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93–948 PDF 2004

S. HRG. 108–472

CONFIRMATION HEARING ON THE NOMINATION

OF JAMES B. COMEY, JR., OF NEW YORK,

TO BE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

OCTOBER 29, 2003

Serial No. J–108–49

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

prepared statement .............................................................................................. 99

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 101

Schumer, Hon. Charles E., a U.S. Senator from the State of New York, 

prepared statement and attachments ................................................................ 103

PRESENTERS 

Schumer, Hon. Charles E., a U.S. Senator from the State of New York 

presenting James B. Comey, Jr., Nominee to be Deputy Attorney General, 

Department of Justice ......................................................................................... 3

Warner, Hon. John, a U.S. Senator from the State of Virginia presenting 

James B. Comey, Jr., Nominee to be Deputy Attorney General, Department 

of Justice ............................................................................................................... 36

STATEMENT OF THE NOMINEE 

Comey, James B., Jr., Nominee to be Deputy Attorney General, Department 

of Justice ............................................................................................................... 5

Questionnaire .................................................................................................... 7

QUESTIONS AND ANSWERS 

Responses of James B. Comey, Jr. to questions submitted by Senator Durbin . 57

Responses of James B. Comey, Jr. to questions submitted by Senator

Feingold ................................................................................................................ 63

Responses of James B. Comey, Jr. to questions submitted by Senator

Grassley ................................................................................................................ 67

Responses of James B. Comey, Jr. to questions submitted by Senator

Hatch ..................................................................................................................... 70

Responses of James B. Comey, Jr. to questions submitted by Senator

Kennedy ................................................................................................................ 71

Responses of James B. Comey, Jr. to questions submitted by Senator

Leahy ..................................................................................................................... 81

Responses of James B. Comey, Jr. to questions submitted by Senator

Schumer ................................................................................................................ 95

SUBMISSION FOR THE RECORD 

Warner, Hon. John, a U.S. Senator from the State of Virginia, prepared 

statement .............................................................................................................. 107

(1)

NOMINATION OF JAMES B. COMEY, JR., OF 

NEW YORK, TO BE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE 

WEDNESDAY, OCTOBER 29, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:06 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Kennedy, Feingold, and Schumer. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Good afternoon. Since Senator Schumer is 

here, I am going to proceed. 

I want to welcome everyone to today’s hearing to consider James 

Comey’s nomination to serve as Deputy Attorney General of the 

United States. I want to congratulate you, Mr. Comey, for being selected by President Bush for this important position in the Justice 

Department. In my view, you are uniquely qualified to serve as 

Deputy Attorney General. You bring a wealth of experience and 

perspective as a line prosecutor, as manager of the U.S. Attorney’s 

Office of the Eastern District of Virginia, and most recently as U.S. 

Attorney for the Southern District of New York. 

Most importantly, your record demonstrates that you are a leader who can inspire others to accomplish great things and one who 

can oversee and manage an organization such as the Justice Department. 

With the recent departure of Larry Thompson, who was a fine 

Deputy Attorney General, I am sure everyone shares my view that 

Mr. Comey has very big shoes to fill. However, I am confident that 

in your case, Mr. Comey, you are the right person for the job. Your 

impressive background and past Government service make me confident that you will be a great asset to the Department of Justice, 

this Committee, and the American people. 

The importance of the Deputy Attorney General within the Justice Department cannot be overstated. Over the years, the Deputy 

Attorney General’s office has played a greater role in overseeing 

the Department’s operations, implementing new policy initiatives, 

and ensuring the effective enforcement of our criminal and civil 

laws. It is important for the Committee to review Mr. Comey’s 

nomination and act quickly to ensure that the Justice Department’s 

2

important work on terrorism, cyber crime, and other criminal and 

civil issues continues with as little disruption as possible. 

The stakes in this area are simply too high to leave this essential 

position unfilled for any length of time. I want to thank Senator 

Leahy for his cooperation in quickly scheduling this hearing. 

Of course, I am not suggesting that we shirk our duties to review 

carefully these nominations, but I am asking members to be mindful of the circumstances in which we are acting and to work together to move this important nomination as quickly as possible. 

A review of Mr. Comey’s record establishes one simple fact: He 

is well qualified to serve as Deputy Attorney General. Since January 2002, Mr. Comey has served as U.S. Attorney in the Southern 

District of New York, an office that many consider to be the premier U.S. Attorney’s Office in the country. In the Southern District 

of New York, Mr. Comey has earned the respect of judges, defense 

counsel, and prosecutors for his professionalism, for his fairness, 

for his judgment. 

While serving as U.S. Attorney, Mr. Comey was responsible for 

leading his office in some of the more significant terrorism and 

white-collar crime investigations and prosecutions. 

Prior to assuming the position as the U.S. Attorney, Mr. Comey 

served from 1996 to 2001 as Managing Assistant U.S. Attorney in 

charge of the Richmond Division of the U.S. Attorney’s Office for 

the Eastern District of Virginia. From 1993 to 1996, Mr. Comey 

was an associate and later a partner at the law firm of 

McGuireWoods in Richmond, Virginia. Early in his career from 

1987 to 1993, Mr. Comey served as an Assistant U.S. Attorney in 

the Southern District of New York. 

As a Federal prosecutor, Mr. Comey investigated and prosecuted 

a wide variety of cases, including firearms, narcotics, major frauds, 

violent crime, public corruption, terrorism, and organized crime. In 

the Eastern District of Virginia, he handled the Khobar Towers terrorist bombing case arising out of the June 1996 attack on a U.S. 

military facility in Saudi Arabia in which 19 of our airmen were 

killed. 

Mr. Comey was educated at William and Mary. He had a B.S. 

with honors in 1982, chemistry and religion majors, and the University of Chicago Law School, where he got his juris doctorate in 

1985. After law school, he clerked for then-U.S. District Judge John 

Walker in Manhattan. 

Let me take one moment to perhaps highlight Mr. Comey’s most 

important accomplishment. While serving his country in a variety 

of prosecutorial positions, he has demonstrated that he is a dedicated family man. He and his lovely wife, Patrice, are raising five 

very wonderful children ranging in age from 15 to as young as 3 

years old. I want to congratulate both of you for the excellent family that you have and for your family commitment, and I am happy 

to welcome your family here before this Committee. 

Mr. Comey is a dedicated public servant and a talented, well-respected prosecutor. He is uniquely qualified to lead as the Deputy 

Attorney General of the Justice Department, and I am hopeful that 

this Committee will act favorably and quickly on his nomination as 

soon as we can. 

3

With that, we will turn to Senator Schumer, and you want to 

speak from the dais rather than the table. 

PRESENTATION OF JAMES B. COMEY, JR., NOMINEE TO BE 

DEPUTY ATTORNEY GENERAL, BY HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman, and I want to 

thank you for holding this hearing today. I also want to thank the 

nominee, James Comey, for the opportunity to introduce him. 

Mr. Chairman, it is a sign of the kind of person that Jim Comey 

is that, after we met yesterday, he still wanted me to introduce 

him today. 

Chairman HATCH. You don’t know what a big sign that is. 

[Laughter.] 

Senator SCHUMER. Now, the reason is simple, Mr. Chairman. I 

told Jim Comey that I praise his experience, reputation, and character, which I consider the highest. But I was going to insist on answers to some tough questions about the CIA leak investigation before I decide how to vote. And, nevertheless, Mr. Comey wanted me 

to introduce him, and I am very proud to do so. 

Before I get to his personal qualifications, I should note that Jim 

is a Yonkers native, now lives in Somers, New York, up in the 

other end of the great County of Westchester. And if he is confirmed, my State will lose seven constituents: Jim, his wife, 

Patrice, and their five children. And I assure you, Mr. Chairman, 

despite the fact that I would hate as a New Yorker to lose such a 

handsome family, it will not influence my decision. 

I have gotten to know Jim personally. I am convinced he is a 

man of honor and integrity. He puts family and country above all 

other interests, and every day he works hard to ensure that he 

serves both to the best of his ability. 

Everyone you talk to who knows him says great things about 

him, and in a world where it is easy to make enemies, Jim Comey 

has managed to do nothing but win admirers. When it comes to the 

professional, it would be hard to find a more impressive resume 

and reputation. 

Jim is a prosecutor’s prosecutor. When Mary Jo White left her 

post in the U.S. Attorney’s Office in the Southern District of New 

York, she left some pretty big shoes to fill. The White House proposed Jim Comey, and I don’t know that they could have come up 

with a better man for the job. With his terrorism prosecution experience, including handling the Khobar Towers case, his management experience running the U.S. Attorney’s Office in Richmond 

and his reputation as a guy who doesn’t pull punches, it was an 

easy choice to support him for the Southern District post. And 

since he became the Southern District’s top prosecutor, Jim has 

only burnished his reputation. He has been an excellent U.S. Attorney. 

So, in my judgment, at least, Mr. Chairman, there is no question 

he is qualified; there is no question he is a fine man; and under 

normal circumstances, there would be no question of my unqualified support for him. But, unfortunately, these are not normal circumstances. Over the past several weeks, the Department of Justice has been handling—or should I say mishandling the investigaVerDate 0ct 09 2002 16:15 Jun 08, 2004 Jkt 094064 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93948.TXT SJUD4 PsN: CMORC
4

tion into who leaked the identity of a covert CIA agent. I take the 

Justice Department’s criminal investigation into the leak of a covert CIA operative’s identity very seriously because it is an act so 

vile and so heinous that it shocks the conscience. It demands a full, 

fair, and fearless investigation that is above and apart from politics. 

But so far, the way this probe has been conducted falls quite 

short of that bar. There are serious concerns that the White House 

is being treated with kid gloves. From unexplained delays to disturbing apparent conflicts of interest, we have many reasons to be 

worried that this investigation is being bungled so badly that the 

culprits may never be caught. 

This leak, in my opinion, is a dastardly crime. It goes to the 

heart of our ability to deal with terrorism. We have to make sure 

we find the leakers, punish them as severely as possible, and send 

a clear message that playing politics with national security will not 

be tolerated. And as you know, Mr. Chairman, I called for an investigation into this leak the day it was announced in the newspapers. 

I had no knowledge of who the trail might lead to. I still don’t. So 

I don’t care who they come up with, as long as they come up with 

the right person or persons and make sure they are punished to 

the full extent of the law. 

Yesterday, Mr. Comey came by my office, and we spent about 45 

minutes discussing these issues. I know that he agrees that this is 

an incredibly serious matter, and it should be investigated in accord with the highest principles of prosecution. If he is confirmed, 

Mr. Comey will oversee the Criminal Division and, as a result, 

oversee this investigation. 

The question we all want to know, Mr. Chairman, is: If he is confirmed, will he straighten a ship out that appears to be sailing way 

off course? 

