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21–706 PDF 2005

S. HRG. 109–46

CONFIRMATION HEARING ON THE NOMINATION

OF PAUL D. CLEMENT TO BE SOLICITOR

GENERAL OF THE UNITED STATES

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

APRIL 27, 2005

Serial No. J–109–16

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

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 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin, prepared 

statement .............................................................................................................. 73

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

statement .............................................................................................................. 74

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

PRESENTER 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin presenting Paul D. Clement, Nominee to be Solicitor General of the United 

States .................................................................................................................... 2

prepared statement .......................................................................................... 71

STATEMENT OF THE NOMINEE 

Clement, Paul D., Nominee to be Solicitor General of the United States .......... 4

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

QUESTIONS AND ANSWERS 

Responses of Paul D. Clement to questions submitted by Senator Durbin ........ 43

Responses of Paul D. Clement to questions submitted by Senator Kennedy ..... 56

Responses of Paul D. Clement to questions submitted by Senator Leahy .......... 67

SUBMISSION FOR THE RECORD 

Sensenbrenner, Hon. F. James, Jr., a Representative in Congress from the 

State of Wisconsin, prepared statement ............................................................. 75

(1)

NOMINATION OF PAUL D. CLEMENT TO BE 

SOLICITOR GENERAL OF THE UNITED 

STATES 

WEDNESDAY, APRIL 27, 2005

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 9:30 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Coburn, and Feingold. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. It is 

precisely 9:30 and the Judiciary Committee will now proceed to the 

nomination of Paul D. Clement, to be Solicitor General of the 

United States. 

Mr. Clement comes to this position with an outstanding record 

in his academic work and his professional work and in Government 

service. He graduated summa cum laude from Georgetown University, received a master’s in philosophy with distinction from Cambridge, a law degree from the Harvard Law School, magna cum 

laude. 

He has served in the Office of Solicitor General for the past four 

years as the Principal Deputy Solicitor General and has argued 

more than 20 cases in the U.S. Supreme Court, which would make 

any lawyer envious. 

Starting the questions a little earlier than anticipated, Mr. Clement, was that beautiful child related to you—is that beautiful related to you? 

Mr. CLEMENT. He was, indeed. 

Chairman SPECTER. He is, indeed. 

[Laughter.] 

Mr. CLEMENT. We will see about that. 

[Laughter.] 

Chairman SPECTER. When I was sworn as an assistant district 

attorney, my oldest son was 22 months, and right in the middle of 

the swearing-in—it wasn’t covered by C–SPAN—he rushed up to 

the bar and started to make a fuss precisely as your child did. So 

I think that is a good omen for all of us. 

Before joining the Government, Mr. Clement headed up the appellate practice of the Washington staff of King and Spalding. He 

2

served as chief counsel to Senator Ashcroft, so he is a member of 

the Senate family. He served as a law clerk to Justice Scalia, and 

also to D.C. Circuit Judge Lawrence Silberman. 

At this point, I am going to turn the hearing over to Senator 

Coburn because I have been invited to come to the White House 

for a signing ceremony. But I appreciated the opportunity to meet 

with you informally earlier this week and know of your outstanding 

record. 

Senator Coburn will preside at the hearing, and I want to thank 

him for taking on this extra task. He has been very industrious as 

a first-term Senator. Of course, he has been a Senator now for almost four months, but he has put in more time already than some 

Senators do in a full term or beyond. He has been at the hearings, 

been at the meetings. Yesterday, we had a lengthy hearing that he 

attended all of. 

We are in the midst of working on a very complicated asbestos 

bill and he has brought special expertise to that issue by virtue of 

his dual profession, Senator and doctor. He will have to decide, if 

he wants to comment, which is first and which is second, but I do 

thank him for presiding at the hearing and I now turn thegavel 

over to Senator Coburn. 

Senator COBURN [presiding.] Thank you, Mr. Chairman. 

Welcome, Mr. Clement. And thank you for those fine words, Mr. 

Chairman. 

I would like to recognize Senator Feingold, if I might, and then 

we will continue the hearing. 

Senator Feingold. 

