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31–446 PDF 2006

S. HRG. 109–722

CONFIRMATION HEARING ON THE NOMINATION

OF PAUL J. MCNULTY, OF VIRGINIA, TO BE

DEPUTY ATTORNEY GENERAL, DEPARTMENT

OF JUSTICE

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

FEBRUARY 2, 2006

Serial No. J–109–125

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 

MICHAEL O’NEILL, 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

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 4

prepared statement .......................................................................................... 112

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 5

prepared statement .......................................................................................... 115

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

PRESENTERS 

Allen, Hon. George, a U.S. Senator from the State of Virginia presenting 

Paul J. McNulty, of Virginia, Nominee to be Deputy Attorney General, 

Department of Justice ......................................................................................... 1

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

Paul J. McNulty, of Virginia, Nominee to be Deputy Attorney General, 

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

STATEMENT OF THE NOMINEE 

McNulty, Paul J., of Virginia, Nominee to be Deputy Attorney General, Department of Justice .............................................................................................. 7

Questionnaire .................................................................................................... 9

QUESTIONS AND ANSWERS 

Responses of Paul J. McNulty to questions submitted by Senators Grassley, 

Sessions, Leahy, Kennedy, Kohl, Feingold, Schumer, and Durbin .................. 54

Responses of Paul J. McNulty to follow-up questions submitted by Senator 

Durbin ................................................................................................................... 105

SUBMISSION FOR THE RECORD 

Canterbury, Chuck, National President, Fraternal Order of Police, Washington, D.C., letter ............................................................................................... 111

(1)

NOMINATION OF PAUL J. MCNULTY, OF VIRGINIA, TO BE DEPUTY ATTORNEY GENERAL, 

DEPARTMENT OF JUSTICE 

THURSDAY, FEBRUARY 2, 2006

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 10:05 a.m., in room 

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

Chairman of the Committee, presiding. 

Present: Senators Specter, DeWine, Sessions, Leahy, Kennedy, 

Schumer, and Durbin. 

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

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. The Judiciary Committee will now proceed 

with the hearing for the nomination of Paul J. McNulty, to be Deputy Attorney General for the Department of Justice. 

We have waited just a few moments here for Senator Warner, 

who had been on the premises. But it is five after, so we have Senator George Allen, our distinguished colleague, with us. 

So let us proceed with your introduction, Senator Allen. 

PRESENTATION OF PAUL J. MCNULTY, NOMINEE TO BE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, BY 

HON. GEORGE ALLEN, A U.S. SENATOR FROM THE STATE OF 

VIRGINIA 

Senator ALLEN. Thank you, Mr. Chairman and members of the 

Committee. I thank you for the opportunity to appear before this 

Committee to relate to you and tell you about my friend, Paul 

McNulty. He is here today with his wife, Brenda, and two of their 

four children, Annie and Corey. Their two oldest children are in 

college. One is a freshman—Joe is a freshman at James Madison 

University, over in the Shenandoah Valley of Virginia. 

Let me just say one thing personally before I get into the attributes about Paul McNulty. In the midst of preparing for this 

trial, or this hearing, his mother passed away and they had the funeral earlier this week. Today would actually be her 82nd birthday. 

Our thoughts and prayers are with Paul, and we know that his 

mother is looking down, joining her husband who passed away a 

few years ago, and looking down with pride on their son, Paul, and 

his opportunity to continue to serve this country. 

2

I have known Paul since the days I was Governor. One of the key 

things we tried to do, and successfully did in Virginia was abolish 

the lenient, dishonest parole system and institute truth in sentencing. Paul McNulty was one who I counted on as a very loyal, 

expert, knowledgeable adviser. And thanks to those reforms we 

made in Virginia, Virginia is safer. 

Back in 2001, my colleague, Senator Warner, who will be here 

undoubtedly, we had the honor of recommending to President Bush 

the nomination of Paul McNulty to be U.S. Attorney for the Eastern District of Virginia. The Senate confirmed Paul McNulty on 

September 14, 2001, just after we were attacked by the terrorists. 

The U.S. Attorney’s office in the Eastern District of Virginia has 

played a central role in the war on terrorism ever since. 

Now, there is not time to talk about all the different important 

terrorism cases that Paul has been involved in and has prosecuted 

since he has been in office, but let me relate to the Committee two 

of these cases that Paul has overseen personally during his time 

as U.S. Attorney. 

First, of course, is the case of Zacarias Moussaoui. I know that 

the Chairman joined me in saying let’s make sure that the families 

could somehow view those proceedings since the victims’ families 

are all over the country. Paul was engaged in this effort in unprecedented victim outreach in connection with that case. 

Over the years since Moussaoui was indicted, Paul’s office has 

interviewed over 2,000 victims and maintained regular contact 

with more than 5,000 victims or family members. This effort, I 

think, demonstrates Paul’s compassion for the victims of crime and 

his long-standing commitment to victims rights. 

Also, last November, Paul’s office obtained a conviction of Ahmed 

Omar Abu Ali, an American citizen who joined an al Qaeda cell. 

Abu Ali had plotted to assassinate the President and hijack airplanes. As Paul has said, the evidence presented during that trial 

proved that Abu Ali was a, quote, ‘‘dangerous terrorist who posed 

a grave threat to our national security.’’ The sentencing hearing 

will be later on this month, but Abu Ali faces a minimum sentence 

of 20 years for this crime. 

Under Paul’s leadership, the U.S. Attorney’s office in the Eastern 

District of Virginia has accomplished a great deal in traditional law 

enforcement areas, working with localities in the State combatting 

gangs. The Eastern District of Virginia led the Nation in the prosecution of gun crime for the past 3 years, it lead the Mid-Atlantic 

region in drug trafficking prosecutions, and also dismanted a hightech piracy group that operated servers around the world distributing millions of dollars worth of illegal software and movies. 

Paul has accomplished these things by promoting a series of initiatives, and what I think was very important, drawing upon the 

resources of other Federal agencies, as well as developing close 

working partnerships with State and local law enforcement. 

I am pleased, Mr. Chairman, to say to you that I think that the 

President has chosen very well in nominating someone with a 

strong background in prosecuting terrorism for this important position as Deputy Attorney General. Paul will be a thoughtful, knowledgeable, decent, caring, excellent addition to the Department of 

3

Justice as we continue to fight the global war on terror and keep 

Americans safe. 

I hope, Mr. Chairman, that you all have a good hearing, and I 

respectfully urge you all to move as quickly as possible. Paul 

McNulty has my very strongest recommendation for this position. 

I thank you so much for allowing me to be here, and now I am 

joined—as I said, he would be here directly and here he is, the senior Senator from Virginia. 

Chairman SPECTER. Thank you very much, Senator Allen. We 

knew that Senator Warner was on the premises and we waited to 

accorded him the status as senior Senator. We later heard that he 

had commitments in the Intelligence Committee. So we welcome 

you here, Senator Warner, and look forward to your testimony. 

PRESENTATION OF PAUL J. MCNULTY, NOMINEE TO BE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, BY 

HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE OF 

VIRGINIA 

Senator WARNER. Let the record show I was here at precisely 

9:28 this morning. 

Mr. Chairman, I have listened to my distinguished friend and 

colleague here give a very comprehensive statement. I will just ask 

unanimous consent to place my statement in the record. 

Chairman SPECTER. Without objection, it will be made a part of 

the record. 

Senator WARNER. Mr. Chairman, you and I came up through the 

prosecutorial ranks of the various departments that we have served 

in, in the Justice Department, and as I look on this distinguished 

public servant’s career, it is really extraordinary. He has had the 

background and the experience to take on the challenging tasks in 

the Department of Justice to which our President has appointed 

him. He has my whole-hearted support. I assure this Committee 

that he will fulfill, and even exceed the expectations that all of us 

have as to his capability, knowledge of the law, respect for fairness 

and equality of justice for all. 

So with that, Mr. Chairman and distinguished ranking member, 

Mr. Kennedy, I will put in my statement and you can get on with 

your hearing. 

Chairman SPECTER. Thank you very much for being with us Senator Warner, Senator Allen. Mr. McNulty is a Virginian at the moment. He is also a Pennsylvanian. He was born and raised in Pennsylvania, and if he were being presented to the Armed Services 

Committee, I might be presenting him instead of Senator Warner 

and Senator Allen. 

Senator ALLEN. Notwithstanding that background, we did endorse him for being U.S. Attorney for the Eastern District of Virginia. He had a breadth of experience. 

Chairman SPECTER. Your endorsements are very amendable. 

Senator WARNER. Mr. Chairman, Senator Allen and I have been 

working with the White House and the Department of Justice on 

the successor. 29 individuals came forward to apply for this position, partially because of the extraordinary heritage that this distinguished gentleman left in that office. Hopefully, we will be makVerDate 0ct 09 2002 09:00 Dec 22, 2006 Jkt 031446 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\31446.TXT SJUD4 PsN: CMORC
4

ing that announcement together with the President soon as to his 

successor. I thank you. 