I gave Mr. Comey a list of questions that I intend to ask him 

today. Mr. Chairman, I didn’t want to catch him by surprise or to 

say that he needed more time to think about how to answer. This 

investigation is just too important. So today I will ask Mr. Comey 

what standards he will use in deciding whether to recommend that 

Attorney General Ashcroft recuse himself. I will ask what principles he will use in deciding whether to recommend the appointment of a special counsel. To me, at least, this investigation has 

many apparent conflicts, as this chart shows. Mr. Comey has an 

obligation to explain how he will address these conflicts, some real, 

some apparent. 

I will also ask Mr. Comey what he will do if he believes the investigation is being compromised, and if he cannot use his authority to bring the investigation into line. 

These are important questions, and we have a duty to the American people to get satisfactory answers before we vote on this nomination. There is no question, Mr. Chairman, Jim Comey is a good 

man. He has the right credentials for the job. But being involved 

in this investigation is an incredibly delicate and difficult undertaking. 

Jim is well-known for two qualities: loyalty and integrity. These 

two qualities may come into conflict with one another as the probe 

progresses. 

5

This Committee and the public need to know what Mr. Comey 

in his new position will do to ensure that the Justice Department 

will conduct this investigation in the most thorough, fearless, and 

comprehensive way possible, no matter where it leads. I hope that 

Mr. Comey will give answers today that will satisfy the questions 

the Committee and public have about an investigation that has 

thus far been criticized by many. 

I look forward to hearing his answers to our questions. 

Chairman HATCH. Well, thank you, Senator. 

I think Senator Kennedy is going to preside for the Democrats, 

and when he gets here, we will interrupt whatever we are doing 

and allow him to make his opening remarks. 

Mr. Comey, if you would, I would like you to please stand to be 

sworn. Do you swear that the testimony you are about to give shall 

be the truth, the whole truth, and nothing but the truth, so help 

you God? 

Mr. COMEY. I do. 

Chairman HATCH. Thank you, sir. We would like you to introduce your family and any friends you have here with you and, of 

course, make any statement you would care to make at this time. 

STATEMENT OF JAMES B. COMEY, JR., NOMINEE TO BE 

DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE 

Mr. COMEY. Thank you, Mr. Chairman. 

Mr. Chairman, Senator Schumer, members of this Committee, I 

am honored to be before you, and I have not changed my view, Senator Schumer, that I very much appreciate your introducing me, 

and I look forward to answering your questions. 

I also very much appreciate the Committee and Mr. Chairman 

and Senator Leahy scheduling this hearing so shortly after my 

nomination. I have devoted nearly all of my working life to the Department of Justice, and I am honored that the President and the 

Attorney General have asked me to serve in yet another role with 

the amazing men and women of the Department. 

I meet with each Assistant U.S. Attorney in the Southern District of New York on their first morning before I administer the 

oath, and I give them what they now teasingly call ‘‘the speech.’’ 

And I tell them what my expectations are for their job, and the 

most important thing I tell them is that they are about to begin 

the journey of a lifetime because they are about to take a job where 

their only obligation is to do the right thing, an opportunity few 

people ever have. 

And I tell them that, ‘‘You are about to get a gift that you didn’t 

earn, and that was earned for you by things done and sacrifices 

made by people long since gone, and that is this: When you stand 

up as an Assistant U.S. Attorney and say, ‘I represent the United 

States of America,’ people believe the next thing you say. You 

didn’t earn that. That’s a gift,’’ is what I tell them. 

And I tell them that, ‘‘You’ve gotten from those people long since 

gone a reservoir of trust and credibility, and your absolute obligation—and I will insist upon it as your U.S. Attorney—is that you 

take that reservoir, you guard it, you protect it, and you turn it 

over to the next group that follows you as full as you got it or 

fuller.’’ 

6

If I am fortunate enough to be confirmed as Deputy Attorney 

General, I will receive just such a gift, an office once occupied by 

people like Byron White or Benjamin Civiletti or Bill Barr or my 

friend Larry Thompson most recently. And I’ll have the opportunity 

to help supervise an organization made up of people who have done 

good in this country for generations. In small towns and big cities, 

there are folks who sacrifice, including some who risk their lives 

every day that I’ve worked with very closely, and they do it because 

they love getting paid to do the right thing for a living. 

I promise you that if I’m confirmed as Deputy Attorney General, 

I will take my own advice. I will safeguard the gift that I didn’t 

earn, the reservoir of credibility and trust that is the Department 

of Justice. And I will protect it. I will make sure it’s as full as the 

moment I got it, if not fuller, when I hand it over to whoever is 

lucky enough to follow me. 

Let me just say a brief word about the six people sitting behind 

me. Sitting to my right is my best friend since I was 19 years old 

and the only love of my life. She has made sacrifices for this country and for me that I cannot put into words without getting choked 

up, so I won’t, except to know I can never repay that. 

Also behind me are my five troops: Maurene, Kate, Brien, Claire, 

and Abby, the full gamut, 15, 13, 9, 6—almost 7, Claire—and 3. 

They are the joy of our lives. They make my life fun and full and 

a little nuts, but by being their wonderful selves, they remind me 

every day of what really, really matters in life. And I’m very grateful for them being here today, and I look forward to answering your 

questions. 

[The biographical information of Mr. Comey follows:]

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Chairman HATCH. Well, thank you so much. I think I differ with 

you in one of your statements, and that is, I think you have earned 

the right to be here. I don’t think it is just a free gift. I think you 

have earned it. I know quite a bit about you, and I have to say I 

am very impressed that you have been asked to do this job. And 

I know you will do an excellent job, and that is all we can ask. 

Let me just ask a few questions of you before I turn to either 

Senator Kennedy or Senator Schumer. 

From my vantage point, it seems that over the last few administrations each Deputy Attorney General has left his own mark on 

the Department’s mission. Now, what do you see as your major priorities as you pursue this job in the current Justice Department? 

Mr. COMEY. Well, Mr. Chairman, I hope to, in filling the big 

shoes of Larry Thompson, continue two of the things that consumed most of his days, and that is, our number one priority, 

counterterrorism. It will remain that. It will remain what I do 

every day. And his leadership of the Corporate Fraud Task Force. 

I’ve been lucky enough to be involved in a lot of significant whitecollar cases. I think that is a mission of the Department of Justice 

and the regulators and everybody in law enforcement that simply 

cannot be neglected. We can deter white-collar crime, and I think 

we’re doing a great job out there in the field, and I would look to 

continue that. 

There’s a lot of other things I’m interested in because I’ve prosecuted a lot of different cases. I care passionately, as I know you 

and Senator Schumer do, about child pornography. When I started 

as a prosecutor in 1987, like smallpox, child pornography had almost been wiped out in this country. And with the Internet, we’ve 

seen an explosion of child pornography, and even worse, the exploitation that produces it. So that is something that I am happy to 

devote my energy to and something that I will pursue very aggressively. 

Chairman HATCH. Well, thank you. 

Given your experience as a line prosecutor and manager of a 

staff of prosecutors in the U.S. Attorney’s Office for the Southern 

District of New York, can you describe how those experiences have 

helped to prepare you for this very important position in the Justice Department? 

Mr. COMEY. To the extent I’m prepared, I think it comes in two 

different forms. I’ve been lucky enough to actually do the cases and 

work with the men and women, the cops, the State troopers, the 

special agents, to make criminal cases of all sorts. So I know what 

it’s like where the rubber meets the road in the U.S. Attorney’s Offices, and I think that helps me and gives perspective that maybe 

folks who have been at headquarters their whole life don’t have. 

I also think managing an office of over 500 people in the Southern District of New York has given me a sense of just what my role 

is as a manager. And it is not, in my view, for me to micromanage 

the work of my people, but for me to manage my people and help 

them work their cases. That’s something I’ve learned as U.S. Attorney. In Richmond, I could be much more hands-on because I had 

a smaller place, but—so I think those two elements to my experience will help me. 

31

Chairman HATCH. Let me ask you a question I asked your colleagues last week, Assistant Attorney General Chris Wray and U.S. 

Attorneys Patrick Fitzgerald and Paul McNulty. As you know, the 

Committee is holding a series of bipartisan hearings to assess the 

sufficiency of our laws to prevent and respond to acts of terrorism. 

Now, my question is this: Given your vast experience in this area, 

do you believe the country is in a better position to prevent terrorist attacks against America today than we were on September 

11, 2001? 

Mr. COMEY. I do, Mr. Chairman. I think we are— 

Chairman HATCH. Why do you think that? 

Mr. COMEY. We are very much safer. We are still at great peril 

from terrorists, and they lie awake at night trying to find ways to 

hurt our people. But I think for a variety of reasons and the one 

that leaps out at me is the portion of the PATRIOT Act that lowered the so-called wall between intelligence and criminal responses 

to terrorism. 

You mentioned Pat Fitzgerald, one of my closest friends, the U.S. 

Attorney in Chicago, and the godfather of Brien Comey. And Pat 

Fitzgerald describes it in the way only he can, sort of down-to-earth 

ways, how important it was to lower that wall. When he ran the 

investigation of Al-Qaeda and Osama bin Laden starting in 1996, 

when no one had heard of bin Laden in the world at large, as he 

says, ‘‘I could talk to cops. I could talk to civilian witnesses. I could 

talk to foreign police officers. I could talk to foreign spies. I could 

talk to the CIA. I could talk to Al-Qaeda members who had come 

over to our side and were cooperating. There was only one kind of 

person I couldn’t talk to, and that was the FBI agent upstairs who 

was conducting the intelligence investigation on those same targets.’’ 

And as Pat Fitzgerald says, ‘‘A world where I can talk to AlQaeda but not to the FBI is a world where we are not safe.’’ And 

so I think that change, among all the changes in the PATRIOT Act, 

was the most profound and did the most to make the American 

people safer. 

Chairman HATCH. Thank you. But I think we gave you a lot of 

other tools in the PATRIOT Act as well. 

Mr. COMEY. Yes, sir, you certainly did. 

Chairman HATCH. And they are working. 

Mr. COMEY. They definitely are, sir. As I think came out at your 

hearing last week, there’s a great deal of both apprehension and 

misunderstanding with respect to the PATRIOT Act. The tools of 

the PATRIOT Act have been very, very important to the FBI 

agents and the prosecutors in the field who are working in ways 

that we may never hear about in investigations to make people 

safer. So we are very grateful to Congress for those tools. 

Chairman HATCH. Thank you. 

Now, you also have significant experience in violent crime prosecutions. Some have suggested that the war on terrorism is being 

conducted at the expense of traditional prosecutions of violent 

criminals. From your vantage point, do you have a view on that 

particular suggestion? 