PRESENTATION OF PAUL D. CLEMENT, NOMINEE TO BE SOLICITOR GENERAL OF THE UNITED STATES BY HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF 

WISCONSIN 

Senator FEINGOLD. Thank you very much, Mr. Chairman. First, 

I would like to ask unanimous consent that Senator Leahy’s statement be included in the record. 

Senator COBURN. Without objection. 

Senator FEINGOLD. Mr. Chairman, it is my pleasure to be here 

and to introduce to the Committee Paul Drew Clement, whom the 

President has nominated to serve as Solicitor General of the United 

States. 

As we all know, the position of Solicitor General is an extremely 

important post in our Government. It is the third-ranking position 

in the Department of Justice, but because the Solicitor 

Generalserves as the voice of the United States Government at the 

United States Supreme Court, the position comes with extra stature and responsibility. 

Paul Clement is a son of Wisconsin and is well-qualified to carry 

out these singular responsibilities. He is a graduate of Cedarburg 

High School, outside of Milwaukee, a summa cum laude graduate 

of the Georgetown University School of Foreign Service, and received his J.D. magna cum laude at Harvard Law School, where he 

was an editor of the law review. He also received a master’s degree 

from Cambridge University, in England. 

3

After he is graduation from law school in 1992, Mr. Clement 

clerked for Judge Lawrence Silberman on the D.C. Circuit and for 

Supreme Court Justice Antonin Scalia. He has worked in private 

practice for the firms Kirkland and Ellis, and King and Spalding. 

In between his stints at those firms, he was then-Senator John 

Ashcroft’s chief counsel on this Committee for two years. 

From the beginning of the Bush administration in 2001, Mr. 

Clement has been the Principal Deputy Solicitor General and has 

served as Acting Solicitor General since the recent departure of Ted 

Olson from that position. He has argued 26 cases before the Supreme Court over the past four years, including some of the highest-profile cases of the past few terms, such as TENNESSEE v. LANE, 

United States v. Booker and the Hamdi and Padilla cases. Paul is 

regarded as a truly outstanding oral advocate, one of the best in 

the country today. 

You can see from this resume that Paul has accomplished quite 

a lot in his still young career. If confirmed, he will be the youngest 

Solicitor General in over 50 years, and only three other occupants 

of the office in its history have been younger than him. One of 

them was William Howard Taft, who became Solicitor General 

when he was only 32 years old. 

Mr. Chairman, I agreed to introduce Paul Clement to the Committee not only because of his impressive resume, and certainly because he worked as an intern during college for a Wisconsin Senator whom I defeated in 1992. No. I am doing this because of how 

he carried out his responsibilities in another case he argued before 

the Supreme Court, McConnell v. FEC, the case testing the constitutionality of the Bipartisan Campaign Reform Act, sometimes 

referred to as the McCain-Feingold bill. 

I am not sure how many people remember that when McCainFeingold passed the Senate, there was some doubt and concern 

about how vigorously the Justice Department would defend it in 

court. I sought and received pledges from both the Attorney General and the Solicitor General at the time in their confirmation 

hearings that they would defend the law if Congress passed it. 

When the time came for oral argument, Ted Olson defended Title 

I, the soft money ban, and Paul Clement argued in favor of the constitutionality of Title II, the provisions dealing with issue ads. Seth 

Waxman, Solicitor General in the Clinton administration, represented the bill’s principal sponsors in the argument. 

Now, that was truly a legal dream team, and Paul’s performance, 

which I witnessed personally, was superb, every bit as good as his 

two senior colleagues. He argued for 40 minutes without notes and 

with complete command of both the intricacies of the statute and 

the legal precedents bearing on the case. In the end, as we all 

know, the Supreme Court upheld all of the major provisions of our 

bill, including Title II, which most legal observers believed was the 

most susceptible to constitutional challenge. 

So, Mr. Chairman, it is based on personal experience that I can 

say with confidence that Paul Clement will faithfully execute his 

responsibilities as Solicitor General. I am sure there will be times 

when I will disagree with a position he and his office will take. 