Chairman SPECTER. Thank you very much, Senator Warner. 

Thank you very much, Senator Allen. 

Paul McNulty comes to the proceedings today with an outstanding record, a graduate of Grove City College, 1980, Capital 

University Law School in 1983. Extensive experience as a prosecutor, has been the United States Attorney since 2001, and before 

that was the Principal Associate Deputy Attorney General, was 

Chief Counsel to the Office of Majority Leader of the House of Representatives. He is an adjunct professor from Grover City College. 

I will ask without objection that his extensive biographical material 

be made a part of the record. The position of Deputy Attorney General is one of enormous importance, as the administrative officer 

right behind the Attorney General on the Department of Justice, 

which has so many, many responsibilities. 

Before swearing in, Mr. McNulty, let me ask Senator Kennedy if 

he has any opening comments. 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you, Mr. Chairman. I know we are 

going to be joined by Senator Leahy in just a few moments. If I 

could just take a moment to welcome Mr. McNulty. 

I understand you served on the Legal Service Program, and you 

also received the O’Neill award, as a student. If that is after Tip 

O’Neill, I would be interested in the reach of that award. 

I would like to put my full statement in the record. 

I think you are very much aware of the issues about the extent 

of Executive power and authority that is part of the national debate and discussion at the present time. You are going to be in a 

very important position on advising on the legality and the justification for that kind of authority, the whole range of accountability on prosecutions in the CIA, I am interested in how you dealt 

with those individuals. The President has spoken of accountability, 

and a number of these individuals that have been turned over from 

the CIA to your shop for processing and for prosecution. I want to 

hear you on this issue because this is enormously important for obvious reasons. 

The range of civil rights issues—what the Department has been 

doing, what it has not been doing, the selection of various individuals in the Civil Rights Division, particularly the provisions of the 

Voting Rights Act, the cases that were brought and not brought. 

The areas of immigration, the difficulty and the complexity that we 

are finding now, that has raised enormous kinds of challenges since 

the procedures were changed by the Attorney General, and that 

raised concerns as to the fairness and integrity of this process. 

These are just some of the very important areas that you will have, 

and do have, and have had important responsibilities for, and we 

are looking forward to hearing you out on some of these issues. 

I will put my full statement in the record and look forward to 

the question and answer period. 

I thank the Chair. I ask that the full statement be put in the 

record. 

5

Chairman SPECTER. Thank you, Senator Kennedy. Your full 

statement will be made a part of the record. 

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

Chairman SPECTER. I now yield to the distinguished ranking 

member, Senator Leahy. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. I apologize for the 

delay, but I have been working, as you know, along with Senator 

Durbin and others on the PATRIOT Act. 

As has already been said, of course, this is for the No. 2 position. 

The previous deputies, James Comey and Larry Thompson, had extensive experience as prosecutors. When Tim Flanagan was proposed for this, I questioned the fact that he did not have experience. I am worried that neither the current Attorney General, nor 

the Associate Attorney General, nor the Assistant Attorney General 

chosen to head the Criminal Division, nor the Solicitor General, 

had real experience as a prosecutor before going to the top law enforcement office in the country. 

The President withdrew Mr. Flanagan’s nomination. Of course, 

anyone who reads the papers still sees the questions regarding that 

nomination. I joined Senator Durbin in a letter yesterday to the Attorney General about the role that Mr. Flanagan’s dealings with 

Jack Abramoff and David Safavian played in that decision. We will 

see whether I get a response back. The Justice Department rarely 

responds to my letters, notwithstanding their Attorney General’s 

pledge under oath at his confirmation hearings to be more responsive. 

Mr. McNulty does come to us as the Acting Deputy Attorney 

General and a U.S. Attorney for the Eastern District of Virginia, 

so he has had supervisory experience with criminal matters. I am 

not sure how many cases he has personally prosecuted, but I think 

as Deputy Attorney General, prosecutorial experience and prosecutorial judgment is going to be sorely tested. There are a lot of very 

delicate investigations that you have to oversee, and prosecutorial 

experience will be beneficial, may be critical, and the reason I keep 

mentioning this, Mr. McNulty, is that nobody else has prosecutorial 

experience. You have had supervisory prosecutorial experience, and 

that is a plus. We would like to see more, especially when the 

President has such an expansive view of his power, and the Justice 

Department is the only place left that might serve as a check if 

that power is being used illegally. 

The most recent Deputy Attorney General, James Comey, a respected prosecutor and a long-time Republican, seemed to many to 

have taken that position very seriously, and he appointed a committed, independent prosecutor to carry out investigations within 

the Bush administration. He questioned the President’s authority 

to conduct warrantless wiretapping. He defended career attorneys 

who sought to put the brakes on over expansive assertions of Executive power. He refused to be a ‘‘yes’’ man, and of course, he got 

pushed out of the Department. Unfortunately, the position of Deputy is one where you are supposed to be willing to speak truth to 

6

power and not be a ‘‘yes’’ man. In fact, that is why I voted against 

the current Attorney General, because I felt that he would not be 

willing to say no to anything from the White House. 

I know the importance of that. Ultimately the Attorney General’s 

duty is to uphold the Constitution and the rule of law, and not 

labor to circumvent it. Both the President and the Nation are best 

served by an Attorney General who gives sound legal advice and 

takes responsible action without regard to political considerations, 

not one who develops legalistic loopholes to serve the ends of a particular President or administration. That holds true for the Deputy 

Attorney General, and that holds true whether it is a Democratic 

or Republican administration. 

We see the extraordinary rendition of prisoners to the ‘‘black 

site’’ prisons in the former Soviet Union, something that every 

President, Republican and Democrat, had condemned before this 

administration. Now we are doing it. We saw the scandal of Abu 

Ghraib. We saw the withdrawn torture memo, and we saw the outgoing Justice of the Supreme Court remind us all very forcefully 

that nobody is above the law, not even this President, not even at 

a time of war. 

I first met Mr. McNulty while he was serving as staff for Republicans on the House Judiciary Committee. I remember you as an 

extraordinarily hard-working person, and I suspect you still are. I 

would hope that you would be able to follow Mr. Comey’s example 

of independence and the example of other Republicans like Elliot 

Richardson and William Ruckelshaus, who left rather than violate 

their principles and the law. 

The Eastern District has been the go-to district for terrorism 

prosecutions, national security issues, and detainee abuse allegations. I think we need to understand how much you would be willing, even under those circumstances, to question any assertions of 

presidential power and look out for the individual liberties of ordinary Americans and protecting the law. 

According to a recent letter from the Department of Justice to 

Senator Durbin, since the beginning of the war in Afghanistan in 

2001, 20 allegations of detainee abuse by American civilians, 20, 

have been referred to the Department of Justice. All but one of 

these cases have been assigned to your district with a task force 

under your supervision. Only one of these allegations has resulted 

in an indictment, and that one, incidentally, was the one sent to 

a different district than yours. These have hurt American credibility in the world. The press reports say these referrals include 

one case in which a detainee was killed in CIA custody within 45 

minutes of the beginning of interrogation, and the CIA’s own Inspector General found the possibility of criminality. 

It has been 18 months since the creation of the task force to investigate these. I want to know why, when the military has prosecuted detainee abuse cases—and the Eastern District of North 

Carolina has returned the one indictment so far—nothing has come 

out from your task force. 

I want to know about the President’s warrantless domestic spying program, how you have responded to this. We all want to help 

stop terrorists. I helped write and pass the USA PATRIOT Act. I 

am working on ways to get it re-authorized, but we have to have 

7

some honest answers if we are going to be able to do that, and if 

it is going to have credibility so the American people can trust it. 

Mr. Chairman, I went over my time, but I appreciate your consideration allowing that. 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Mr. McNulty, if you would now stand for the administration of 

the oath. 

Do you solemnly swear that the testimony that you will give before this Judiciary Committee will be the truth, the whole truth 

and nothing but the truth, so help you God? 

Mr. MCNULTY. I do. 

Chairman SPECTER. Thank you. Mr. McNulty, let us begin with 

the introduction of your family. I see some beautiful people sitting 

behind you. I infer they are your family. We do not ordinarily have 

people of that beauty here, so if you would introduce your family, 

we would appreciate it. 

[Laughter.] 

Mr. MCNULTY. Thank you very much, Mr. Chairman, and Senator Leahy, Senator Kennedy, Senator Durbin, for welcoming me 

here today. 

I am very pleased to introduce my family to you. My wife Brenda 

of nearly 25 years is here with me today, and two of my four children. As Senator Allen said, two of my children are in college. We 

thought it best to leave them there. My daughter Annie and my 

daughter Corrie are here, and my niece, Carrie Quinn, is here as 

well, as well as a number of good friends that have made the effort 

to be with me today in this room. 