Mr. COMEY. I have not seen it, Mr. Chairman, certainly in New 

York. It’s obviously a time of resource-juggling because the FBI, for 

32

reasons that every American would understand, has moved resources to counterterrorism. But what I’ve seen happening is the 

good men and women of the State Police in New York, the men and 

women of the New York City Police Department, for example, stepping up and contributing more bodies, as we say in law enforcement, to task forces, so the FBI in particular is able to leverage its 

resources. 

My indictment numbers in the Southern District of New York 

have gone up in the 2 years since September the 11th. My people 

are working as hard as they ever did, but I think what’s happened 

is we’ve come together as law enforcement not just to do our primary mission, which is to fight terrorists, but we’ve come together 

to make sure that folks who are the victims of violent crime are 

not left behind and those cases are made. 

Chairman HATCH. Well, thank you. I am going to reserve the balance of my time and turn to Senator Schumer for questions. 

Senator SCHUMER. Thank you, Mr. Chairman. 

And, again, just let me reiterate, I think the nub of the difficulty 

we face here is that you are well-known for exhibiting two admirable qualities: loyalty and integrity. And in tough and delicate situations, they come into conflict, and that is why I think these questions are so important in what I consider to be a very important 

investigation. 

So my first question is this: Have you recused yourself or your 

office from an investigation during your career as a prosecutor? If 

so, what standard have you used in making that decision? 

Mr. COMEY. I have, Senator. In one particular case that comes 

to mind, my office in the Southern District of New York—in a matter that I believe is still pending in another office because we 

recused ourselves, so I’ll be a little vague about the details—found 

ourselves involved in an investigation of a firm in the financial 

services industry, and we learned as the investigation went on that 

one of the principals of the firm was the spouse of one of my prosecutors one of my supervisors. And so we engaged in more investigation so we could understand a number of things that were important to me: How big is the firm at issue? What is their status? 

Are they, for example, a witness, subject, or target? And how close 

is the connection between this individual and the firm and the conduct at issue? 

And so at the end of the day, we concluded that there were only 

a handful of people that controlled this particular firm and that 

they were, in fact, the subject of the investigation. And given the 

relationship between one of those handful of people who controlled 

it and one of my supervisors, I thought it was appropriate to recuse 

not just that supervisor, which I could have done, I suppose, 

pushed that supervisor to the side, but the entire office simply because the—and as I know you know, Senator, the issue with prosecutors, we have great people out there making these cases. And 

so the issue is not actual partiality. The issue is appearances. And 

I was concerned in that case that given the substantial connection 

between my office and this firm and the substantial role played by 

the spouse, that did raise an issue with respect to partiality, frankly, because we might find ourselves in a position of having to make 

a charging decision about the spouse of one of my key people and 

33

maybe putting the guy in jail and affecting my employee financially. 

So for those reasons, I recused the entire office after getting advice from a variety of my folks, and then it was moved by the Department to another office. 

Senator SCHUMER. Was that the only time there was recusal for 

yourself or the office, the people you had jurisdiction over? 

Mr. COMEY. There was one other time that I thought of last 

night where our office was asked to investigate a law enforcement 

agency in the theft of money, an agency that we worked very, very 

closely with. And that’s also pending so I can’t specify more. But 

given how closely we work day to day with the folks whose office 

was the subject—was the place where the money had disappeared, 

we decided that for relationship issues we would simply ask another office to handle it. 

That’s a little different because that wasn’t an appearance issue. 

It was more we have got to work with these guys every day; we 

don’t want to be locking one of them up. 

Senator SCHUMER. Can you describe—it is hard to do, but, in 

general terms, when you think recusal is appropriate, when either 

the conflict or the appearance of conflict is even a harder standard, 

as you know, and the one more usually applied, when that has to 

be invoked? 

Mr. COMEY. Well, Senator, as you said, it is a hard thing to spell 

out in the abstract. As I say, despite what my mother taught me 

about not caring what other people think, as a prosecutor you have 

to care that the public has confidence in the work you’re doing. So 

the rule that I’ve applied—and I’ll probably garble whatever is in 

the Code of Federal Regulations, but if I find a situation where because of a personal or business relationship to a person who is substantially involved in one of our investigations, the appearance of 

partiality arises, I make a judgment call, and as you saw in the example I gave you first, I err on the side of caution because I care 

about people’s faith in the institution of the U.S. Attorney’s Office. 

And in that circumstance, I would consider recusal. 

Now, as you can tell from the way I have no doubt garbled the 

CFR standard, as I did in the case I mentioned, I talk to the folks 

in my office who know this stuff, who’ve done the legal research on 

it and are kind of the old hands, and get their advice before I make 

that kind of call. 

Senator SCHUMER. Do you believe that an appearance of a conflict of interest can be enough to require the Attorney General to 

recuse himself? I am not asking about a specific case, but abstractly. 

Mr. COMEY. Yes, Senator, I think I would agree. Any chief prosecutor, whether U.S. Attorney or the Attorney General, might find 

himself in a situation where the appearance issue was substantial 

enough. The prospect that folks would conclude that he or she was 

biased in a particular investigation, recusal would be appropriate. 

Senator SCHUMER. And the other standard, of course, is extraordinary circumstances. This is for a special counsel, not just a 

recusal. But let me ask you both: Do you believe that an appearance of a conflict can be enough to give rise to extraordinary circumstances that would necessitate the appointment of a special 

34

counsel in the case of Attorney General? Again, I am asking it generally, not just— 

Mr. COMEY. Again, a tough one to answer in the abstract. I am 

sure I could imagine, given enough time, circumstances where 

there were extraordinary enough circumstances that it created, as 

I said, a substantial risk that folks would conclude that the Department or that chief executive, that chief prosecutor was unable to 

be impartial that it would be appropriate. 

Senator SCHUMER. You mentioned the second case, which was offices that had to work closely together. So that can be a circumstance as well where recusal would be appropriate? 

Mr. COMEY. It can be, Senator, and, again, the example I gave 

was probably not one in which I was applying the standard recusal, 

because I could imagine a circumstance where— 

Senator SCHUMER. The law is flexible. 

Mr. COMEY. That’s exactly right. I could imagine a circumstance 

in the case I mentioned where I could wall off a group and handle 

it, or if there was someone who was particularly close to the folks 

in that office, the set of office cubicles where the money had disappeared, we could handle it. We could take other steps. I just decided that—I don’t want to give away what the agency was, but because of that particular relationship, folks who needed to have 

lunch together and work these cases together, it was probably easier for me to make that call. 

Senator SCHUMER. All right. And let me ask you this, now getting to the specific case. You have mentioned close working relationship. There are probably very few closer working relationships 

between, say, an Attorney General and the White House, in this 

case a group that he might be investigating, the Counsel’s Office 

and so many other parts. 

Just inform us a little bit. I know you have not immersed yourself in the facts of this case, but inform us in terms of that standard, what you would look at here, because, again, this is a close—

it is a close daily relationship. And one of my concerns, frankly, is 

the Attorney General has to go to some of the very same people to 

get things for his Department, to get a policy recommendation implemented that he might be looking into. That creates not only an 

appearance of a conflict, but it actually might create the extraordinary circumstances where recusal would almost be required. 

Tell me why it might not be or why it might be in this situation. 

Again, I am not asking to pin you down in a yes or no answer here; 

rather, I want to get your parameters. 

Mr. COMEY. Senator, I understand that. I am not comfortable 

discussing the particular case for a number of reasons. First of all, 

as an experienced prosecutor I never talk about investigations or 

an aspect of them publicly. I certainly don’t talk about investigations, even if I were otherwise inclined, that are not mine. 

Senator SCHUMER. I am just asking the general standards you 

would use to determine the closeness of the relationship, the appearance of the conflict. 

Mr. COMEY. And as we said earlier, it’s by necessity a standard 

that is difficult to define. It turns upon the relationship at issue, 

the role of the party with whom the prosecutor you are looking at 

has that relationship in the investigation, that is, witness, subject, 

35

target. That obviously turns on specific facts. And also from that 

relationship, what’s the nature of the concern about partiality that 

arises? 

And that sounds all fuzzy. That’s because it is fuzzy to define in 

the abstract. It’s simply one in which you have to be conscious of 

the importance—as I started, the touch stone is that you want to 

do the job right and you want to make sure that folks have confidence in the job that you do. 

Senator SCHUMER. Right. I am speaking personally here. I find 

it virtually impossible for anyone to come to the conclusion—we 

can debate when a special counsel is needed, but in terms of 

recusal because of an appearance, I find it virtually impossible, 

given the naturally close and nothing illegal, I mean nothing 

wrong, with the relationship between the Attorney General and all 

of the nexus of people in the White House and all the interrelationships, that there would not be an appearance. That is one of the 

reasons I am frustrated. I thought the Attorney General—I have 

stated this publicly, there is nothing new—should have recused 

himself from the outset. 

So again, I do not want to try to pin you down here unfairly, but 

I would like to know—you follow this, you do not know the details, 

but all you have to know, here we are talking about structure, not 

actual investigation. So I think it is appropriate to ask this question. How could there not be an appearance of conflict given all the 

close nexus of the relationships that we know about. We do not 

know who did this. I have no idea who did this. But we do know 

that some of the names that have been bandied about by some, and 

those people have such close and intertwined relationships it is virtually impossible for me to believe there is not an appearance. 

Could you address that? I mean this chart is really not hyperbolic, 

even though it might appear to be, there is just so many different 

relationships. 

Mr. COMEY. Senator, as I said— 

Chairman HATCH. Senator, your time is up. But answer the 

question. Then I am going to call on Senator Warner who would 

like to make opening remarks on behalf of— 

Senator SCHUMER. Fine. I have no problem as long as I get a 

chance to just continue this line of questioning, Mr. Chairman, 

after Senator Warner. That is fine with me. 

Chairman HATCH. Unless Senator Kennedy comes in, but we will 

work it out. 

Senator SCHUMER. Please. 

Mr. COMEY. Thank you, Senator. Thank you, Mr. Chairman. 

It is a question that I am not neither comfortable nor equipped 

to answer with respect to a particular case, Senator. My—as you 

and I discussed, what I would do in this circumstance is, if I am 

fortunate enough to be confirmed as Deputy Attorney General, is 

do what I do every day when I am involved with a case, is make 

sure I have a mastery of where we are factually, understand the 

law, and decide what is appropriate with respect to any of the 

issues that you have raised, and make my best judgment in that 

area and give my best advice. 

36

Senator SCHUMER. But you would not rule out, by any stretch of 

the imagination, recommending to the Attorney General that he 

recuse himself? 

Mr. COMEY. Certainly not. I am not in a position to rule anything 

in or out. I do commit to you that I approach this as a professional. 

And you mentioned integrity and loyalty, there’s no choice in my 

mind. Loyalty’s a terrific thing, but integrity and the love of my 

family is all I have left at the end of this life, and so that is paramount in my mind. There is no conflict there for me. 

Senator SCHUMER. Thank you, Mr. Chairman. I would be happy 

to defer to my senior colleague from Virginia. 

