as (ph) a matter of public record.
HARRIS: So if it’s a matter of public record, then you feel free to discuss those conversations?
ROGERS: If it’s not classified. You can keep trying to trip me up…
HARRIS: Is the…
ROGERS: … Senator, if you could, could I get to respond, please, ma’am?
HARRIS: No, sir. No, no.
HARRIS: Are you saying that, if it is classified, you will not discuss it? And then my follow-up question, obviously, would be do you believe that discussion of Russian active measures is not the subject of classified information?
ROGERS: I stand by my previous comments.
HARRIS: Thank you.
Mr. Rosenstein, when you appointed a special counsel on May 17th, you stated, quote, “Based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command.”
The order you issued along with that statement provides that 28 CFR 600.4 through 10 were applicable. Those are otherwise known as the special counsel regulations. Is that correct?
ROSENSTEIN: Yes, Senator.
HARRIS: And it states that the special counsel, quote, “shall not be subject to the day-to-day supervision of any official of the department.” However, the regulations permit you, as acting Attorney General, for this matter to override Director Mueller’s investigative and prosecutorial decisions under specified circumstances. Is that correct?
ROSENSTEIN: Yes, Senator.
HARRIS: And it also provides that you may fire or remove Director Mueller under specified circumstances. Is that correct?
HARRIS: And you indicated in your statement that you chose a person who exercises a degree of independence, not full independence, from the normal chain of command.
So my question is this: In December of 2003, then Attorney General John Ashcroft recused himself from the investigation into the leak that led to the disclosure of Valerie Plame’s identity as a CIA officer. The acting Attorney General at the time was Jim Comey.
HARRIS: He appointed a special counsel, Patrick Fitzgerald, to take over the matter. In a letter dated December 30th of 2003, Mr. Comey wrote the following to Mr. Fitzgerald. Quote, “I direct you to exercise the authority as special counsel independent of the supervision or control of any officer of the department.”
In a subsequent letter, dated February 6, 2004, Mr. Comey wrote to clarify the earlier letter, stating that his delegation of authority to Mr. Fitzgerald was, quote, “plenary.”
Moreover it said that my, quote, “conferral on you of the title of special counsel in this matter should not be misunderstood to suggest that your position and authorities are defined or limited by 28 CFR Part 600.” Those are the special counsel regulations we discussed.
So would you agree, Mr. Rosenstein, to provide a letter to Director Mueller similarly providing that Director Mueller has the authority as special counsel, quote, “independent of the supervision or control of any officer of the department,” and ensure that Director Mueller has the authority that is plenary and not, quote, “defined or limited by the special counsel regulations?”
ROSENSTEIN: Senator, I’m very sensitive about time, and I’d like to have a very lengthy conversation and explain that all to you. I tried to do that…
HARRIS: Can you give me a yes or no answer, please?
ROSENSTEIN: Well, it’s not a short answer, Senator. The answer is…
HARRIS: It is either you are willing to do that or not…
ROSENSTEIN: … well…
HARRIS: … as — as has — we have precedent in that regard.
ROSENSTEIN: But the…
WARNER: … Mr. Chairman, they should be allowed to answer the question.
ROSENSTEIN: It’s a — it’s a long question you pose, Senator, and I fully appreciate the import of your question, and I’ll get to the answer.
My quibble with you is, Pat Fitzgerald is a very principled, very independent person. I have a lot of respect for him. Now, Pat Fitzgerald could have been fired by the president, because he was a United States attorney. Robert Mueller cannot, because he’s protected by those special counsel regulations.
So although it’s theoretically true that there are circumstances where he could be removed by the acting attorney general, which, for this case at this time, is me, your assurance of his independence is Robert Mueller’s integrity and Andy McCabe’s integrity and my integrity. And those regulations…
HARRIS: Sir, if I — if I may, the greater assurance is not that you and I believe in Director Mueller’s integrity, which — I have no question about Mr. Mueller’s integrity.
It is that you would put in writing an indication, based on your authority as the acting attorney general, that he has full independence in regards to the investigations that are before him. Are you willing or are you not willing to give him the authority to be fully independent of your ability, statutorily and legally, to fire him?
ROSENSTEIN: He is — he has the…
HARRIS: Yes or no, sir?
ROSENSTEIN: … he has the full independence that is authorized by those regulations, Senator, as I said (ph).
HARRIS: Are you willing to do as has been done before?
BURR: Will the — would the senator suspend? The chair is going to exercise its right to allow the witnesses to answer the question, and the committee is on notice to provide the witnesses the courtesy which has not been extended all the way across — extend the courtesy for questions to get answered.
HARRIS: Mr. Chairman, respectfully, I would…
BURR: … Mr. Rosenstein, will you…
HARRIS: … point out that this witness has joked with the — as we all have, at his ability to filibuster.
BURR: … the senator will suspend. Mr. Rosenstein, would you like to thoroughly answer the question?
ROSENSTEIN: Thank you, Mr. Chairman.
Senator, I am not joking. The truth is, I have a lot of experience with these issues, and I could give — I could speak to you for a very long time about it, and I’m sympathetic — I appreciate the five minute limit. That’s not my limit.
But — but the answer is, it — it’s — this originated, as you may know, with the independent counsel statute. And I worked for an independent counsel, and I worked in the department during the independent counsel era, when independent counsels were appointed by authorization of the Senate, they were appointed by federal judges and they had the — essentially the authority equivalent to the attorney general.
That statute sunsetted, and the majority of members of this body concluded that that was appropriate, because they did not want special — independent counsels who were 100 percent independent of the Department of Justice. That was a determination made by the legislature. Now, I know the folks at the department who drafted this regulation under Janet Reno, and they drafted it to deal with this type of circumstance.
And the idea was that there would be some circumstances where, because of unusual events, it was appropriate to appoint somebody from outside the department — not somebody like Pat Fitzgerald, who was a U.S. Attorney who could be fired, but somebody from outside the department who could be trusted to conduct this investigation independently, and could be given an appropriate degree of independence.
Now under the regulation, he has, I believe, adequate authority to conduct this investigation. And your ultimate check, Senator, is, number one, the integrity of the people involved in the investigation, but, number two, the fact that, if he were overruled or if he were fired, we would be required, under the regulation, to report to the Congress.
And so I believe that’s an appropriate check. And so, while I realize that, theoretically, anybody could be fired, and so there’s a potential for undermining an investigation, I am confident, Senator, that Director Mueller, Mr. McCabe and I and anybody else who may fill those positions in the future will protect the integrity of that investigation.
That’s my commitment to you, and that’s the guarantee that you and the American people have.
BURR: Senator Cornyn.
HARRIS: So is that a no?
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