That internship with Senator Kasten he held long ago was probably a good indicator of that, but I am certain that Paul will perVerDate 0ct 09 2002 11:30 Jun 16, 2005 Jkt 021706 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\21706.TXT SJUD4 PsN: CMORC
4

form his duties with professionalism and integrity and I am truly 

honored to appear on behalf today. 

Thank you, Mr. Chairman. 

Senator COBURN. Thank you, Senator. 

Senator Kohl and House Judiciary Chairman Sensenbrenner 

have asked that their statements be made a part of the record. 

They will be made a part of the record, without objection. 

I just have a couple of brief comments. I, too, am supporting this 

nomination, even though I was very disappointed in the Supreme 

Court review of McCain-Feingold in terms of the limitation of free 

speech. 

I would ask that you now stand and take an oath before this 

Committee. 

Do you swear that the testimony you are about to give before the 

Committee will the truth, the whole truth and nothing but the 

truth, so help you God? 

Mr. CLEMENT. I do. 

Senator COBURN. Thank you. Be seated. 

I just have a few questions for you, if I might, and I am here in 

my capacity as a citizen of the United States, as well as a Senator 

and a doctor, to answer our Chairman’s comment. 

You have been in the Solicitor General’s office since 2001 and 

you have argued 26 cases. What is the change that has come about 

since 2001 to now and what changes will you make in terms of that 

office if you become the Solicitor General of the United States? 

Mr. CLEMENT. Well, Senator, thank you for that question. I think 

that in the time that I have been in the Office of the Solicitor General, I wouldn’t say that the office has changed very much at all, 

and I think that one of the things that is one of the really valued 

traditions in the Office of the Solicitor General is the fact that 

there is a great continuity in the office, there is a great tradition 

in the office. 

As you may know, there really are only two positions in the Office of the Solicitor General that vary from administration to administration. There is the Solicitor General himself or herself and 

then there is one Principal Deputy Solicitor General that vary from 

administration to administration. 

All the other lawyers in the office, all the other public servants 

in the office stay from administration to administration, and I 

think that continuity is really important. And I will certainly look 

for ways to try to improve the operation in small ways and to try 

to fine-tune operations, but I also think that by and large I ascribe 

to the aphorism that if it is not broken, then don’t try to fix it. And 

I think the Office of the Solicitor General, in my humble view, in 

any event, is not broken, and so I wouldn’t envision any major 

overhaul of the office or its functions. 

Senator COBURN. Thank you. I have actually erred. I should have 

given you an opportunity for an opening statement, which I will do 

now. 

STATEMENT OF PAUL D. CLEMENT, OF WISCONSIN, NOMINEE 

TO BE SOLICITOR GENERAL OF THE UNITED STATES 

Mr. CLEMENT. Well, I appreciate that, Senator. I want to thank 

you and thank Senator Feingold. I am honored and humbled to be 

5

before you today. Before I say anything further, I would like to 

take an opportunity to introduce my family, at least those you 

haven’t met yet, to the Committee, and I would like to start with 

my wife, Alexandra. 

I am sure that virtually every married nominee who comes before the Committee makes a point of saying how important their 

spouse is in terms of the support that they receive from them, and 

that their public service really would not be possible without the 

support of their spouse, and that is certainly true in my case. 

But in my case, the very fact that Alex lets me work outside the 

home is really quite remarkable because when I was studying law 

up at Harvard, Alex was across the Charles River at the business 

school earning her MBA. And so every day that she allows me to 

practice law outside the home while she stays home with our three 

boys is a personal sacrifice and an indulgence of my interests, for 

which I am eternally grateful. 

Our three boys were with us. Two of them have survived, it looks 

like. Our oldest is Thomas Antonio. Thomas is 6–1/2 years old and 

he is very happy to be here because it means a day off from kindergarten. Theodore Gerald, or Theo as we call him, is 4 years old, 

and he is pretty happy to be on a day off from preschool, as well. 

Our youngest is Paul Gregory, or P.G., who made an appearance 

and may be with us intermittently, and he is 2 years old. All three 

of the boys, but especially Thomas and Theo, have been promised 

Yugio cards in direct proportion to how well they behave this morning. So we have high hopes. 