Senator WARNER. I thank the Chair and my colleague and good 

friend from New York. 

Chairman HATCH. Happy to have you here. 

PRESENTATION OF JAMES B. COMEY, JR., NOMINEE TO BE 

DEPUTY ATTORNEY GENERAL, BY HON. JOHN WARNER, A 

U.S. SENATOR FROM THE STATE OF VIRGINIA 

Senator WARNER. Having listened to his lasts phrase, I have two 

observations. One, I am going to take it and use it myself, and I 

am not going to attribute it to you. 

[Laughter.] 

Senator WARNER. I like that phrase, and I can simply say, with 

the unanimous consent of this Committee, I will just submit my 

statement on behalf of this very distinguished individual, who I 

have known for some time. 

Chairman HATCH. Without objection, we will put that statement 

in the record. 

Senator WARNER. So you are on your own, my friend, and you 

are doing magnificently. Just keep rolling. 

[Laughter.] 

Senator WARNER. Thank you. 

[The prepared statement of Senator Warner appears as a submission for the record.] 

Chairman HATCH. Thank you, Senator Warner. Thank you for 

taking time out of what we know is a horrendous schedule, and 

being here to lend your support to Mr. Comey. 

I am not going to ask any more questions. We will turn to Senator Schumer. Can you finish in one— 

Senator SCHUMER. Thank you, Mr. Chairman. I appreciate it. As 

you know, this is a very important issue to me, and I am trying 

to approach it as fairly as I can, but I do need some more time here 

to flesh this out a little bit. 

Chairman HATCH. Happy to do it. You have 10 more minutes. 

Senator SCHUMER. Thank you. 

Let us be specific. I will not even use a hypothetical here. The 

closeness of the Attorney General to Karl Rove in terms of their 

being political consultants, having a long and ongoing relationship, 

I have no idea if Mr. Rove did this or did not. I am not even pointing the beginning of any finger. But he is obviously a possible person who did it. He did say, I guess, it is reported, that Joe Wilson’s 

wife was fair game. That would mean any prosecutor would want 

to interview him. Again, just please tell me, given that close relationship, how could there not be a conflict? That is what I do not 

37

understand here. And again, the happiest thing I would be is if 

they would appoint a independent counsel of stature and let the investigation go forward under—not independent counsel, excuse 

me—special counsel, all of us would go on to other things with the 

confidence that we would get to the bottom of this and then the 

chips would fall where they may. 

But the closeness of that relationship is well known. It has existed over 10 years. Knowing you, I believe in my heart that if you 

approach that relationship just with Mr. A and Mr. B, you would 

have a strong inclination to say there ought to be some kind of 

recusal. Just elaborate a little more for me. Someone is a consultant to someone. Someone is a friend of someone. Someone is a political associate of someone. They have worked together long and 

hard. I mean the bottom line is you protect the law deeply and almost religiously, which I admire. It would seem to me that given 

the fact that there are many other people who could be capable of 

getting to the bottom of this without those at least appearances of 

conflict, that that recusal is sort of a no-brainer. 

Just again, tell me a little more about your thinking in general. 

Mr. COMEY. Well, Senator, as I said earlier, I think it is unwise 

for anyone in my position—I know it’s unwise for me—to talk about 

a pending matter. Among other reasons, as your question highlights, it requires me to assume facts about who’s what—in what 

capacity in an investigation, witness, subject, target. 

As I said to you, what we did in the case that I mentioned with 

the financial services company was not stop once I found out someone was connected to my supervisor, but try to figure out from 

some more investigation a number of key things, including what 

was the company’s status in our investigation. And because there 

are plenty of situations that we encounter where one of my supervisors can have—in fact I know of one, where his mother was a 

bank teller at a bank that we were investigating, and—his mom 

wasn’t in any trouble—and we concluded that there was no reason 

for that, to raise that significant issue. And so that’s why I sort of 

steer clear of the specific and return to the general, which is incredibly important, and that is two things, what you mentioned, 

my love of law, and love of integrity and love of the institution that 

I believe is shared by the people that I’m going to work for and 

with, by the Attorney General and all the folks who will be below 

me if I’m confirmed. 

So I approach it with an open mind. I approach it with a careful 

enough character that I make sure I understand facts and understand law, and then make a judgment that I believe is the right 

judgment. That’s my totem is what is the right thing? 

Senator SCHUMER. I know Senator Kennedy is here, and I have 

a different line of questioning, but if you like, Mr. Chairman, I 

would certainly defer to Senator Kennedy. 

I just had one final question. Let us just say, hypothetically, you 

come to the conclusion that the Attorney General should recuse 

himself, which you said you might or might not, but it is possible 

that you would, you have not ruled it out, which I appreciate. And 

you recommended to him and he says, ‘‘No, here are the reasons, 

James, that I do not think I should.’’ And you feel quite strongly 

that he should. 

38

Will you just say, ‘‘Well, he has overruled me and that is that?’’ 

Would you go to another arbiter? Would you—what would you do? 

You have had to have thought about that—well, I asked you about 

it yesterday, so you had to have thought about it overnight. It is 

not an easy question. 

Mr. COMEY. And I appreciate your doing that. We are not going 

to conduct cross-examination in the Department like that, but I appreciate it. 

Senator SCHUMER. I would not want you to. Do not get any ideas 

about this investigation either to do that. 

[Laughter.] 

Mr. COMEY. No. We will be tougher, but you were extraordinarily 

fair in that regard. 

Really impossible for me to answer in that hypothetical form. 

People disagree with me every day, including my underlings in the 

U.S. Attorney’s Office. I’ll say, ‘‘I think we ought to do it this way.’’ 

They say, ‘‘You’re a bonehead. Here’s the way we ought to do it.’’ 

And they explain to me why it ought to be done that way, and ultimately agree. 

You are asking me to imagine an apocalyptic situation that I 

don’t expect to encounter. I would not take this job if I thought I 

was going to be working with people who didn’t share my love of 

the law and love of the institution. So I don’t think I’ll ever find 

myself in that position. I can commit to you though that—because 

I talk so much about integrity and about this great group behind 

me—that’s what I really care about. I don’t care about politics. I 

don’t care about expediency. I don’t care about friendship. I care 

about doing the right thing. And I would never be part of something that I believe to be fundamentally wrong. I mean obviously 

we all make policy judgments where people disagree, but I will do 

the right thing. 

Senator SCHUMER. I have more questions, but I defer to Senator 

Kennedy if you would like, and then I will resume. 

Senator KENNEDY. Thank you, Mr. Chairman, and thank you, 

Senator Schumer. 

I am going to come back to what Senator Schumer mentioned in 

somewhat a little different way. But first of all I understand we 

have your four daughters and a son that is here. 

Mr. COMEY. Yes, sir. 

Senator KENNEDY. I am sure they have been presented. I am 

sure they have had a long afternoon. 

Mr. COMEY. Two were evicted, Senator. The 6-year-old and the 

3-year-old are on furlough. 

[Laughter.] 

Senator KENNEDY. Keeping their interest is challenging at the 

best of times, and particularly at a hearing. So we thank you for 

being here and we welcome your family. 

I welcome Mr. Comey to the Committee, and I have had the opportunity to meet with him, heard much praise of him by those 

who know him well, and I am encouraged that we will have a Deputy Attorney General of high caliber and integrity if we confirm 

him. The Deputy Attorney General is one of the most important officials in the Federal Government, especially when the Attorney 

General has close ties to the President. The Deputy may often be 

39

in the day-to-day charge of the Department. When my brother was 

Attorney General his Deputy Attorney General was the outstanding Denver lawyer, Byron White, who performed so well as 

Deputy. President Kennedy appointed him to the U.S. Supreme 

Court in 1962. His successor was Nick Katzenbach, war hero and 

law professor, who also did an outstanding job, was promoted to 

Attorney General when my brother came to the Senate in 1965. 

So Mr. Comey has many superb models to guide him as he meets 

the new challenges. Perhaps the most relevant one today is that of 

William Ruckelshaus, Deputy to Eliot Richardson, who was Attorney General during the Watergate crisis as part of his confirmation 

proceedings. Mr. Richardson made a clear commitment to the Committee, the Congress and the Nation that he would not fire the Watergate Special Prosecutor, Archie Cox, except for extraordinary improprieties. And when Cox investigated the White House too well, 

President Nixon ordered him fired. Richardson refused and resigned. Ruckelshaus, as Acting Attorney General, also refused and 

resigned. 

Those acts of courage and integrity by both the Attorney General 

and the Deputy Attorney General, which took place exactly 30 

years ago this month, stand out in the annals of the Justice Department as moments which all of us hope will never have to be 

repeated. 

We are faced today, however, with a serious problem, a possible 

White House abuse of power involving the disclosure of the name 

of the CIA covert employee. The President himself has asked for a 

vigorous examination of the alleged security leak, and the intimidation campaign at the White House. The Justice Department has 

begun the investigation, but it is far from clear, the integrity of 

that investigation, especially in light of the close ties between the 

Attorney General, the press and the White House staff. 

Many of us on both sides of the aisle are hopeful that the appointment of Mr. Comey will facilitate Attorney General Ashcroft’s 

decision to recuse himself from the investigation so that Mr. Comey 

will be serving as the Acting Attorney General for the purposes of 

the investigation. 

Obviously, we do not expect Mr. Comey to become part of a new 

Archibald Cox situation, but his impressive qualifications and the 

timing of his nomination are auspicious. 

Mr. Comey and I have had a full and frank conversation about 

this prospect, and based on that discussion, I believe that once he 

takes office he will very promptly gather the available facts on the 

allegations, including the results of the investigation thus far, and 

if the Attorney General has not already decided to turn the matter 

over to Mr. Comey, Mr. Comey will decided for himself whether the 

public interest in a credible investigation requires the Attorney 

General to recuse himself and will advise the Attorney General accordingly, and if he is given responsibility for the investigation, Mr. 

Comey will insist that he and only he will make the further decision as to whether the public interest requires the appointment of 

a special counsel. 

Since there is now no statute on special counsel, Mr. Comey will 

follow the precedent set by Attorney General Richardson, and ProVerDate 0ct 09 2002 16:15 Jun 08, 2004 Jkt 094064 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93948.TXT SJUD4 PsN: CMORC
40

fessor Cox in 1973, and consult with the members of this Committee on the selection of and the mandate for the counsel. 

Mr. Comey, I know you will clarify the record if you take issue 

with the accuracy of any of the conclusions I have reached from our 

discussions on Monday. 

Mr. COMEY. Senator, I thought I heard you just say that I’ve 

committed to do what Eliot Richardson did. 

Senator KENNEDY. No. I have indicated that—I said given—Mr. 

Comey will assist—he will make the—requires of a special counsel. 