Thank you very much for giving me the opportunity to introduce 

them. 

Chairman SPECTER. Thank you, Mr. McNulty. We would be 

pleased to hear any opening statement you care to make. 

STATEMENT OF PAUL J. MCNULTY, OF VIRGINIA, NOMINEE TO 

BE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE 

Mr. MCNULTY. Thank you, Senator. I only want to make a couple 

brief points, and allow you to ask your important questions to me. 

Mr. Chairman, in my view, there is no finer agency of Government, perhaps anywhere n the world, than the Department of Justice. When yo consider the mission of the Department of Justice, 

the importance of what the Justice Department is responsible for 

doing in protecting people’s liberties and enforcing law, when you 

consider the men and women of the Department of Justice and the 

broad range of talents, the skill, the courage, the dedication that 

they have, when you consider the commitment to the highest professional standard that DOJ stand for and has stood for for decades, it really is an extraordinary agency of Government. And, 

again, there may be nothing like it in all the world. 

In particular, over the pst 4 years, I have had the privilege of 

leading about 250 men and women who are part of the Department 

of Justice in the United States Attorney’s Office in the Eastern District of Virginia. And of all those 100,000 plus employees of the Department of Justice, these 250 or so folks, in my view, are among 

the finest of all of the DOJ people. Their dedication and skill and 

kindness is really extraordinary, and what they have accomplished 

8

over the past 4 years is a big reason why I am here today. It has 

been an honor and a privilege to serve them. 

I say that because my second point to you, members of this Committee, is that the Deputy Attorney General is entrusted to guard 

all of that. The Deputy Attorney General is entrusted with this extraordinary legacy that the Department of Justice has of guarding 

the rule of law, and I see it, if I’m confirmed, as my duty to enhance, to strengthen, to build what has been established so well 

over the decades. 

So, therefore, Mr. Chairman and members of the Committee, I 

pledge this to you. I pledge that if I am confirmed, that I will use 

all of my energies, by the grace of God, to act with integrity, to do 

what is right, and to be guided only by the law every day I have 

the opportunity and the privilege of serving as Deputy Attorney 

General, if I am confirmed. 

Thank you for your courtesy, Mr. Chairman. 

And I thank Senator Allen and Warner, by the way, for their 

kind introduction, and the President for the honor of being nominated to this very significant position. 

I welcome your questions to me. 

[The biographical information of Mr. McNulty follows:]

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Chairman SPECTER. Thank you very much, Mr. McNulty. We will 

now proceed with our practice of 5-minute rounds for members. 

A key issue is our oversight authority over the Department of 

Justice. This is a subject which I took up in detail with the Attorney General. I sent you a letter summarizing the oversight authority of the Judiciary Committee as summarized in a CRS statement 

of the law, and I told you earlier this morning, when we talked 

briefly, that I would be asking you about it. And to quote some of 

the pertinent sections, the Congressional Research Authority cites 

the law as follows, quote: ‘‘The Department of Justice has been consistently obliged to submit to Congressional oversight regardless of 

whether litigation is pending, so that Congress is not delayed unduly in investigating misfeasance, malfeasance or the maladministration in the Department of Justice or elsewhere.’’ 

This includes, according to this summary, quote, ‘‘The testimony 

of subordinate Department of Justice employees such as line attorneys and FBI field agents, which was taken formally or informally, 

and included detailed testimony about specific instances of the Department’s failure to prosecute alleged meritorious cases.’’ And the 

Committees have been provided with, ‘‘documents respecting open 

or closed cases that include prosecutorial memoranda, FBI investigative reports, summaries of FBI interviews, memoranda and correspondence prepared during the pendency of cases,’’ and it goes 

on. 

I would like your specific agreement that that does represent the 

authority of this Committee on oversight of the Department of Justice. 

Mr. MCNULTY. You have my agreement. 

Chairman SPECTER. Thank you. I like your brevity almost as 

much as I like your agreement. 

We are having oversight hearings, as you know, on the presidential authority on electronic surveillance, and the Attorney General will be coming in on Monday to testify. I do not intend to get 

into those substantive matters with you because we will be hearing 

from the No. 1 man in the Department. And you do not speak for 

the Department at this time until—well, you are Acting Attorney 

General, Acting Deputy Attorney General, but I do seek your response on the question of access by the Committee to legal memoranda prepared by the Office of Legal Counsel or otherwise, your 

view as to the propriety of the Committee having access to that in 

order to more fully question the Attorney General? 

Mr. MCNULTY. Senator, I understand that that’s an important 

question that’s going to be faced by the Committee and the Department of Justice. As I’ve just responded to you a moment ago, I have 

a strong commitment to the role of oversight, and to making sure 

that this Committee has what it needs to fulfill its responsibility. 

I have probably the unusual experience, as Senator Leahy referred 

to briefly about my experience on the Judiciary Committee. I spent 

12 years on Capitol Hill, and I spent a lot of years in oversight 

work. I have dealt with the Department of Justice on numerous occasions. I can’t even think of all the times that I was working on 

situations where we had to get documents or deal with the Department, and we had to work through difficult issues. Sometimes we 

came up with accommodations where the chairman, Ranking MemVerDate 0ct 09 2002 09:00 Dec 22, 2006 Jkt 031446 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\31446.TXT SJUD4 PsN: CMORC
36

ber looked at things, sometimes we were able to provide more access. 

I’m afraid that today, sitting here, though, I’m not able to give 

a response about the availability of certain documents in relation 

to this issue because I just haven’t been involved with it. I became 

just recently aware of the fact of what this request is. I don’t know 

what considerations already have occurred at the Department. I 

know the Department will be working with the Committee to figure 

out how to work through that challenge, but I can’t provide specific 

information about what can be provided or can’t be provided as we 

sit here today. 

There’s a long history to this availability of OLC opinions, and 

I have to learn more about it myself, and I certainly have to consult with others at the Department of Justice about how that’s 

going to be worked out. 

Chairman SPECTER. Mr. McNulty, moving on to another subject, 

on the prosecution of the civilians on the detainee issue, we would 

be interested, to the extent you can tell us, what the status is of 

those investigations and potential prosecutions. 

Mr. MCNULTY. Thank you, Mr. Chairman. Mr. Chairman, those 

cases were assigned to my office for investigation about 18 months 

ago, as mentioned by Senator Kennedy. Deputy Attorney General 

Comey asked me to do it because he believed that my office had 

the experience and the aggressiveness to do that job. It was Deputy 

Attorney General’s Comey’s decision to ask me to do those cases. 

He had called upon my colleague, Pat Fitzgerald, to do a case. He 

had called upon David Kelley in New York to do a case. He called 

upon me to take on these cases. 

Now, there were 19 cases that have been referred to my office for 

investigation. The first thing I did was put together a team of the 

most experienced prosecutors the Department really has. There are 

decades of prosecutorial experience represented in the team I have 

working on this, career, longstanding, hard-charging prosecutors. 

And we took those referrals in whatever shape and condition they 

were in, and they were very thin in the sense of the information 

initially given to us, and we began to work. 

Now, as we’ve been proceeding on the course of these investigations—and they are ongoing investigations—there are a number of 

obstacles that we face in trying to come to the point of bringing 

criminal charges against individuals who have in any way been associated with an allegation of some form of abuse. The obstacles include jurisdiction. We have to deal with—we’re dealing with civilians now, not military personnel. Military personnel are prosecuted 

under the Code of Military Justice. Civilians, who do conduct overseas, have to be prosecuted under the International Jurisdiction 

Statute that was established a few years ago, and that presents 

certain challenges in terms of bringing charges. 

We have issues of access to witnesses, victims. In some of our 

cases our victims can’t be found. We have had real problems in getting access to the potential witnesses in the case. I sent a prosecutor to Baghdad for interviews, and he was outside the Green 

Zone for quite some time and interviewed over 15 people, and we’re 

trying to make progress in a particular case there. We’ve had to 

wait in some cases for the military to complete its work because 

37

our witnesses were tied up with the military side of the prosecution, and you can’t have collateral prosecutions in certain circumstances. You have to wait until those witnesses have testified, 

and then they’re available. 

So like any complex case, time does pass as you try to work 

through the problems, but I assure this Committee that we are still 

working hard on those cases, and it may very well be that in the 

not-too-distant future charges will be brought. We’ll bring charges 

when we know we have the evidence necessary to succeed. 

Chairman SPECTER. Thank you, Mr. McNulty. My time has 

lapsed. I will just, without objection, place into the record the letter 

which I wrote to you on oversight authority, make it a part of the 

record. 

I am going to have to excuse myself at this point. Senator Hatch 

will be arriving shortly to preside. In the interim I have asked Senator Sessions if he would preside during my absence. 