My parents are not able to be here today. My mother just had 

major back surgery and my father is helping her with that recovery. So they are both back home. I know they wanted to be here, 

and I just want to express that my gratitude to them for placing 

me on a path that has brought me here today really knows no 

bounds. 

Alex and I are also joined by many friends today, colleagues in 

the Office of the Solicitor General and colleagues at my former law 

firm, King and Spalding. I want to thank them all for being here 

and I really appreciate their support. 

As I said at the outset, I am humbled and honored to be here 

today, and I am humbled, honored and grateful to the President 

and the Attorney General for nominating me, selecting me for this 

post. One of the reasons I am so grateful is that, if confirmed, I 

would have the opportunity to continue to serve with my colleagues 

in the Office of the Solicitor General. 

The lawyers and other public servants in the Office of the Solicitor General are quite literally the most talented group of people 

that you can imagine. Collectively, they represent decades of experience representing the interests of the United States before the 

Supreme Court. They have been justly called the finest law firm in 

the Nation. And because the people in the office also are some of 

the nicest people and the most mutually-supportive people that you 

can imagine, I really personally can’t imagine a better place for a 

lawyer to work. 

One of the reasons it is such a terrific place to work is that the 

office has important responsibilities to each of the three branches 

in our system of separated powers. Most obviously, the Solicitor 

6

General is an executive branch official, and the office defends the 

policies and practice of the executive branch in the courts when 

they are challenged. 

The office quite literally sits at the crossroads of the separation 

of powers as the primary vehicle through which the Article II 

branch of Government speaks to Article III. But, of course, the office also owes important responsibilities to the Article I branch, the 

Congress of the United States. 

Whenever the constitutionality of an act of Congress is called 

into question, outside a narrow band of cases implicating the President’s Article II authority, the office will defend the constitutionality of the acts of Congress as long as reasonable arguments 

can be made in the statute’s defense. 

Finally, the office also owes an important responsibility to the 

Supreme Court of the United States. I have heard reference made 

to the Solicitor General as the tenth Justice of the Supreme Court. 

I am quick to add I have never heard that comment made by any 

of the nine real Justices. 

[Laughter.] 

Mr. CLEMENT. But that said, the Supreme Court itself does acknowledge the special role of the Solicitor General in each and 

every volume of the United States Reports. At the very beginning 

of each volume, immediately after a listing of the Justices, there 

is listing of the officers of the Court. And even before the listing 

of the more obvious candidates like the clerk of the Court, the marshal, the librarian, the reporter of decisions, each volume lists the 

Attorney General and the Solicitor General as officers of the Court. 

Now, I think that reflects, in part, the reality that the Solicitor 

General is far and away the most frequent litigant before the Supreme Court. But it also reflects the reality that the Solicitor General is an officer of the Court. 

The special relationship between the Office of the Solicitor General and the Court is one built on candor and trust. The lawyers 

in the Office of the Solicitor General are advocates, but they are 

advocates like no other. I think former Solicitor General Sobeloff 

captured this point very well when he said that the Solicitor General is not a neutral. He is an advocate, but he is an advocate 

whose client’s business is not merely to prevail in the instant case. 

My client’s interest is not to achieve victory. My client’s interest is 

to establish justice. 

I am very, very hopeful and proud to have the opportunity, if 

confirmed, to continue the fine traditions of the office and to have 

an opportunity to serve in an office that has such important responsibilities to all three branches of Government. 

That is considerably more uninterrupted time than the Justices 

usually give me, so I thank you for your indulgence and I would 

be happy to answer any of the questions you have, Senator Coburn 

and Senator Feingold. 

[The biographical information of Mr. Clement follows.]

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Senator COBURN. I think we just heard that the Justices gave 

you 40 minutes at one time. 

Mr. CLEMENT. But it wasn’t uninterrupted, I assure you. 

Senator FEINGOLD. They interrupted him plenty. 

[Laughter.] 