Since there is no statute, there is no statute on special counsels, 

the statute, which is the original statute that was used even in the 

special counsel statute, was basically the one under which the—

came about for the establishment of the special counsel at the time 

when Attorney General Richardson and Professor Cox appeared before this Committee and was worked out, Republican and Democrat 

at that time. 

And what I am asking you is that since there is no statute on 

special counsels, if you reached a decision and a judgment, would 

you then feel that you would follow the special counsel statute that 

was worked out at that time, which is the basic structure? 

Mr. COMEY. I’m sorry, Senator. 

Senator KENNEDY. Then would you also consult with the members of the Committee at that time as well. 

Mr. COMEY. Senator, I thank you for that, and I agree with you. 

I think Eliot Richardson and Deputy Attorney General Ruckelshaus are two of the reasons that this institution has such credibility because of the kind of people that have worked there, and 

they being two shiny examples. 

There is in place a regulation. In preparing for my, I hope, new 

job, I’ve read it, 28 CFR 600, which is the regulation governing to 

appointment of special counsel propounded by Attorney General 

Reno. So I think in the first instance I would be obligated, and 

even if I weren’t, I think that would be the prudent decision. Anyone considering the appointment of special counsel would go to that 

regulation and look at the procedures laid out there. 

Senator KENNEDY. So that would be the statute that you would 

follow if it was necessary to trigger? 

Mr. COMEY. Yes, sir. And I believe it’s been used once. Attorney 

General Reno used it to appoint former Senator Danforth as special 

counsel in 1999, and that would be the starting place. In terms of 

who else I might or might not consult if I ever found myself in that 

position, I’m really not in a position to say. 

Senator KENNEDY. There are probably four areas that I would 

like to talk with you about. One is on the civil rights issues. The 

Department of Justice has been the guardian of America’s civil 

rights laws. The nature of the civil rights violation have changed 

since the days when the Department was involved in the historic 

efforts such as the desegregation of the University of Mississippi. 

The U.S. Marshals were needed to protect those seeking to integrated. The Department of Justice seems to be filing fewer cases 

than the past, and fewer pattern or practice cases, particularly in 

the areas of job discrimination. Though there may be difference of 

opinion in certain areas, most Americans support, and I am sure 

that members of the Committee support the basic core of the work 

41

that the Department does in the area of civil rights and enforcing 

well-established statutes of the Civil Rights Act, of the Fair Housing Act. 

If you are confirmed to the position of Deputy Attorney General 

will you work to ensure the Department of Justice takes prompt action in response to various civil rights violations? 

Mr. COMEY. Senator, as I think you and I both agree, that is one 

of the things that makes the Department of Justice special. It is 

one of the things that really only the Department of Justice can do, 

and that is pursue civil rights cases. It is something that I personally have taken very seriously as a prosecutor. 

Yesterday my office in New York indicted a former New York 

City police officer for killing a young man by throwing a radio at 

him as he rode his bicycle and knocking him off his bike, and then 

not reporting the head injury of the young man. So we indicted him 

in a civil rights case, and that’s just one example of many that I 

think makes us still a special place in the area of civil rights. 

And I do commit that it would remain for me personally and for 

the Department, a priority. 

Senator KENNEDY. We talked about this last week along with 

several of my colleagues on the Committee. I introduced a bill to 

renew the Undetectable Firearms Act, make it permanent. The 

Undetectable Firearms Act, known as the plastic gun law, makes 

it illegal to manufacture, import, possess, or transfer a firearm not 

detectable by walk-through metal detectors or airport X-ray machines. Only firearms necessary for certain military intelligence use 

are exempt. You know the background law was enacted in 1988 

and then re-enacted, but it expires December 10th. 

The bill is supported by all the major gun safety organizations, 

the International Brotherhood of Police Officers, Airline Pilots Association, flight attendants. Can you speak for the Department on 

whether they are going to support our bill? 

Mr. COMEY. Yes, Senator, I can. Even though I am not yet at the 

Department, I did see that you asked about that at the hearing my 

great friend Pat Fitzgerald testified at, and so I found out. The Department supports the extension of that law. 

Senator KENNEDY. Okay. Well, after you are confirmed, we will 

be looking for a good letter from you indicating support on that. 

Let me ask you about the— 

Chairman HATCH. You will learn to be so forthright. 

[Laughter.] 

Senator KENNEDY. I had a heads up on that answer, Mr. Chairman, before this. 

I want to raise the issues of hate crimes. You are familiar with 

the issue, the challenge, the problem, the limitations that exist 

under the existing law. And after September 11th, we saw a 

shameful increase in the number of hate crimes committed against 

Muslims, Sikhs, Americans of Middle Eastern descent. The Justice 

Department has expressed their commitment to investigating and 

prosecuting the backlash hate crimes. The Department’s ability to 

respond was severely limited by the outdated and unnecessary 

laws. 

Will you make it a priority as Deputy Attorney General to work 

with us in trying to fashion legislation to deal with this challenge? 

42

Mr. COMEY. Senator, hate crimes are among the things that most 

motivate prosecutors because folks are victimized not just for the 

usual awful reasons but for particularly awful reasons having to do 

with race, creed, color, orientation, things of that sort. And there’s 

nothing that we out in the field take more seriously. And speaking 

from the field’s perspective, I have been very proud of what the 

U.S. Attorneys and I think the Department as a whole did in the 

wake of September 11th, that it was not just empty rhetoric. When 

the word went out to the field, make sure that we protect our Arab 

American citizens and visitors from backlash, I mean, that was 

really meant and really pursued, and I don’t think just by the 

Feds, but by local departments and State organizations as well. 

So it is something that all of us in law enforcement feel very, 

very strongly about. I am not familiar with any particular legislative details, but it is obviously something I care about and would 

work on. 

Senator KENNEDY. On the issue of the death penalty, as United 

States Attorney, Southern District of New York, you have been responsible for reviewing the recommendations made by a Committee 

of prosecutors in your office regarding whether to seek the death 

penalty in particular cases. In turn, you have submitted your recommendations to Attorney General Ashcroft. 

As you know, the Attorney General has frequently rejected the 

recommendations by U.S. Attorneys not to seek the death penalty 

37 times since February of 2001. On several occasions, Federal 

prosecutors have been forced to seek the death penalty against defendants who were willing to plead guilty in return for lengthy 

terms of imprisonment, including life sentences, in order to avoid 

the death penalty. 

In February 2003, the New York Times reported Attorney General Ashcroft had overruled death penalty recommendations by 

U.S. Attorneys in New York at least ten times. 

How many times has the Attorney General overruled your recommendations in the Southern District? 

Mr. COMEY. Senator, I don’t know that that’s a matter of public 

record because some of those cases may be pending. The New York 

Times has reported that I was overruled in two cases. I used to say 

they’re a very accurate newspaper. But I have commented publicly 

on that in response to the Times’ reporting that I was overruled. 

Senator KENNEDY. Well, is that classified? Or what is it not a 

matter of public record? 

Mr. COMEY. I don’t think it’s—it’s certainly not classified, but I 

would imagine that while the cases are pending, we certainly 

want—to the extent we would not otherwise be reluctant to release 

internal deliberations in the Department, we certainly wouldn’t 

want to be speaking about decisionmaking on cases that may or 

may not be going to a jury on the death penalty. 

Senator KENNEDY. Just then can you answer, has the Attorney 

General overruled your recommendation in any case where the defendant, without getting into the specific names of the cases, where 

the defendant was willing to plead guilty and receive a sentence of 

life in prison? 

Mr. COMEY. Senator, I have the same concern because I’m thinking about a particular case, or cases, that is pending and I don’t 

43

want to do anything to influence them because we have some the 

juries are going to be selected shortly. 

Senator KENNEDY. It has been reported that Federal prosecutors 

have failed to persuade the jury to impose the death penalty in 15 

of the last 16 trials in which they sought it. During this administration, only five death sentences have been imposed in 34 Federal 

capital trials. Why do you believe the Justice Department is losing 

so many death penalty cases? 

Mr. COMEY. Death penalty cases are among the hardest cases to 

try, and as they should be, among the hardest cases to obtain a 

death penalty because of the safeguards built into the Federal 

death penalty statute. It is stacked in favor of life, and I think 

most prosecutors support that, that it ought to be the extraordinary 

case in which we are able to obtain the death penalty. 

So I’m not in a position to say whether the numbers are any different across administrations. I do know from having been involved 

in these cases that they’re very hard to win. I was involved in one 

in Richmond under the prior administration where we sought the 

death penalty against four defendants in the same trial, and the 

jury returned life verdicts on all four. 

And as I said, I don’t ever want to be in a situation where I’m 

saying it ought to be easier to seek the death penalty. These are 

the decisions we as prosecutors and as the Department of Justice 

take most seriously. I know all U.S. Attorneys, as I do now, debate 

them, discuss them, analyze them internally before making a recommendation to the Department of Justice. There is no harder call 

I make as U.S. Attorney. And as I said publicly at the time of the 

New York Times article, the fact that the Attorney General might 

disagree with a U.S. Attorney does not—and maybe I was too colorful. I said ‘‘does not mean either of them is out to lunch.’’ These 

are often very, very close questions, and I believe the Department 

has an obligation, one that I recognized even from the field, to 

make sure that the death penalty is fairly administered across the 

country. There has to be someone in that high fire tower looking 

out all over the country and saying we want a defendant in Alabama to be treated on identical facts similarly in New Hampshire. 

And that’s the job of headquarters. 

Senator KENNEDY. I want to go to another issue on this judicial 

blacklist. As you know, earlier this year a number of controversial 

sentencing provisions were added at the last moment to the Amber 

Alert law on missing, abducted, and exploited children. These provisions, called the Feeney amendment, had nothing to do with protecting children and everything to do with handcuffing and eliminating fairness in our Federal Sentencing Commission. 

Chief Justice Rehnquist said, ‘‘They do serious harm to the basic 

structure of the Sentencing Guideline system, seriously impair the 

ability of courts to impose just and responsible sentences.’’ 

One of the most troublesome provisions in the Feeney amendment allows the Attorney General and the House and Senate Judiciary to establish judicial blacklists, detailed reports on the sentencing practice of individual judges. This provision has drawn criticism from Republican-appointed and Democrat-appointed judges 

alike. Chief Justice Rehnquist has said that it potentially amounts 

to an unwarranted and ill-considered effort to intimidate individual 

44

judges in the performance of their judicial duties, cautions that it 

should not be used to trench upon judicial independence. 

Another judge, Reagan appointee Paul Magnuson, of the District 

of Minnesota, recently wrote, ‘‘This report requirement accomplished its goal. The court is intimidated. The court is scared to depart. The reporting requirements will have a devastating effect on 

our system of justice, which for more than 200 years protected the 

rights of citizens. Our justice system depends on a fair and impartial judiciary that is free from intimidation from other branches of 

Government. The departure reporting requirements constitute an 

unwarranted intimidation of the judiciary.’’ 