Now I yield to our distinguished ranking member, Senator 

Leahy. 

Senator LEAHY. Mr. Chairman, I would put into the record a letter from the Fraternal Order of Police, signed by Chuck Canterbury, addressed to you and me in favor of the nomination of Mr. 

McNulty. 

Chairman SPECTER. Without objection it will be made a part of 

the record. 

Senator LEAHY. I know when you praised the Department of Justice—and I join you in the praise of the men and women who are 

there—you were referring to the civilian end of our Government. 

You were not in any way denigrating the military end; is that correct? 

Mr. MCNULTY. No, I think that the—— 

Senator LEAHY. I just did not want you to get caught later on. 

Mr. MCNULTY. I guess I am not familiar with all the ways you 

can get caught, but—— 

Senator LEAHY. Trust me, you will learn. 

[Laughter.] 

Senator LEAHY. Let me just follow up a little bit on what Senator 

Specter was saying on these cases that have been referred to. The 

reason we ask, there were 20 allegations of detainee abuse. 19 of 

them went to you. One went to the Eastern District of North Carolina. They were able to obtain an indictment. Were you suggesting 

that your primary—I do not want to put words in your mouth—but 

are you suggesting the primary reason there have not been indictments yet is a jurisdictional one? 

Mr. MCNULTY. No. I just raised that as one of a number of factors that has come into play with some of the referrals. 

Senator LEAHY. The reason I ask that, obviously, in North Carolina they felt that was not a problem. The military has been able 

to prosecute a number of these cases, have they not? 

Mr. MCNULTY. Right. And as I mentioned, we had to let them 

go first in some of our allegations. 

Senator LEAHY. And in among the referrals include one case in 

which a detainee was killed in CIA custody only 45 minutes after 

interrogations. The CIA’s Inspector General found a possibility of 

38

criminality. You have had that case for 18 months. Anything you 

can tell us about the progress in that case? 

Mr. MCNULTY. It’s an ongoing investigation. What’s interesting 

about that case is that there were a number of Navy SEALs 

charged in the military context, and they were acquitted. So you 

see that sometimes in these cases it’s very difficult, as I know you 

know, because of the nature of the evidence. In that particular 

case, those SEALs had custody over that individual prior to his delivery into the hands of anyone else. 

And on the case in North Carolina, that case was further along 

in investigation and preparation for being charged. It was charged 

almost immediately after the referrals were made because of the 

work that had been done on it. 

Senator LEAHY. Do you think that these others will be coming to 

a conclusion sometime in the near future? 

Mr. MCNULTY. I think so. And to be candid with you, Senator 

Leahy, there may be declinations in some of the cases. 

Senator LEAHY. I understand. 

Mr. MCNULTY. And there may be some charges in some of the 

cases. 

Senator LEAHY. After 18 months, there are going to be declinations. In those cases, that decision should be made too. 

Mr. MCNULTY. That’s right, Senator. We’ll plow forward with all 

aggressiveness. 

Senator LEAHY. Let me ask you this. There has been a lot in the 

press lately about the NSA domestic spying program. When did you 

first learn about it? 

Mr. MCNULTY. When the New York Times article came out. 

Senator LEAHY. You did not know about it before then? 

Mr. MCNULTY. For the past 4 years I have been serving as the 

U.S. Attorney in Virginia. I haven’t been involved in Department 

of Justice wide matters. 

Senator LEAHY. After you learned about it, what did you do? 

Mr. MCNULTY. I became aware of the program. I am not in a—

read into that program, and so there is nothing more I can do in 

terms of action when I’m not a part of or read into the specific program itself. 

Senator LEAHY. But if you were Deputy Attorney General you 

would be. 

Mr. MCNULTY. Possibly. I mean as Acting Deputy, I think it was 

determined, and rightly so, that it’s not appropriate in an area 

that’s so closely held. 

Senator LEAHY. Did you see the Attorney General’s 42-page 

white paper he released a couple weeks ago? 

Mr. MCNULTY. I did. 

Senator LEAHY. Did you agree with everything in that paper? 

Mr. MCNULTY. I read the paper carefully, and I have to say that 

I found you arguments, the legal arguments that were being presented there, to be credible and compelling arguments. 

Senator LEAHY. Did you find anything you disagree with? 

Mr. MCNULTY. I don’t recall right now, Senator, of anything that 

I would cite as an area of disagreement. It’s a general legal argument in that paper. And there may be some things that I found 

39

more compelling than others, but as an overall argument, that’s 

the way I viewed it. 

Senator LEAHY. I am going to give you a copy. If somebody could 

hand a copy of a letter that I and the other Democratic members 

of the Judiciary Committee sent to Attorney General Gonzales last 

week. We requested the contemporaneous legal opinions and other 

documents related to the NSA domestic spying program. Senator 

Specter has also raised some of the issues, and has given you a letter pointing out where such documents have been made available 

in investigations by appropriate committees in the past. If you are 

confirmed, will you release to Congress and appropriately cleared 

staff, and where appropriate to the public, the requested materials? 

Mr. MCNULTY. I can’t make that commitment to you today, Senator. As I tried to explain to the Chairman, the decisions that have 

to be worked through in this request that I’m looking at—and I 

hadn’t seen this before today, are challenging—and I’d have to consult with others at the Department of Justice as to precedence in 

the past and what can be released. 

Senator LEAHY. Just one last question if I might, Mr. Chairman. 

Are you aware of instances in which information obtained 

through the domestic spying program was used in any manner in 

a criminal prosecution in the Eastern District of Virginia or any 

other district? 

Mr. MCNULTY. No, I’m not aware of that. 

Senator LEAHY. Okay. Mr. Chairman. 

Senator SESSIONS [presiding]. Thank you, Senator Leahy. 

Mr. McNulty, it is a pleasure to see you. I have admired your 

work for a number of years. I think the experience you have had 

now as a United States Attorney will be particularly valuable to 

you in this position. 

Tell us briefly what the role of the Deputy Attorney General is 

in the vast Department of Justice. It includes far more than just 

line prosecutors in the Department of Justice. You have quite a 

good deal more to deal with. I also would note that—having been 

on this side of the aisle, on the congressional side as a top staff person—will that not give you some appreciation for legitimate demands of Congress on the Department of Justice to respond 

promptly and sufficiently to legitimate inquiries from the Congress? 

So I guess I will first ask you that question. Do you feel that 

your perspective, in being counsel in the House Judiciary Committee, would give you insight into legitimate needs of Congress, 

and does that make you more or less willing to be responsive? 

Mr. MCNULTY. I do think that experience is helpful in this process. I think, if nothing else, when you call me as Deputy Attorney 

General, if you confirm me, that I will have an immediate understanding of the process that you’re going through and the responsibilities that this Committee and other committees have. I will understand and appreciate the importance of oversight. 

In my view the Department of Justice has to be held accountable 

in many different ways. We have to have a strong Inspector General. We have to have strong oversight by the Congress, including 

GAO, and we have whistleblowers that are a part of that oversight 

framework. I think all of those elements of oversight have to funcVerDate 0ct 09 2002 09:00 Dec 22, 2006 Jkt 031446 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\31446.TXT SJUD4 PsN: CMORC
40

tion well in order to hold Department of Justice accountable for its 

work, and we ought to be ready to be examined that way. 

And so it doesn’t mean that some questions won’t be difficult. 

They have been difficult for decades, and Senator Specter’s letter 

cites a number of issues where there has been cooperation and 

agreement reached on oversight, but all those examples were preceded by lengthy discussions about how much should be available, 

sensitivity of the information, deliberative process and so forth, but 

accommodation was reached in each of those instances, and I think 

that’s the long tradition of working together on this. 

Senator SESSIONS. I think Congress has a right to demand certain documents, and I think Congress has an obligation to recognize that the executive branch has the right to have internal discussions of matters that remain privileged to the Department of 

Justice or the President himself. My understanding of the attorneyclient privilege—and you’re attorneys for the executive branch—is 

that those documents have not been produced, that Democrat and 

Republican attorneys have repeatedly testified (that have served in 

the Department of Justice) that they should not be. And it is ultimately the documents you prepare—that the Deputy Attorneys 

General prepare, the Attorneys General, the Counsel to the President—those documents are prepared as an attorney, are they not? 

And are those documents, your documents, or do they belong to the 

Government and to the Chief of the executive branch? 

Mr. MCNULTY. Right. 

Senator SESSIONS. And is that not the person that ultimately 

makes a decision on whether or not to release them? 

Mr. MCNULTY. That’s right. Some documents that go to the very 

core of the deliberative process, that are sort of quintessential deliberative process work, requirements for candidacy are important. 

I appreciate your point about the policies in previous administrations, because I did my oversight work on the Judiciary Committee 

with the previous administration, and there were a number of documents that the Committee sought that we did not receive from 

the Department of Justice during the administration of President 

Clinton. 