Senator COBURN. Well, thank you very much. It brings to mind 

a question. How do you decide what cases you are going to challenge? You made the statement if there is an adequate defense 

based on the statute. How do you decide that? 

Mr. CLEMENT. Well, Senator, fortunately, although the ultimate 

decision does rest with the Solicitor General, I don’t have to make 

that decision alone. And so generally when I am considering a case 

where, to take the instance where an act of Congress has been 

called into question, I will have the benefit of the thinking of the 

agency of the Government that is most directly affected by the statute. 

So if you have a statute in the transportation area, for example, 

the general counsel of the Department of Transportation will share 

with the office his views or her views. And then typically whatever 

litigation division in the Department is most directly affected—generally, the Civil Division—will also provide us with their views on 

the question. 

Then one of the career lawyers in our office will provide a thorough memorandum examining the arguments on both sides of the 

issue. A deputy solicitor general will then either write their own 

memo or annotate that memo, and it will really be on the basis of 

those memos that the decision will be made. 

Now, I hasten to add, though, that it is a standard that we would 

apply such that it would be a very rare act where a Solicitor General would not defend an act of Congress. In my time as Acting Solicitor General, I did have to make such a decision once in the context of an appropriations rider that asked recipients of transportation funds to engage in effectively what was viewpoint discrimination. 

After that was struck down by the district court, we made a judgment that we simply did not have a viable argument in defense of 

the statute. It was a very difficult decision. It was a decision 

reached only after careful thought and study. And as I say, that is 

the only time in my time as Acting Solicitor General that I had to 

make such a decision. 

The only time that I can remember Solicitor General Olson making such a decision—again, I think there was only one instance and 

it was in conjunction with a bankruptcy provision that simply 

seemed out of step with the Court’s 11th Amendment jurisprudence 

in a way that we didn’t think there was any viable argument to 

be made in that case either. 

Senator COBURN. Thank you. 

Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Mr. Clement, you noted in your statement that when the constitutionality of an act of Congress is challenged, the office has the 

responsibility to defend that act whenever reasonable arguments 

can be made in its defense. That responsibility, of course, was the 

subject of my questions to your predecessor when he appeared beVerDate 0ct 09 2002 11:30 Jun 16, 2005 Jkt 021706 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\21706.TXT SJUD4 PsN: CMORC
40

fore this Committee and the McCain-Feingold bill was still being 

considered by the Congress. I just want to get on the record your 

response to a question that I asked him. 

Is there any change in your view of the office’s responsibility 

with respect to a statute passed by Congress if the President when 

signing the bill into law expresses grave doubts as to the constitutionality of the statute? 

Mr. CLEMENT. Well, Senator, I think that the basic analysis that 

we would take would really be no different in that case. I do think, 

though, that whatever prompted the President’s grave doubts 

would probably be part of our analysis, and I can imagine a situation where the doubts are so grave that we ultimately decide that 

a reasonable argument can’t be made in defense of the statute. 

That said, though, I would think that if I consider two factors—

one, the fact that the President, who would be my ultimate boss 

at this point, signed the law—and I would take that as one factor, 

and then I would take the fact that grave doubts were expressed 

about the constitutionality. I would say actually the former would 

be more important and a factor I would weight more heavily in 

thinking that there would be reasonable arguments to be made in 

defense of the statute, as opposed to the latter because I think presumably the President himself, if he thought that there couldn’t 

even be reasonable arguments in defense of the statute, would be, 

all things being equal, unlikely to sign the bill. 

Senator FEINGOLD. So the expression of grave doubts goes to 

your analysis, not to your responsibility? 

Mr. CLEMENT. Absolutely, Senator. 

Senator FEINGOLD. Now, let me ask you sort of the flip side. I 

understand that when the Department decides not to defend a statute, it notifies the Senate Legal Counsel so that the Senate can decide whether to intervene in the case. This happened about nine 

times in the Bush administration, including once since you became 

Acting Solicitor General. 

Can you tell me about how that decision is made, who is involved 

in making it, and what kinds of considerations go into that decisionmaking process? 

Mr. CLEMENT. Well, Senator, I would be happy to address that. 