Then on June 24th, Judge Joseph Martin, a Bush I appointee 

and former U.S. Attorney, Southern District Court, conservative 

record on criminal issues, announced he was retiring from the Federal bench because he no longer wants to be part of an unjust 

criminal justice system. He cited the Feeney amendment as Congress’ most recent assault on judicial independence, an affront to 

intimidate judges. 

What is your opinion regarding Judge Martin’s comments and 

resignation from the bench? 

Mr. COMEY. I have great respect for Judge Martin. He held the 

job that I now hold, and I think he was a very, very fine district 

court judge, and I know him socially and professionally. I certainly 

respect Judge Martin’s opinion. He was I don’t think ever a fan of 

the Sentencing Guidelines. My response whenever he and I discussed it is, ‘‘Judge, I’m a servant of the law. Congress passed the 

law. Congress passed the punishments. And I believe my job is to 

make sure that they are fairly carried out and that I never do anything to undercut that.’’ 

And there is a risk that prosecutors can do that by not being 

forthright in the way they charge crimes and insist upon plea resolutions to those crimes. So I respect Judge Martin, and I’m sure 

were he a legislator, he would vote differently, and that’s something I respect. 

Senator KENNEDY. Well, this is a continuing issue where there 

is obviously division, even on our Committee. But it is one that is 

a very key aspect of the criminal justice system. And we will be 

wanting to visit. 

I am going to submit some issues on immigration, which is a 

cause, particularly about law enforcement and immigration and 

community policing. We talked briefly about that, and you indicated your own kind of personal experience in noting sort of the 

challenges that they have in community policing and also whether 

the local enforcement can enforce the immigration laws. But I will 

submit questions on that. But I was impressed both by your sort 

of knowledge and awareness of what the considerations are on that 

issue. 

Let me just ask you just finally about the Department of Justice 

Diversity Report. You are familiar with this report. It recently released a heavily redacted report on diversity, and it is my understanding the report which was prepared by a private consultant examines the issue of diversity at DOJ in such areas as hiring, promotion, and retention of DOJ attorneys. 

45

While the Department is to be commended for the commissioning 

the report, I am extremely troubled by the Department’s treatment 

of the report since it was completed. The DOJ Diversity Report 

found that white lawyers are far more likely than minorities to 

hold powerful and well-paid positions in the Senior Executive Service. Men are about 50 percent more likely to be Senior Executive 

Service than women. Pay grade DOJ component are taken into account. Minority and female attorneys are paid significantly less 

than their white male counterparts. The attrition rate for minority 

attorneys is 50 percent higher. 

According to the press accounts, for more than a year the Department sort of ignored the requests, including Freedom of Information requests, to release the report. When it finally did publish it 

on the DOJ website, substantial areas of the report were blackened 

out. 

Unfortunately, the manner in which the Department has treated 

the report gives the distinct impression that the Department commissioned the report and then left it on the shelf, ignoring the conclusions instead of seeking to correct the internal problems. 

Senator Leahy and I sent a letter to the Department asking that 

the report be provided to the Committee as soon as possible so we 

could have the correct version of the report. 

Are you familiar with the report? Do you know about it? Would 

you have any problems making sure that we had access to the 

original report? 

Mr. COMEY. I’m familiar with the report from the press accounts, 

Senator. I haven’t read it. I think it’s a point of pride, actually, for 

the Department of Justice and one of the reasons I think Larry 

Thompson was such a great Deputy Attorney General that he initiated this. As far as I can tell, no one had ever done this before, 

and he said, ‘‘I want somebody to come in and scrub what we are 

doing to figure out how well we are doing.’’ 

And my sense of it is—even though I haven’t read it, I have seen 

the conclusions of it reported—that we are doing very well, not as 

well as we can do—we can always do better, but certainly better 

than other major law employers, law firms, and State legal organizations. It’s something I care passionately about, have worked very, 

very hard on in Richmond and in New York. I know that the Department has already begun enacting some of the report’s suggestions. One of the things that I was so thrilled to hear about is that 

they’ve set aside money to help young lawyers, minority lawyers 

coming out of law school loaded with debt, to help them defray the 

costs of those loans, because my challenge always as a chief prosecutor in attracting minority lawyers was these kids come out of 

law school and they’re broke. They tend to be more broke than 

their non-minority counterparts, and they get the golden handcuffs 

from the big law firms slapped on them, and they never come off. 

And so I’m thrilled that the Department is moving forward on 

this. As I said, I care very much about diversity, Senator, and, of 

course, I will work on it as an issue and follow up. 

Senator KENNEDY. Okay. After you are approved, which I expect 

that you will be, we will follow up on the exchange of correspondence. 

Thank you very much, Mr. Chairman. 

46

Chairman HATCH. Thank you, Senator. 

Senator Feingold? 

Senator FEINGOLD. Mr. Chairman, I am going to, if I could, defer 

to Senator Schumer, who said he wanted to finish a line of questioning. 

Chairman HATCH. That would be fine with me. 

Senator FEINGOLD. Then I would prefer to go after that. 

Chairman HATCH. Can you finish in the remaining 5 minutes 

you have, Senator Schumer? 

Senator SCHUMER. I was hoping for 10. 

Chairman HATCH. It is the second round. Why don’t we give you 

10, but finish in the 10, will you? 

Senator SCHUMER. Thank you. Okay. I will do my best. 

Chairman HATCH. We will give you a full 10, and then we will 

turn to Senator Feingold. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Chairman HATCH. I have got to close this down. 

Senator SCHUMER. I have a lot of questions, but I will try to be 

as brief as I can. 

Chairman HATCH. I understand. And we will keep the record 

open for written questions until Friday at 5 o’clock, so all written 

questions will have to be in by Friday. 

Senator SCHUMER. Thank you. 

Another concern of many of us is the opaqueness of the structure 

of this investigation, going back to the CIA leak. No one knows who 

is in charge. This has nothing to do with which witnesses are being 

interviewed, what line. They say Justice Department officials. 

Some people say Mr. Dion is in charge. Some people say, well, 

sometimes he is in charge, et cetera. 

Will you commit to letting this Committee know, letting the public know, the structure of the investigation, who is completely in 

charge, who can overrule that person, et cetera? I think that is 

very, very important because, again, the amorphous sort of ad hoc 

way this investigation seems to have proceeded has troubled many 

people. 

Mr. COMEY. And as I said when we were talking about this earlier, Senator, I don’t know that from the outside I’m in a position 

to criticize or have an opinion on the structure of it. I did read 

Christopher Wray’s testimony before this Committee, and he described it in the way I would have imagined an investigation being 

conducted by the Department, with the career folks reporting to 

the career supervisor and then up to the AAG for Criminal. 

What I can commit to you is, as I said earlier, that if I am fortunate enough to be confirmed as Deputy Attorney General, I will be 

in the chain of command. I will know how the investigation is 

structured. I will, as I said, master the facts, understand the law, 

and take appropriate action or give appropriate advice on a whole 

range of topics, some of which we’ve discussed. 

Senator SCHUMER. But will you let us know what that structure 

is? 

Mr. COMEY. I don’t know that I’m in a position to commit to that, 

Senator, simply because as a career prosecutor I’m very reluctant 

to make any promises about what I will say publicly about an inVerDate 0ct 09 2002 16:15 Jun 08, 2004 Jkt 094064 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93948.TXT SJUD4 PsN: CMORC
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vestigation, any investigation, not just one that involves a subject 

as important as this one. 

Senator SCHUMER. I am not asking, I don’t think anyone is asking for the details of the investigation, which could compromise it, 

but, rather, again, the structure, who is running it. Who is running 

it day to day? Who makes the day-to-day decisions? And how often 

do they consult or do they consult with higher-ups before, say, a 

witness is requested or whatever? We have been assured over and 

over again that there are professional prosecutors in charge. Yet 

we don’t know who they are and in what situations they are making the decisions and what situations they are consulting before 

making decisions with the appointees? 

Now, as I say, I have complete faith in you, but I still think the 

public ought to know that if, say, Mr. Dion is in charge of the investigation, that he has to consult with so-and-so before he can 

make—or that he doesn’t. 

Mr. COMEY. And I would hope, Senator, that as you said, knowing me, if I were the Deputy Attorney General, you would know 

and you and the public I hope would take some comfort from the 

fact that a guy who knows his business and who is committed to 

integrity and the rule of law and running out facts is there and in 

that position. 

Senator SCHUMER. Do you know you will be involved in this investigation yet if you are confirmed? 

Mr. COMEY. I’m certain that I will. I mean, just given the nature 

of the Deputy Attorney General’s job, I’m certain that I will. 

Senator SCHUMER. Okay. Let me ask you this: As you know, 

when we talked yesterday, I am really troubled by the way the investigation has proceeded, particularly in the gathering of information where it seems, either by design or just by accident, different 

groups of people have been notified ahead of time, either in the 

media or by informal discussion, that documents will be requested. 

Is that usual? Do you do that? Is that standard procedure that a 

prosecutor will telegraph that within 3 days, within some period of 

time, within 12 hours, we will request documents? 

Mr. COMEY. With respect to the particular investigation— 

Senator SCHUMER. I am just asking in general. 

Mr. COMEY. Okay. With respect to, for example, white-collar investigations that I participated in, every one is different and it depends upon a host of factors. There are times when we execute a 

search warrant because we simply think the entire entity we are 

dealing with is corrupt. There are other times where we have a 

comfort level with a general counsel or a relationship with a law 

firm of credibility that has been conducting an internal investigation, that we will ask them to pull together relevant things and 

show them to us. There are other times we will serve a grand jury 

subpoena. 

It’s very hard, in my experience, to answer in a vacuum. Each 

case turns on its facts. 

Senator SCHUMER. Have you ever been involved in a situation 

where you have asked an office or a protagonist for documents, 

they said, ‘‘Give us 12 hours before you demand them,’’ and you 

have said yes? 

48

Mr. COMEY. I think so, Senator. I think in some of the white-collar work that we’ve done, companies are very—particularly regulated companies are very sensitive to— 

Senator SCHUMER. Criminal investigations? 

Mr. COMEY. Yes, criminal investigations, to the service of grand 

jury subpoenas, because that triggers—it may be a material event 

in the life of that company and trigger a reporting requirement. 

And so I believe I have dealt with situations where company counsel has said, ‘‘Look, before you hit us with the subpoena, give us 

a chance to pull together what you need to see.’’ 

Senator SCHUMER. They communicated that to their employees, 

that in 12 hours, or whenever, or it was made public that—I mean, 

I understand if you quietly call the counsel and say, ‘‘We are going 

to request them,’’ and he says, ‘‘Give us 12 hours.’’ Wouldn’t you 

naturally say, ‘‘Well, don’t let anybody know until’’—you know, 

don’t let anyone know ahead of time before the issue was ordered? 