Senator SESSIONS. You never received those documents from the 

Clinton administration. 

Mr. MCNULTY. No. And there were some instances where we had 

to accept either significant limitations or ‘‘no,’’ and that’s never 

easy to accept. but we did get that answer on a number of occasions. 

Senator SESSIONS. It is just a complex issue, but there are some 

legitimate Executive concerns there that have been asserted by 

every President. Maybe a little later we can talk about the fact 

that you will be dealing, if you are confirmed as Deputy Attorney 

General, with many more issues than this. It is a huge supervisory 

management position that involves the Bureau of Prisons, the 

United States Attorneys, the Drug Enforcement Administration, 

the FBI, as well as many other agencies in the Department that 

is one of the most important in the country. I am glad that you 

have had this U.S. Attorney experience because it shows how the 

Department of Justice actually operates at the grass roots level. 

I believe Senator Kennedy would be next. 

41

Senator KENNEDY. Thank you, Mr. Chairman. Good morning. 

Mr. McNulty, I am somewhat surprised to hear you say that 

these cases, these detainee cases came to you with a thin record. 

The case of Manadel al-Jamadi, who died in CIA custody at Abu 

Ghraib, was investigated extensively by the military, and the General Taguba report was 6,000 pages long. The Jones/Fay report, 

which was the other—these are reports from the Armed Services 

Committee, of which I am a member. That report identifies two 

CIA employees involved. So what is the difficulty in building the 

case? Is the CIA cooperating and to what extent does it cooperate, 

first of all, and then what is the difficulty in building the case? 

Mr. MCNULTY. Senator, we’re getting cooperation. I don’t mean 

to be evasive on that one point, but I have certain classified information issues that I have to work with there, but we are getting 

fine cooperation from the agencies that are involved, that we’re 

working with. 

When I made that point, Senator, what I was referring to is that 

often when you’re a prosecutor you get a presentment of a case 

from an agency that is a notebook which lays out quite specifically 

the theory of prosecution, the evidence, and puts you in a position 

to draft an indictment rather soon after receiving the information. 

Referrals is a general term, and I just don’t want anyone to think 

that referrals means it’s the full presentment of the case ready to 

go to indictment. The reports you cited refer literally just to observations or facts that someone reporter. We have to take those observations or facts or letters and then build a case from that. We’ve 

gotten great cooperation in trying to do that. The obstacles are 

more the kinds of things you run into when you’re doing a case on 

foreign soil. 

Senator KENNEDY. Let me move on to the topic of Voting Rights 

enforcement, and I am just going to move through this quickly. 

Last August the Department granted approval for the new voter ID 

requirement in Georgia. This disproportionately affects AfricanAmericans, Latinos, Native Americans. Voters were required to pay 

$35 to obtain a card. Those IDs were available at less than 60 locations in Georgia, which has 159 counties. The Federal District 

Court stopped the law because the IDs functioned as a modern day 

poll tax. In reaching its conclusion, the Court wrote that it had 

great respect for the Georgia legislature but simply had more respect for the Constitution. Those are pretty strong words about a 

law the Department of Justice said did not violate minority voting 

rights. And then the conservative 11th Circuit Court of Appeals 

upheld the District Court’s decisions. 

The news reports show that the career staff and Department opposed the law because it would violate civil rights—but they were 

overruled by political appointees. There is yet a similar situation 

with a unanimous staff recommendation against approving a redistricting plan in Texas. The Texas case is going to come up to the 

Supreme Court next month. 

I understand you were not supervising voting right cases when 

these staff recommendations were made. We are going to have a 

separate Civil Rights oversight hearing, as the Chairman has indicated. But if you are confirmed, you will be in the chain of comVerDate 0ct 09 2002 09:00 Dec 22, 2006 Jkt 031446 PO 00000 Frm 00045 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\31446.TXT SJUD4 PsN: CMORC
42

mand above the Civil Rights Division, so your position on the matter is important. 

Just last week, Georgia passed a new voter photo ID program, 

which the Department has the responsibility of reviewing. The 

issue is whether the law will actually make it harder for minorities 

to exercise their vote. 

Do we have your assurance that you will personally notify the 

Civil Rights Division leadership and the Voting Section that you 

expect a fair review of the new Georgia law, and that you will not 

permit politics to trump fair civil rights enforcement? 

Mr. MCNULTY. You have that assurance. Senator, let me just 

add, I feel very strongly that politics can never play a role in what 

the Department of Justice does, and the Civil Rights Division has 

to be—operate always in a fair and appropriate way under the rule 

of law because it’s the vision that really seeks to guard opportunity 

for every American. 

I will point out that the section chief of that section is a career 

person, who has been the one signing off on those Georgia decisions. 

Senator KENNEDY. But you will follow that? 

Mr. MCNULTY. Absolutely. 

Senator KENNEDY. Let me just move quickly on to this issue as 

well. You are familiar with the role of the Honors Program in the 

Department’s hiring practices. That has been changed, especially in 

the hiring of the Civil Rights Division, where career attorneys have 

been totally excluded from reviewing candidates. It is now done 

only by political appointees. That is a dramatic change from the 

past. The Honors Program was originally designed to get rid of political considerations in new hiring. So will you agree that political 

considerations should not have a role in who is named in career positions in the Department, and if you are confirmed, will you review the Honors Program? 

Mr. MCNULTY. I will. 

Senator KENNEDY. And work with us to guarantee that the politics is not the controlling factor? 

Mr. MCNULTY. Absolutely, Senator. I looked into this briefly because I knew this was a concern. And we may have to check the 

facts that you have and I have and make sure we’re on the same 

page. 

Senator KENNEDY. Fine. 

Mr. MCNULTY. But I understand that a career employee and a 

political employee are both involved in every hiring decision that’s 

made in the Honors Program. So that’s my understanding of the 

current policy. 

Senator KENNEDY. If you look it over, we can talk about it later. 

My time has expired. I will just take a second here. Just this 

morning we learned of a terrible tragedy in New Bedford, Massachusetts. Three people are now in the hospital after suffering brutal attacks. The suspect allegedly walked into a bar, asking if it 

was a gay bar. And then the suspect started attacking customers, 

swinging a hatchet, and then pulled out a gun and started shooting 

at everyone. So this really was a crime of hate, and such acts of 

violence represent, I believe, domestic terrorism. 

43

Senator Smith and I, and Senator Specter have been enormously 

interested in hate crimes. Will you work with us? We have a current hate crimes bill. We have passed others in the Senate. We 

have not been able to get it into law. But will you work with us 

in terms of hate crimes legislation generally? I cannot ask you now 

for a specific position on it, but I would like to ask for your assurance that you at least will work with us in terms of that subject 

matter. We may not come to the same decision, but I would like 

assurance at least you will work with us on this issue. 

Mr. MCNULTY. Right. I will work with you. I remember the 

issue—I haven’t thought about it recently—but I remember the 

issue when I worked for the House Judiciary Committee, and I will 

be very prepared to work with you on your efforts to try to address 

the question. 

Senator KENNEDY. Thank you. 

Thank you, Mr. Chairman. My time is up. 

Senator DEWINE [presiding]. Mr. McNulty, good to see you. 

Mr. MCNULTY. Good to see you, Senator, thank you. 

Senator DEWINE. You have a distinguished record. You and I 

first met each other in I think about 1983, right after I came to 

the House of Representatives. You were with the Legal Services 

Corporation. Shortly after that you went I think with Bill McCollum on the Crimes Subcommittee of the House. You and I worked 

on the Crime Bill. You went off to the Justice Department for a 

while, had a career there. And then you came back, and you and 

I worked together when you were again Chief Counsel on the 

House Crimes Subcommittee, and then your distinguished career 

in Virginia, some very famous cases. Now back at Justice Department, U.S. Attorney’s Office. It was a very distinguished career. 

So anyway, it is good to see you back. 

Let me just ask you, Paul, a couple questions, one on asylum 

cases. As you probably know, in the past year several Federal Circuit Courts have openly criticized the Department’s handling of immigration cases involving those who seek asylum in the United 

States. Some have criticized the decisions of immigration judges. 

Others have commented on the quality of appellate review conducted by the Bureau of Immigration Appeals in these cases. The 

issue, however, seems to stem from a decision made by DOJ in 

2002 to streamline the appellate review process in immigration 

cases. Without question, this streamlining has made the difficult 

process of deciding hundreds of thousands of asylum claims each 

year more efficient. But some of us fear that it has also led to a 

number of meritorious asylum claims really slipping through the 

cracks. 

What is your thinking in this area? Do the current DOJ regulations strike, in your opinion, the proper balance between efficiency 

and individual justice, or do we need to reexamine these regulations to be certain that meritorious asylum claims do not slip 

through the cracks? 