As I was saying earlier, I think that process is one that ultimately 

is a decision that the Solicitor General, or in the one case the Acting Solicitor General has to make ultimately as the decisionmaker. 

But that said, it is the result of an exhaustive process that starts 

with the various affected agencies, continues through the litigating 

division at the Justice Department, and then includes lawyers in 

the Office of the Solicitor General. And at the end of that process, 

there is an ultimate decision that has to be made, and as I said, 

it is not a decision that is in any way taken lightly. 

I can walk you through a little bit some of the thought process 

I had as reflected in the memo that I sent to the Senate Legal 

Counsel in the one case where I had occasion not to defend an act 

of Congress, and it was a specific appropriations provision that told 

the Metro and other recipients of Federal transportation funds that 

they could not run advertisements that took a pro-legalization view 

of marijuana. 

41

And it was a difficult decision because we actually could consider—and again this is reflected in the letter that we went to Senate Legal Counsel and to her House counterpart—we actually could 

conceive of an argument to defend the statute, which is that a recipient of Federal funding could voluntarily decide not only not to 

accept pro-legalization ads, but also could refuse to accept anti-legalization ads or ads to keep marijuana criminalized, and in that 

sense could effectively convert the Federal regulatory provision or 

statutory provision from a viewpoint discriminatory one into a content-based one, and there would at least be viable arguments at 

that point that could be made. 

But in confronting that analysis, it certainly occurred to me that 

it would be very difficult to assume that the same Congress that 

wanted to preclude funding recipients from running pro-legalization ads would simultaneously not want to run ads, say, from the 

ONDCP. So rather than make an argument that could be made in 

defense of the statute, we made a decision—I ultimately made the 

decision that the better course was simply to decline to defend the 

statute rather than make an argument that seemed to be likely at 

odds with Congress’s true intent in that case. 

Senator FEINGOLD. Thank you, that was helpful. 

A last question, Mr. Chairman. 

I am sure you know, Mr. Clement, that one of the most important historical decisions ever made by a Solicitor General had nothing to do with arguing before the Supreme Court. I am old enough 

to remember—I don’t know if you are; I don’t think you—in October 1973, Robert Bork served in the office you will fill if you are 

confirmed. 

When President Nixon ordered the Attorney General, Elliot Richardson, and his deputy, William Ruckelshaus, to fire Watergate 

Special Prosecutor Archibald Cox, they refused and resigned. Robert Bork, as the third-ranking person in the Department, carried 

out the order. 

What do you think you would do if faced with a similar situation? 

Mr. CLEMENT. Well, Senator, that is a very difficult question, and 

I think it is a situation that one Solicitor General did face and I 

think every other Solicitor General would hope that they would not 

face, and so I certainly hope it never comes to that. And I think 

it would really have to depend on the situation that prompted the 

particular crisis, if you will, that led to that situation. 

I can imagine a situation where my best judgment would be that 

with all the respect I would have for the Attorney General and the 

Deputy Attorney General, I would have a different view of matters. 

And I can certainly imagine situations where I would have the 

same view that they would have of matters and take a similar step. 

I would add that my obligations may be potentially relieved in 

one respect, which is, as I understand it, the Associate Attorney 

General is now in the structure who would be the third person to 

face that particular decision before I would. So there would at least 

have to be sort of three fallen soldiers, if you will, before the decision would come to my desk. 

And that would obviously have an influence because then I would 

be—if it came to me, I would already have the benefit of the 

42

thought process of three senior Justice Department officials whom 

I certainly would respect. 

Senator FEINGOLD. But you can certainly imagine a situation 

where resignation would be the only proper course, could you not? 

Mr. CLEMENT. Absolutely. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Senator COBURN. Do you have any further questions? 

Senator FEINGOLD. No, Mr. Chairman. 

Senator COBURN. The record will remain open for one week for 

any follow-up questions. It will end at 6:00 p.m. on Wednesday, 

May 4. 

I have no further questions. The meeting is adjourned. Thank 

you for being here. 

Mr. CLEMENT. Thank you. 

[Whereupon, at 9:56 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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Æ


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