Mr. COMEY. Not necessarily, Senator. What I was trying to explain was a situation where a company wants to cooperate with us 

and they say rather than you guys giving us a subpoena that we’ll 

have to disclose to the SEC and to the marketplace, give us a period of time to pull together the relevant records, we’ll send out, 

you know, to all the relevant divisions and ask them to collect their 

documents, and then we’ll provide them to you and we’re going to 

show you X or Y about this investigation. 

Again, as you can tell by my struggling, it’s hard to answer in 

a vacuum, but I believe there have been those situations, and there 

are plenty of situations where we just slap them with a subpoena— 

Senator SCHUMER. That is the usual situation, isn’t it? 

Mr. COMEY. That’s probably more frequent, yes, sir. 

Senator SCHUMER. Let me just ask you this for the record: Do 

you believe that the deliberate exposing of the identity of a covert 

CIA operative is serious crime with potentially devastating consequences to our National security and deserving the prosecution 

to the fullest extent of the law? 

Mr. COMEY. I agree with you, Senator, that it is an extremely serious matter. The only word that a prudent prosecutor does not use 

during an investigation is ‘‘crime,’’ and just for this reason: that if 

you later lock somebody up, they will say you prejudged it and you 

concluded that they had committed a crime. It is an extraordinary— 

Senator SCHUMER. Not referring to this particular—any particular case. I am just saying— 

Mr. COMEY. Any particular case. I’ve learned from some of the 

really fancy counsel I’ve dealt with in New York, you’ve got to be 

careful what you say. But it is—of course I agree with you—an extraordinarily serious matter worthy of fair and aggressive investigation. 

Senator SCHUMER. Okay. Let me ask you this: As a career prosecutor, do you think it potentially helps or hurts the investigation 

for the White House Press Office or for any outside office to conduct its own investigation and then announce that it is satisfied 

that no wrongdoing has occurred on the part of the people they 

have interviewed? Isn’t that unusual? Isn’t that damaging? 

49

Mr. COMEY. I’m in the same place there in being unable to comment about the particular investigation, both because it’s not my 

investigation, at least not yet, and I don’t do that—even if it were 

mine, I don’t do that as a matter of course. So I don’t think I— 

Senator SCHUMER. Well, look, let’s say you are investigating a 

company and the public relations person of the company then said, 

‘‘Well, I have interviewed these people and they are just fine. I 

have gone over questions with them and everything else.’’ What 

would you do? Anything? 

Mr. COMEY. Well, in that hypothetical, I’m not sure what, frankly, difference it would make to my approach to the investigation 

other than I would continue to—I am going to run out every fact. 

I don’t care what someone else’s opinion is. And we encounter this 

frequently with companies that conduct internal investigations. 

That’s terrific and that’s helpful, but we need to run out the facts 

ourselves. And that’s the way I approach investigations. 

Senator SCHUMER. Let me ask you this: It has been reported that 

some former administration officials are consulting with the White 

House on strategy related to this controversy. Are they fair game 

to be interviewed in an investigation? I am not asking whether you 

would or not, but is that appropriate and reasonable to do under 

some circumstances? 

Mr. COMEY. I don’t think it’s appropriate for me to comment for 

the reasons I said. First of all, it’s an investigation I’m not in yet, 

and also, that would illustrate some of the perils of commenting 

about a pending investigation. I wouldn’t ever want in any investigation people to know my view on who should and should not be 

interviewed, what avenues should or should not be pursued. They 

need to know when we handle a case only that we’re on it and that 

we’re going to make our own decisions. 

Senator SCHUMER. Okay. I am going to ask you one more hypothetical related to what we talked to before, and then I will have 

written questions, Mr. Chairman, because I see that my 10 minutes are up. 

You are investigating Enron for corporate crimes. This is hypothetical. Imagine you instructed the general counsel of Enron to 

order all employees to preserve potential evidence. Imagine Enron’s 

general counsel then asked you if he could wait until the following 

morning to instruct employees not to destroy evidence. Would you 

agree to that request? 

Mr. COMEY. I used to use, Senator, Enron as a hypothetical because the Southern District of New York had nothing to do with 

it. 

Senator SCHUMER. Right. That is why I chose it. 

Mr. COMEY. I think in the new job, though, I will, so we will have 

to pick another company name. 

Senator SCHUMER. Pick another company name. 

Mr. COMEY. A very hard question to answer in the abstract. It 

would depend upon a host of factors, as I alluded to earlier, including our relationship with the firm representing them, our sense of 

the entity, a whole bunch of things. 

The one thing that I would know is that certainly since Sarbanes-Oxley was passed, I have a terrific tool as a prosecutor, and 

that is, if somebody destroys a document before I’ve served a subVerDate 0ct 09 2002 16:15 Jun 08, 2004 Jkt 094064 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93948.TXT SJUD4 PsN: CMORC
50

poena, before anything, thinking about that we might be coming, 

then they’ve committed a crime. And that’s often a terrific tool to 

flip people in an investigation. So anybody who did that would do 

it at their peril. 

Senator SCHUMER. I would just say— 

Chairman HATCH. Senator, your 25 minutes is up. 

Senator SCHUMER. Yes, thank you, Mr. Chairman. I think this 

issue deserves more than 25 minutes, to be honest with you, but 

I will defer to your wishes. I just want to make one comment, 

which is this: I do hope that you will think about particularly my 

question about the structure of the investigation. I mean, all of the 

others, I understand that you want to get immersed in the details. 

But I think no matter what happens, for the public to know who 

was actually in charge, what is happening, who can overrule the 

ongoing parts of this, particularly in light of the fact, if there is no 

recusal. You have said you would be willing to recommend recusal, 

and we will see what happens there. But particularly if there is 

not, I think that is really important. And I will reiterate that question to you in writing and ask you to think about it. 

Thank you, Mr. Chairman. 

Chairman HATCH. You are welcome. I appreciate your willingness— 

Senator SCHUMER. And I thank my colleague from Wisconsin. 

Chairman HATCH. I just need to point out that, you know, these 

leaker investigations are the toughest investigations there are. 

Very seldom have they ever found out who it was. And I suppose 

both sides try to exploit those, no matter what. But we expect you 

to handle that in a straightforward, upright, honest manner, and 

knowing you, I know you will. And it is a serious situation, but 

good luck. That has been the experience around here, and, frankly, 

I wish it wasn’t. But that is the way it is. 

Senator Feingold, I hope you can finish in 10 minutes because 

I have got to be in the conference. 

Senator FEINGOLD. I will certainly do it within 25—no, I won’t 

be— 

[Laughter.] 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Chairman HATCH. You will be on my list, is all I can say, if you 

do that. 

I expected Senator Schumer to take longer. He is from New 

York, and he always does take longer, so that is what we expect. 

[Laughter.] 

Chairman HATCH. Senator Feingold. 

Senator FEINGOLD. Welcome and congratulations on your nomination. I would like to first thank you for your service and particularly time you have spent during the last 2 years as U.S. Attorney 

for the Southern District of New York. We know that the Southern 

District has had a critical role in investigating and prosecuting terrorism cases, both before and after September 11th, 2001. 

I would like to use my time to ask you about how you would use 

your experiences to guide you in your new role and about your 

plans to lead the Department on certain issues. The first has to do 

with the U.S.S. Cole investigation. I would like to begin by asking 

you about that incident which took place in October 2000 and reVerDate 0ct 09 2002 16:15 Jun 08, 2004 Jkt 094064 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93948.TXT SJUD4 PsN: CMORC
51

sulted in the death of 17 crew members, including one of my constituents from Fond du Lac, Wisconsin. 

I understand that you and your office had a central role in the 

investigation and resulting indictments in that case. So like most 

Americans I was surprised to learn that on April 11th, 2003, 10 

men, including men suspected of involvement in the Cole bombing, 

escaped from a prison building in Yemen. One month later on May 

15th, the Justice Department unveiled a 51-count indictment 

against two of the escapees, Jamal al-Badawi, and Fahd al-Quso, 

who were indicted on various terrorism offenses. 

I am very troubled that these people were able to escape, particularly when there was an active Federal investigation under way resulting in indictments of two of the escapees. As the U.S. Attorney 

in charge of this investigation, can you tell me what happened and 

what steps have been taken to ensure that the suspects would not 

be able to escape? 

Mr. COMEY. Certainly, Senator. That U.S.S. Cole is one of those 

that I am most proud to have been involved in. My deputy, Deputy 

United States Attorney David Kelley went to Yemen on that terrible October day within 24 hours to help the FBI investigate, and 

has spent years working with the families, I’m sure including the 

family of your constituent, to see that these thus were brought to 

justice. Because the matter is pending in my Court, I’ll try to be 

a little more careful what I would say with a case that was concluded. But what I can tell you is that FBI and my office are working very hard on that continuing investigation, also investigating 

what happened in Yemen. 

As you know, the men you’re talking about were in the custody 

of the Yemeni authorities, not in United States custody, and our 

handling of the case involved close coordination with the Yemeni 

authorities. All I can tell you at this point is it’s something we take 

very, very seriously. There is nothing that I would want more—the 

families feel it more than anyone—but to have these people back 

in custody. It’s a great frustration for us that they escaped. I’m not 

in a position to report what the results of that investigation are 

yet. It’s not done. But it’s something that we take hugely seriously, 

Senator. 

Senator FEINGOLD. I thank you for that. I have made every conceivable effort to find out what happened in any setting that was 

available to me, and if there is something new to tell me in some 

other setting, I would really like to know how this could have happened. So I will have my staff contact you, but I still have heard 

nothing that gives me any clue about how this could have happened. 

Press reports have suggested that the prison where these 10 

were held was not an ordinary prison, but instead a, quote, ‘‘political security prison,’’ unquote. Did you take steps to determine the 

security of the prison where the suspects were behind held? 

Mr. COMEY. I did not, Senator, and I don’t know what was done 

in that regard by the FBI. I don’t. I can’t say at this point. 

Senator FEINGOLD. According to the indictment, al-Badawi was 

recruited by members of Osama bin Laden’s inner circle. Since he 

was known as a senior Al-Qaeda operative, what steps were taken 

to monitor the facility where he was held? 

52

Mr. COMEY. I don’t know the answer to that, Senator. 

Senator FEINGOLD. Well, I thank you for your attempt to respond. I just conclude by saying that I certainly hope this situation 

is not standard practice for the Justice Department or other Federal agencies in any case, let alone a case where close associates 

of Osama bin Laden are actually in custody. It is almost incredible 

to me. I hope it is not representative of the level of attention the 

administration is giving important terrorism investigations requiring international cooperation, but I do appreciate your willingness 

to try to pursue this. 