Mr. MCNULTY. Well, I am familiar with the changes in part because the effort to expedite the immigration cases has also resulted 

in really an avalanche of cases in the circuit courts for review. And 

my office in the Eastern District of Virginia, like every U.S. Attorney’s office in the country and every litigating unit or component 

44

of the Department of Justice, is now participating and working on 

briefs on those cases. So we all understand the volume. 

Just a week ago, Senator, Attorney General Gonzales asked my 

office and the Associate Attorney General’s office to conduct a thorough review of the way the immigration courts are operating, the 

quality of the work that is being done, the efficiency and effectiveness, and whether or not we have struck that right balance. 

So we are currently going through a very large effort to review 

what is being done by immigration judges in these cases, these petitions. I would like to get the results of that, which should be rather soon because the Attorney General told us to get it done quickly, 

and talk to you about what we find at that point. 

Senator DEWINE. Well, I would hope maybe you could come in 

with me or have someone come in and brief me and my staff on 

that because I have a concern about this. When you have the circuit court judges openly criticizing the Department’s handling, I 

think that is a problem. We are picking it up, frankly, through my 

office and some of the horror stories that we are hearing, and I 

think it is a real problem. 

Mr. MCNULTY. I understand, and the concern—— 

Senator DEWINE. And the time line for that is what, do you 

think? 

Mr. MCNULTY. It is not a lengthy review. It is one that the Attorney General wants back quickly. So we have been at it now for 

about 3 weeks and I can’t give you a specific date, but we are talking about just literally weeks of more work to do and not a long 

period of time. 

Senator DEWINE. Let me ask you one more question. As United 

States Attorney for the Eastern District of Virginia, you, of course, 

have been involved in some of the most important anti-terrorism 

cases in the country. 

Do you want to take a moment to give us some idea of what is 

working in this area and what, from your perspective, maybe is not 

working? Again, have we struck the right balance between fighting 

terrorism and protecting civil liberties, and are the tools that Congress has given our investigators and our prosecutors in the USA 

PATRIOT Act, in your opinion, actually working? From a practical 

standpoint, what would be the effect on anti-terrorism investigations if we do not reauthorize the PATRIOT Act? 

Mr. MCNULTY. I think there would be serious problems if the 

PATRIOT Act was not reauthorized. The provisions that sunset 

provide very significant tools. We all talked about the wall, and the 

concern we have as prosecutors is the chilling effect that a lack of 

reauthorization would have on the sharing of information. 

Some sharing has improved that may not be connected necessarily to the PATRIOT Act directly, but there is an important 

part of the sharing that is directly tied to the PATRIOT Act. And 

if it is not reauthorized, we will go back to that stovepiping that 

keeps prosecutors from knowing actually what is going on and 

being able to pursue important cases. 

Also, Senator, as far as other tools in the Act, they provide the 

kind of thing that is needed in the right moments when you are 

trying to use what is available to make a case. They are not necessarily used everyday, but they provide a solution to an important 

45

problem, whether it is delaying a notification in a search or whether it is seeking a certain set of records that wouldn’t be available 

because of the national security concern with a grand jury subpoena. 

We made a lot of progress in 4 years. In my office, in prosecuting 

these cases, I think we have learned how to overcome major obstacles that historically we just hadn’t confronted in prosecuting cases 

where evidence was all over the world. And I think that we are 

much stronger today as a Department in prosecuting international 

terrorism cases than we were before 9/11. We will continue to look 

at what we can do legislatively and practically to improve, but I 

think my assessment to you, Senator, is that we have made great 

progress in overcoming obstacles. 

Senator DEWINE. Thank you very much. 

Senator Durbin. 

Senator DURBIN. Thank you very much, Mr. McNulty, and thank 

you for joining me in my office yesterday. It is good to see your 

family here. 

Mr. MCNULTY. Thank you. 

Senator DURBIN. Mr. Chairman, I would say that if people on the 

Hill, including members of this Committee, understood the importance of the position that you seek, this room would be filled. It 

should be, because I think what we have seen with Mr. Comey, 

whom we both hold in high regard, is that during the course of his 

service in this same position, he was called on to make some extraordinarily important and difficult decisions. 

When you and I met yesterday, we talked about this compelling 

Newsweek article that attempts to describe Mr. Comey’s experience 

at the Department of Justice in this position, and particularly the 

fact that he was, because of Attorney General Ashcroft’s illness, 

drawn into an important responsibility of deciding whether to go 

forward with the domestic spying program which is going to be the 

subject of this Committee’s hearing next week. The article indicates 

that he ran into some resistance for his position on this issue from 

Mr. David Addington, who is the chief of staff to Vice President 

Cheney. 

The reason I raise this is because you and I talked about it and 

I want to make sure it is laid out on the record here. There may 

come a moment, if you are approved by the Senate, where you are 

put in the same predicament, where you would be faced with making a critical decision relative to our rights and freedoms in America and face political pressure within the administration, as apparently Mr. Comey did from the office of the Vice President. 

My question to you in public session, as it was in my office yesterday, is whether you are prepared to resign the position if you 

found it to conflict with what you considered to be ethical or constitutional conduct. 

Mr. MCNULTY. Thank you, Senator, and I fully appreciate the 

significance of your question, and my answer to you today is the 

same as it was yesterday. I would never let a job come in the way 

of my integrity. If I felt that that was a necessary thing to do, I 

would certainly do it because, first and foremost, I have to do the 

right thing in this job everyday. 

46

I believe I have the standing as a result of more than two decades in this town, I have the confidence, I have the ability to assert 

myself that I might be persuasive to anyone I might come in contact with where I feel strongly about a position, and that I would 

prevail. But if that situation should arise as you framed it, then 

I would be prepared certainly to walk away from a job if it came 

to a question of integrity versus employment. 

Senator DURBIN. And although I didn’t raise it yesterday, I want 

to set out in the record, is there anything in your past service with 

the House Majority Leader relative to his legal problems concerning the K Street Project or Mr. Abramoff or anything—is there 

any aspect of this that you were involved in as a member of the 

staff? 

Mr. MCNULTY. Well, I didn’t work for that Majority Leader. I 

worked for Congressman Dick Armey, the former Majority Leader. 

Senator DURBIN. I see. 

Mr. MCNULTY. I served as the general counsel and I am unaware 

of any issue that has ever been identified that has been associated 

with my service to him in that way. 

Senator DURBIN. So there is nothing in current investigation that 

relates to your service at all in the House? 

Mr. MCNULTY. No, sir. I am unaware of anything like that. 

Senator DURBIN. Thank you. 

Let me ask you specifically about an issue raised earlier. Senator 

Leahy referred to the letter which I received relative to the referrals by Mr. Comey for detainee abuse cases to the office of the U.S. 

Attorney in the Eastern District of Virginia. 

I asked you yesterday if you agreed with the President’s statement that no American could legally engage in torture, cruel, inhumane or degrading treatment. Do you agree with that statement? 

Mr. MCNULTY. Yes. As I understand it, that is the law of the 

land. 

Senator DURBIN. And so if anyone in the administration suggested that the President had the authority to authorize torture, 

would you come to the conclusion he does not? 

Mr. MCNULTY. Right. As I understand it, the McCain amendment has addressed this very subject we are talking about and the 

administration has expressed its full support for the McCain 

amendment. 

Senator DURBIN. And so that would be your position as well? 

Mr. MCNULTY. Correct. 

Senator DURBIN. All right. So, if confirmed, you would not be advising the administration that they have the authority to ignore 

what is the clear statement in the McCain law? 

Mr. MCNULTY. No, Senator, I can’t anticipate that—I wouldn’t 

anticipate that situation. 

Senator DURBIN. I see my time is up, so I will defer to my colleague, Senator Schumer. 

Senator DEWINE. Senator Schumer. 

Senator SCHUMER. If Senator Durbin, with your permission, Mr. 

Chairman, wants to finish his line of questioning, I think I would 

end up going beyond the 5 minutes. It is better to have him finish 

his and then I finish mine, if that is okay with you, Mr. Chairman. 

Senator DEWINE. Senator Durbin. 

47

Senator DURBIN. Okay, thank you. I thank you my colleague 

from New York. 

So as you described it to me yesterday, the cases that have been 

referred to the Eastern District of Virginia U.S. Attorney’s office—

some 17 pending cases, if I am not mistaken? 

Mr. MCNULTY. That is right, minus the two we have declined, so 

we are down to 17. 

Senator DURBIN. Seventeen pending cases involve, as you described it, some cases that came in with a thin file, limited information, often involving witnesses and victims who were overseas, 

some of which are now being considered in other courts, such as 

military courts. And you said to me that was the reason why there 

hasn’t been more activity. Now, don’t let me put words in your 

mouth. 