Let me switch to a different subject. In June the Justice Department Civil Rights Division issued guidance to Federal law enforcement agencies banning racial profiling. I was very pleased to see 

the Department finally take a concrete step to address racial 

profiling, but in my view it still falls short of the pledge made by 

President Bush in 2001 to end racial profiling in America. For example, it does not apply to State and local law enforcement, but the 

guidance does largely adopt the definition of racial profiling that is 

contained in legislation introduced by myself and Representative 

Conyers last Congress, and that we hope to reintroduce again. This 

is a priority issue for me and many members of the House and Senate. I understand that one responsibility of the Deputy Attorney 

General is to ensure that all components of the Justice Department 

implement Department policies. If confirmed, what will you do to 

ensure that the FBI and other components of the Department comply with the Department’s guidance banning racial profiling? 

Mr. COMEY. Thank you, Senator. There is to me, nothing in law 

enforcement that is more wrong and dumber than racial profiling. 

It is morally wrong, morally offensives, and as I think a very forward-looking law enforcement leader, Ray Kelly, the Police Commissioner of New York, with whom I work very closely, explained 

to his troops when he was Customs, it’s also dumb because you 

miss the bad guys. You not only abuse innocent folks, you miss the 

bad guys. 

So it’s something that I am committed and I know this Department is committed to ending. I, like you, think that the guidance 

that was put out is terrific. As you said, it doesn’t apply to the 

States. I certainly know though that we as Feds serve as a role 

model to so many State and local law enforcement organizations, 

that they look to us to set the standard, so I think that that’s a 

terrific step forward, that we’ve set that gold standard. I would expect that as Deputy Attorney General I would ensure, that as with 

other very important policies of the Department of Justice, those 

who violate it are subject to the normal sanctions of—that happen 

in their employment when they violate any important policy. 

I don’t know enough at this point to say what the range of sanctions would be, but it’s, it’s not something that’s on the book just 

for show. It’s a real thing for me and for the men and women of 

law enforcement. 

Senator FEINGOLD. I like your wrong and dumber characterization, because I do this in the spirit of tremendous respect for law 

enforcement people who I know do not think this is a good practice 

and do not want to be associated with the practice, so I appreciate 

that. 

53

As you may know, President Clinton issued an Executive Memorandum in 1999 directing Federal law enforcement agencies to collect data on stops and searches and directing the Attorney General 

to compile and analyze this data. In early 2001 President Bush essentially committed to continuing this directive. President Bush 

pledged to end racial profiling and directed the Attorney General 

to, quote, ‘‘Develop methods or mechanisms to collect any relevant 

data from Federal law enforcement agencies,’’ unquote. A few days 

later the Attorney General announced that he would direct the 

Deputy Attorney General to implement the President’s directive, 

including reviewing the nature and the extent of racial profiling by 

Federal law enforcement agencies. 

I understand the data has been collected by Federal law enforcement agencies and transmitted to the Attorney General. The Attorney General has not yet issued a report on the results of the data 

collection effort. If confirmed, will you commit to providing Congress with a report on the data collected by Federal law enforcement agencies pursuant to these presidential directives? 

Mr. COMEY. Senator, as I said, I am committed, as you are and 

I think all right-thinking people are, to ending racial profiling in 

this country, and it’s certainly something that I know that my 

predecessor, Larry Thompson, the Deputy Attorney General, with 

whom I have had such close association, shared a passion for that. 

I commit to you that it is something that I will pursue very, very 

aggressively. I’m not familiar with the particular data collection 

that you’ve mentioned, but it’s something that I will follow up on, 

and that you can rest assured that I will dedicate myself to following up on eradicating racial profiling and making sure that 

we’re doing it. 

Senator FEINGOLD. Well, obviously, this hearing shows you are 

going to have an awful lot to do, and I know you are going to have 

to get up to speed, but I think a very reasonable time for you to 

report to Congress on this Federal data collection effort would be 

within 6 months of assuming your new position. Will you commit 

to providing this report to Congress within 6 months of your confirmation? 

Mr. COMEY. Senator, I will commit to following up on it. I don’t 

know whether if it committed to that I would horrify people sitting 

behind me. That sounds like plenty of time— 

Senator FEINGOLD. They look okay. 

Mr. COMEY. Okay. 

[Laughter.] 

Mr. COMEY. I don’t mean my children, although they must have 

all left me. 

[Laughter.] 

Mr. COMEY. I can assure you, Senator, that I will look into it, 

and if that is feasible, if that is possible, I will commit to that. 

Senator FEINGOLD. Will you commit to continued collection of 

data on stops and searches by Federal law enforcement agencies to 

allow the Department to monitor whether agencies are in compliance with the guidance banning racial profiling? 

Mr. COMEY. I would assume, Senator, that that’s what my predecessor directed law enforcement agencies to do, that’s something we 

would want to continue. I sit here not knowing enough to be able 

54

to say whether it’s a good idea or a bad idea to continue collecting 

the data, depending on what the first set of data show. My mind 

is completely open on that. My head is largely empty on the details, but my mind is open. 

Senator FEINGOLD. Well, both President Bush and President 

Clinton recognized data collection as a valuable tool. It allows management to determine whether an agency or individual officers are 

engaging in racial profiling. I think it goes directly to your characterization of racial profiling as being wrong and dumber, and this 

is a way to monitor whether it is happening or not. There should 

be some mechanism to monitor progress and determine if goals 

have been met. If you are not relying on data collection, I guess I 

would ask you how would you plan to monitor whether DOJ components and other Federal agencies are in compliance with the DOJ 

guidance banning racial profiling? How would you do it if you 

didn’t have this? 

Mr. COMEY. I don’t know, Senator. Logic tells me that the way 

you suggest is the way to do it, but it is something that I will study 

and figure out. 

Senator FEINGOLD. I thank you, Mr. Chairman. I will reserve the 

other 15 minutes for the next hearing. 

[Laughter.] 

Chairman HATCH. You are always a gentleman, and I appreciate 

it very much. 

Now, the Committee, in closing this, has received several significant letters of support for Mr. Comey’s nomination. Specifically, we 

have received letters from the National District Attorney’s Association, the Fraternal Order of Police and the National Sheriff’s Association, all in support of your nomination. 

Significantly, we received a lengthy letter of support from Helen 

Fahey, who served as U.S. Attorney for the Eastern District of Virginia from 1993 to 2001 under the Clinton administration. She is 

very familiar with Mr. Comey’s work as the Managing Assistant 

U.S. Attorney and Criminal Division Supervisor in the Richmond, 

Virginia office. Now, she concludes in her letter—and I will just 

read this one rather lengthy paragraph out of a really lengthy letter. 

‘‘Mr. Comey is intelligent, articulate and possessed of an outstanding legal mind. He will bring to the position of Deputy Attorney General years of Federal prosecution, experiences covering a 

wide range of cases from violent crime to white collar to terrorism. 

I consider Mr. Comey a friend and one of the most competent attorneys I have had the pleasure to work with in more than 25 years. 

He is respected, admired and genuinely liked by all who have 

worked with him, and I cannot think of anyone more qualified to 

serve as Deputy Attorney General of the United States.’’ 

That is a great letter of support, and I am very grateful to have 

received it, and I am sure you are as well. 

Now, with regard to the sentencing issue that was raised, actually there is no such thing as a Feeney amendment. That was 

modified and modified way down by the Hatch-Sensenbrenner 

amendment, and admittedly, the Chief Justice was upset about the 

Feeney amendment, but I have never heard any upset about the 

55

Hatch-Sensenbrenner amendment, which limit it in very specific 

ways. 

But just to cover that issue for Senator Kennedy and others, Senator Sessions is going to hold a Sentencing Commission hearing in 

November, and I am hopeful that the Senate schedule will permit 

that hearing. 

Finally, on this issue of leakers, I have every reason to believe 

that Mr. Dion is totally competent and capable of taking care of 

this matter. He is a career, long-term career employee, who has always had an impeccable reputation for honesty and decency. Clearly identifying the person who released the employee’s name may be 

difficult, as it always is. I think my colleagues should recall that 

former Attorney General Reno, in June 2000 testimony before the 

Senate Intelligence Committee, upon which I sit also, told us that 

the pool of potential leakers in any administration often is extremely large, she said She goes on to say, quote, ‘‘Almost inevitably’’—this is Janet Reno, by the way, who was the Attorney General in the Clinton administration, quote—‘‘Almost inevitably we 

find that the universe of individuals with authorized access to the 

disclosed information is so large as to render impracticable further 

efforts to identify the leaker,’’ unquote. 

Attorney General Reno went on to say, quote, ‘‘Almost all leak 

investigations are closed without having identified a suspect.’’ 

The best known example of how hard it is to identify those who 

leak information is that it has been some 30 years since someone 

identified only as, ‘‘Deep Throat,’’ passed information to reporters, 

and despite attempts by scores of individuals who tried to find out 

who that individual is, we still do not know who that person is. So 

when I say good luck, it is not just with tongue in cheek, although 

in this case it was, because it is going to be very difficult, and all 

administrations have leaked, and we can even name some of the 

great leakers of the past in both Democrat and Republican administrations. 

But whoever did leak this matter was wrong and committed a 

criminal act apparently. So I am sure you are going to be asked 

to do your very best to try and locate that, as is the FBI and other 

law enforcement people, but to try and make a major political 

event out of this I think may be pushing the envelope just a little 

bit. 

So let me just say this, Mr. Comey, you are really an impressive 

person. Your family is impressive. Your record is impressive. I have 

no doubt you are an honest, decent, honorable man, and that you 

will do this job very, very well, and I intend to work closely with 

you and to help you every step of the way, and when you think we 

could help you more than we are, I would like you to be sure to 

use the open door that I will always for you and let me know what 

we can do better, because we will work together for the best interest of our country and the best interest of safety and protection for 

our American people. 

But this is an important position, one of the most important in 

Government, and I commend you for being willing to take this position and to continue your life in public services. It is a disadvantage in many ways to your family because this is not an 8-houra-day job, this is 18 hours a day, and as you know, Larry ThompVerDate 0ct 09 2002 16:15 Jun 08, 2004 Jkt 094064 PO 00000 Frm 00059 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93948.TXT SJUD4 PsN: CMORC
56

son was worn out because he had just worked himself to death, as 

virtually every Deputy does. 

So I just want to apologize, to let your family know this, that I 

might as well your good wife know this in advance. But if anybody 

can do this job well, it is you. 

So with that, we are going to recess until further notice. And we 

will get you up as soon as we can. We will put you on not tomorrow’s, but next Thursday’s markup, and hopefully they will not put 

you over for a week. We will get you passed out down on the floor 

and get you confirmed before we recess for this session of Congress. 

Mr. COMEY. Thank you, Senator. 

Chairman HATCH. That is as it should be, and I hope everybody 

will cooperate in getting that done. 

Thank you for being here, thanks to your family. We are proud 

of you, and with that we will recess until further notice. 

[Whereupon, at 3:43 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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