Mr. MCNULTY. Well, I wasn’t saying there hasn’t been more activity. There has been a lot of activity. We have worked very hard 

on this. What I was trying to describe to you is something that I 

am sure in the vast majority of prosecutions people confront, which 

are the reasons why you can’t move from a referral on Monday to 

an indictment on Thursday. You have to have the work done to 

succeed in the case. 

All of the witnesses—let me qualify that—many of the witnesses, 

if not most of the witnesses, are overseas, and the victims, as well, 

and so forth. Those are just two of several factors that make the 

investigations difficult, not impossible, but just difficult. 

Senator DURBIN. I think that is a reasonable explanation, and 

when I was asked by the press yesterday, that is exactly what I 

said. I hope there is some timely determination as to whether they 

are going forward for prosecution, whatever might be the fate of 

that office and the next office-holder. 

Mr. MCNULTY. Yes. 

Senator DURBIN. One last question. You have been involved in 

some terrorism cases. Have any of the defendants in these cases 

been subject to this NSA surveillance, this domestic spying program which is now going to be considered by this Committee next 

week? 

Mr. MCNULTY. I don’t know the answer to that question. At least 

two of the defendants in cases that my office has prosecuted have 

filed motions to that effect, but not based upon any information 

available to them. 

Senator DURBIN. So you have no knowledge that any defendant 

has been subject to this surveillance? 

Mr. MCNULTY. I have no knowledge of that. 

Chairman SPECTER. Okay. Thank you very much, Mr. McNulty. 

Senator DEWINE. Senator Schumer. 

Senator SCHUMER. Thank you, Mr. Chairman, and I want to welcome Paul McNulty and his family, his wife, his daughters. 

My condolences on your loss last week. 

Mr. MCNULTY. Thank you. 

Senator SCHUMER. Mr. Chairman, it is no secret that Paul 

McNulty and I go way back. One of my proudest moments as a 

Congressman—I served 18 years in the House—was putting together the crime bill, which had a little motto: Tough on Punishment, Smart on Prevention. It got a majority of the Black Caucus 

48

and close to a majority of the Republican members of the House to 

vote for it as it went through. 

I would say the staff member I worked most closely on with that 

legislation was Paul McNulty, who I believe was probably minority 

counsel at that point? 

Mr. MCNULTY. At different times, yes, sir. 

Senator SCHUMER. Yes, and I can tell my colleagues that Paul is 

not only extremely bright and hard-working and diligent, but a 

man of integrity and his word is good, and I appreciate that. 

So I guess I would say here that it is no secret that most of us 

on this side of the aisle have had serious differences with the Justice Department on a whole range of issues over the last 4 years. 

I am glad they chose you, as opposed to somebody else. 

Having said that, another one of your qualities which I respect 

is loyalty, and I worry that in this Justice Department two very 

fine qualities of integrity and loyalty are going to cause you some 

sleepless nights. So my questions are all in that sort of general 

vein, and I think it is my obligation to bring them out, as much 

respect as I have for you. 

I think that the Justice Department in the last 4 years has become more political than I have seen it in all the years I have been 

in Washington. Some of the cases at the Department proceed with 

complete professionalism, but others seem to be saturated with politics. The Justice Department should not be a den of ideology. 

My colleague, Dick Durbin, mentioned Jim Comey, and he was, 

like you, a consummate professional, forthright, true to the law, 

guided by what he thought was right. And I am sure you have read 

some of the newspaper and magazine stories. There has been at 

least speculation—Comey would be too much of a professional to 

comment on this—that he left because loyalty demanded too much. 

And there is talk that other people left the same way—Mr. Goldsmith, who was head of the Office of Legal Counsel, and some others. Again, I make it clear neither of them has said anything to 

that effect. These were articles I saw most recently, one in Newsweek. 

The job, in my judgment, of Attorney General or Deputy Attorney 

General is different than that of just about any other Cabinet position. Just about every other one, you are supposed to follow the 

President, period. But the Justice Department has an extra halo, 

if you will, which is it is the law enforcement agency of the country, and in a nation of laws, by definition, you don’t always just follow. 

So one area I have concern in is the investigation of Jack 

Abramoff. This is a political issue, by definition. Names of politicians have been involved, and thus far I think the Public Integrity 

Section has pursued the case appropriately. But I worry when the 

investigation turns to Government officials, elected officials, and 

particularly, if it should occur, moves in the direction of some people who have a whole lot of power and a whole lot of connections 

with this administration. 

That is why I believe that given the ties between Mr. Abramoff 

and senior Government officials, this is a place where a special 

counsel is justified and necessary. We don’t have an independent 

counsel law anymore. That was sort of knocked out, I think, in a 

49

bipartisan way. But a special counsel gives some distance, and Patrick Fitzgerald is an indication of that. Whether people like or don’t 

like what he has done, no one has debated that he has free rein, 

and that is why whatever he does I am going to be happy with. I 

have faith in his integrity. I have faith in the structure that was 

set up. 

So here we have Abramoff with ties to the Republican leadership 

in Congress, certain ties to the White House itself. Who knows how 

deep? We are trying to figure that out. 

Second, the rules, DOJ’s own regulations. The Attorney General 

must appoint a special counsel when a criminal investigation would 

present a conflict of interest and it would serve the public interest 

to appoint a special prosecutor. And now you have the added complication just in the last week or so that the career prosecutor in 

charge of the investigation, Noel Hillman, has been nominated to 

be a judge on the Third Circuit. 

So while this cauldron is bubbling, there is going to be a new appointment there, and even if that appointment is made totally, totally on the merits, there is going to be an appearance that you 

can’t avoid, and couldn’t avoid in any administration. This is not 

aspersions on this; this is just the facts of the matter. 

Senator DEWINE. Senator Schumer, in the spirit of bipartisanship to show you that bipartisanship reigns in this Committee, I 

am going to turn the gavel over to you at this point. 

Senator SCHUMER. Well, thank you, thank you. 

Senator DEWINE. I have another engagement that I am late for. 

Senator SCHUMER. No problem. I will just ask my questions and 

then conclude the hearing. 

Senator DEWINE. Well, you are doing so well here that I will just 

let you continue. 

Senator SCHUMER. Thank you. Thank you, Mr. Chairman. 

Senator DEWINE. If I could just say again, Paul, we are delighted 

at the President’s nomination. 

Mr. MCNULTY. Thank you for your support. 

Senator DEWINE. We look forward to working with you. 

Mr. MCNULTY. I certainly look forward to that. 

Senator DEWINE. We are glad to see your family here today, too. 

Mr. MCNULTY. Thank you. 

Senator DEWINE. Thank you. 

Senator SCHUMER. Thanks, Mr. Chairman. 

Senator DEWINE. Thank you. 

Senator SCHUMER [presiding]. I would just say one other thing 

that sort of again leads to some concerns. Frederick Black was the 

acting U.S. Attorney in Guam and the Marianas and was removed 

while he was investigating Mr. Abramoff, again, some allege because he was investigating Mr. Abramoff, and even that Mr. 

Abramoff had a hand in removing him. 

So I guess my question to you is, given all these circumstances 

and the lack of public confidence that exists today, would you support the appointment of a special—oh, one other thing I should say 

is 35 of us in the Senate, all Democrats, are sending a letter asking 

that a special counsel be appointed today. 

So I would ask you what is your view of a special counsel in this 

case. Is it needed? What are the criteria you will use? I had asked 

50

the same question of Mr. Comey when he was sitting in your chair 

and he basically—well, as you saw then in the Plame case, did appoint a special counsel. So just give me some of your thoughts here. 

Mr. MCNULTY. Well, first, let me say, Senator, how much I appreciate your kindness to me. In this town, which can be a very 

rough place, the fact that you would remember the time we did 

spend together working and credit that toward me is something 

that I will always appreciate. I think it speaks a lot of who you are 

as a person and I appreciate it. 

Senator SCHUMER. Well, more to who you are. You are somebody 

I greatly respect. 

Mr. MCNULTY. Well, thank you. 

Second, when you talk about loyalty and integrity, loyalty is a 

good thing. I have benefitted from loyalty in my career and I have 

benefitted from loyalty in my life. I have friends here today who 

are loyal to me and that is nice, but loyalty and integrity aren’t 

equals. Integrity trumps loyalty. Values have some hierarchical 

structure to them and when it comes to doing the right thing, you 

have to be willing to do that even to the people—if you are an enforcement person, even to people that you might have some knowledge of or relationship with. 

But on the question of the special counsel generally, I think it 

is an important tool in very limited ways. I think it does create 

that sense of public confidence. Public confidence is huge when it 

comes to the Department having the kind of standing that I described in my opening statement, and that is why from time to 

time it makes some sense. 

I do believe that the prosecutors working on this particular investigation are really thoroughgoing professionals, all career, and 

it has a lot of resources as far as the work that is being done. I 

will commit to you that I will certainly take your recommendation 

seriously and look at the matter and, if I am confirmed, give it 

every possible consideration for what is the appropriate thing to do. 

And I will consult with you as I do that so you know where I am 

coming from. 

I like to see the career people do their jobs without any interference, and I believe they put in the time and the effort and that 

they are in the place to make good judgments. And so with that 

only bias that I have toward the way in which the career people 

have demonstrated a record of integrity, I will give your proposal 

consideration. 

Senator SCHUMER. Well, I appreciate that very much, and you 

did say, which I think is very important, that this investigation 

will get whatever resources are necessary. They won’t be hamstrung for a lack of—— 

Mr. MCNULTY. No. It already has a lot of resources and anything 

they need to—— 

Senator SCHUMER. Up to now, I don’t have any complaints from 

my knowledge, limited as it should be, because it is—well, it is 

somewhat public because there have been articles about it, but it 

is private. 

The problem I worry about is not the career prosecutors in the 

Public Integrity Section, but it is standard procedure in the Public 

Integrity Section, should the investigation turn to indict some highVerDate 0ct 09 2002 09:00 Dec 22, 2006 Jkt 031446 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\31446.TXT SJUD4 PsN: CMORC
51

level political figure, or even make that person a target—move the 

grand jury in a different direction is a little different—that often 

it goes beyond the Public Integrity Section and beyond the career 

prosecutors. That is my worry. 

Now, how do we address that type of—and that is standard procedure in the Justice Department and I am not here at the moment 

to quarrel with that. But in this sensitive situation, how do you 

deal with that? You will admit there will be decisions, not every 

decision, but some decisions made at a higher level than the Public 

Integrity Section, should this investigation find serious wrongdoing 

among certain people. Isn’t that fair to say? 

Mr. MCNULTY. Sure, absolutely. I have had the experience of 

being around attorneys general and deputy attorneys general over 

the course of my career and I have never, ever heard a conversation about political considerations when it comes to charging. There 

is a culture at the Department of Justice that is blind to that and 

just looks at the facts and the law and tries to move forward. 

And there is a structure at the Department of Justice that is 

probably, I think we would both agree, a good thing, which is that 

there is political leadership that is accountable, that changes with 

elections. And they do have, by the very design of our Founders, 

a responsibility for administering the law. 

In the current structure of special counsel, it is not like an independent counsel was under the statute where you have someone 

who actually has this charging authority that exists outside of the 

Department. Jim Comey faced the question with appointing Pat 

Fitzgerald. Pat Fitzgerald reported to him. He was a political appointee. 

Senator SCHUMER. Right. 

Mr. MCNULTY. And so you have to work through some of those 

questions that even with a special counsel, ultimately if one is 

picked, that person would report to me, unless I am recused, then 

report to somebody else. 

Senator SCHUMER. So if whoever is the new prosecutor brings 

something to you, you would not try to overrule it on any kind of 

political grounds, no matter—— 

Mr. MCNULTY. Absolutely not. 

Senator SCHUMER. Great. Second, I guess what you are saying 

here is you will look at the issue of a special counsel seriously. You 

don’t foreclose ruling it out right now at all? 

Mr. MCNULTY. No, Senator, I don’t. 

Senator SCHUMER. Thank you. The next questions are related not 

to the special counsel, but since 2001 I have talked and my staff 

has talked to a good number of career people in the Justice Department who are very frustrated with what they would call the 

politicization of some parts of the Justice Department—I am not 

talking about shifts in policy here. Obviously, that is the President’s prerogative. He won the election and my party lost—but 

rather where political appointees routinely overrule experience and 

expertise of dedicated staff. If they believe it is on all fours, not 

even equivocal, that the law requires one thing, they are overruled 

in a different direction. They are removed from current posts and 

given less desirable assignments. 

52

The hiring process is taken over by political appointees for appointments further down the chain without input from career managers, where a highly experienced, talented and rather long-term 

workforce is purged. And all too often, who pops up in their place 

is someone with less experience, but far more conservative ideological credentials or political connections. 

An example: Last June, political appointees overruled career attorneys on the tobacco litigation team and ordered them to ask one 

of their witnesses to downplay testimony that was damaging to the 

tobacco industry, and then ordered them to dramatically reduce 

their request for civil penalties by billions of dollars. The veteran 

career attorney who had led the case suddenly and inexplicably 

withdraw from the litigation amid speculation she was driven out. 

In August, Lawrence Greenfield, the head of the Bureau of Justice Statistics, was asked to resign and was later demoted after he 

objected to a White House order that he delete references to racial 

disparities in news releases prepared to announce a study on racial 

profiling. 

The one that I find most disturbing is the pattern in the Civil 

Rights Division, where some of the most egregious and appalling 

examples have occurred. The front page of the Washington Post 

said that political appointees have overruled experienced career attorney recommendations to deny pre-clearance to voting changes in 

Georgia and Texas; that the attorneys determined after thorough, 

non-political legal analysis that it would have a discriminatory effect on minority voters. 

If those political appointees or people in the White House 

thought that the Voting Rights Act, as it is, goes too far, they had 

every right to try and change the law, come to us and change the 

law, but to veto cases or to change the way cases are being done 

in compliance with the law. Experienced attorneys are departing 

this division at an alarming and unprecedented rate, and many 

who choose to remain get assigned to less desirable posts. They are 

ordered to work on deportation cases rather than civil rights cases. 

So again, with complete respect for you and who you are, but realizing it is a tough world, how can you assure us that you will 

deal with these kinds of—if they are as I described, and I don’t 

know if you have looked into any of them in your acting capacity—

how you will deal with them. I don’t think you would deny that at 

least out there in the buzz, there is a view that this Justice Department in certain areas, particularly civil rights, has behaved more 

politically. 

Mr. MCNULTY. I am aware, Senator, of that buzz, and in the 3 

months that I have been the Acting Deputy I have become more 

familiar with some of the issues that you raise here. 

Perhaps the best answer I could give you is as a general matter 

I was enjoying my life as a U.S. Attorney and really finding that 

to be the best job I have ever had. And when I was given the opportunity to move to the Department of Justice to serve as the Deputy 

Attorney General, the thing that primarily motivated me to take it 

was not fame and fortune by any means, but rather the fact that 

I have a great regard for the Department of Justice as an institution. 

53

And I think we are talking about over 100,000 people here, and 

the need to manage the place well is critical, and to see that people 

are treated well. And so if I am confirmed, I expect as the Deputy 

Attorney General to hold everybody accountable for their conduct 

in relation to how we deal with career people and how we respect 

the work that is being done by everybody in the Department, to 

avoid the appearance of politics coming into what we do, to follow 

up on things that I read about or hear about and to get to the bottom of it. 

That is about the best I can say to you with regard to this sort 

of list of things that you are talking about, that if they come up 

under my watch, I will address them. And if somebody calls me 

and says I heard about this, you can have the confidence that I will 

look into it and get back to you. 

Senator SCHUMER. One thing I would ask you to address, if you 

are confirmed, is would you be willing to look into what is going 

on in the Civil Rights Division and report back in a way you feel 

appropriate to me, to the Committee, to the Chairman? I think that 

does need some looking into. 

Mr. MCNULTY. Well, I understand. I have talked to Wan Kim, 

the new Assistant Attorney General. I believe he is a very good 

man who has a real commitment to making the Civil Rights Division everything it can be and it should be. The work is very important. As you say, sometimes there are policy issues that come up 

that have to be resolved. 

On this question of voting rights, I am aware that the section 

chief is the person under the guidelines who is responsible for the 

pre-clearance authority. And so when you see pre-clearance, you 

know that a career person has made that decision. I think that 

sometimes gets lost in the process, but nevertheless the concern 

you express is something that I will take seriously. And I will look 

at the Civil Rights Division and make sure that it is functioning 

in a way that has everyone’s confidence that it is doing its job. 

Senator SCHUMER. What I would like to do is send you just a letter or something asking that you look into certain things in there. 

Would you be willing to just get back to me once you are confirmed? 

Mr. MCNULTY. That sounds fine. 

Senator SCHUMER. I just want to let you know, Paul, that I am 

proud of who you have been and you have been a wonderful public 

servant. I have real concerns, as you know, but I have faith in you. 

I had faith in Jim Comey and I thought he did the right job at a 

difficult. I am prepared to support your nomination. 

Mr. MCNULTY. Thank you very much. 

Senator SCHUMER. We are going to leave the record open for 

written questions for 1 week and the record will close on February 

9 at 5 p.m. 

The hearing comes to a close, and again to the McNulty family—

my brother-in-law is a McNulty, as well, but we are to related. 

That has nothing to do with this today. 

[Laughter.] 

Senator SCHUMER. The hearing is adjourned. 

[Whereupon, at 11:34 a.m., the Committee was adjourned.] 

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

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