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68–239 PDF 2011

S. HRG. 112–94 

THE PRESIDENT’S REQUEST TO EXTEND THE 

SERVICE OF DIRECTOR ROBERT MUELLER OF 

THE FBI UNIT 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

JUNE 8, 2011 

Serial No. J–112–26 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 82 

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 3 

WITNESSES 

Comey, James B., former Deputy Attorney General, U.S. Department of Justice, Washington, DC ........................................................................................... 14 

Harrison, John C., Professor, James Madison Distinguished Professor of Law, 

University of Virginia School of Law, Charlottesville, Virginia ....................... 19 

Mueller, Robert S., III, Director, Federal Bureau of Investigation, U.S. Department of Justice, Washington, DC ................................................................ 4 

Van Alstyne, William W., Professor, Leep Professor of Law, William & Mary 

Law School, Williamsburg, Virginia ................................................................... 16 

QUESTIONS AND ANSWERS 

Responses of John C. Harrison to questions submitted by Senator Coburn ...... 31 

Responses of Robert S. Mueller to questions submitted by Senators Franken, 

Grassley, Coburn .................................................................................................. 35 

SUBMISSIONS FOR THE RECORD 

Comey, James B., former Deputy Attorney General, U.S. Department of Justice, Washington, DC, statement ........................................................................ 60 

Congressional Research Service, Vivian Chu, legislative Attorney, June 1, 

2011, memo ........................................................................................................... 62 

Elliff, John T., former Intelligence, U.S. Department of Justice, Washington, 

DC, statement ...................................................................................................... 69 

Harrison, John C., Professor, James Madison Distinguished Professor of Law, 

University of Virginia School of Law, Charlottesville, Virginia, statement .... 74 

International Association of Chiefs of Police (IACP), Mark A. Marshall, President, Alexandria, Virginia, June 2, 2011, letter ................................................ 81 

Mueller, Robert S., III, Director, Federal Bureau of Investigation, U.S. Department of Justice, Washington, DC, statement ............................................. 84 

National Association of Police Organizations, Inc. (NAPO), Wiliam J. Johnson, 

Executive Director, Alexandria, Virginia, June 7, 2011, letter ........................ 88 

National Fraternal Order of Police, Chuck Canterbury, National President, 

Washington, DC, June 3, 2011, letter ................................................................ 89 

Office of Legal Counsel Opinion: 

Westlaw, June 12, 1951, opinion ..................................................................... 90 

Lexis Nexis, November 2, 1987, opinion ......................................................... 93 

Westlaw, July 15, 1994, opinion ...................................................................... 95 

Van Alstyne, William W., Professor, Leep Professor of Law, William & Mary 

Law School, Williamsburg, Virginia, statement ................................................ 100 

(1) 

THE PRESIDENT’S REQUEST TO EXTEND THE 

SERVICE OF DIRECTOR ROBERT MUELLER 

OF THE FBI UNIT 

WEDNESDAY, JUNE 8, 2011 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., Room SD– 

226, Dirksen Senate Office Building, Senator Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Durbin, Klobuchar, Franken, Blumenthal, 

Grassley, Sessions, Lee, and Coburn. 

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

SENATOR FROM THE STATE OF MINNESOTA 

Chairman LEAHY. Good morning, everybody. Good morning, Director Mueller. At our last hearing here, I prematurely complimented you. I said, well, this is the last time you have to come 

to a hearing and put up with the Senate Judiciary Committee. But 

welcome back. 

Over a month ago, I met with the President on this topic. He has 

requested the Congress authorize a limited extension of Robert 

Mueller’s service as Director of the FBI. The public probably knows 

that we have a law that normally limits the FBI directorship to one 

10-year term. This law was enacted to span Presidential terms, and 

will give the position the kind of independence that somebody in 

this position in law enforcement needs. 

President Obama spoke of the ongoing threats facing the United 

States, as well as the leadership transitions at other agencies, like 

the Defense Department and Central Intelligence Agency. He 

asked us to join together in extending Director Mueller’s leadership 

for the sake of our Nation’s safety and security. 

I was convinced of the call that the President made. Following 

the death of Osama bin Laden, I urged all Americans to support 

our President and his efforts to protect our Nation and to keep 

Americans safe. With the tenth anniversary of September 11th, 

2001 attacks approaching, and in the face of continuing threats, 

threats both within and without our borders, we must all join together for the good of the country, and all Americans. 

I’m pleased that in a law enforcement matter like this, we’ve 

kept out of any kind of partisanship. Republicans and Democrats 

have expressed support for the President’s request to maintain 

2 

vital stability and continuity in the national security leadership 

team. 

Senator Grassley, this Committee’s ranking Republican, joined 

me, along with Senators Feinstein, Chambliss, chair and vice chair 

of the Select Committee on Intelligence, introducing a bill to permit 

the incumbent FBI Director to serve for up to two additional years. 

Chairman Lamar Smith of the House Judiciary Committee has spoken to me. He supports the President’s request. And I was encouraged to see reports that Senator McConnell, the Senate Republican 

Leader, supports the President’s request. 

A bipartisan bill on the Committee’s agenda provides for a limited exception to the statutory term of the service of the FBI Director, and it will be on our agenda tomorrow morning. It will allow 

Director Mueller to continue to serve for up to two additional years, 

until September 2013, at the request of the President. This extension is intended to be a one-time exception and not a permanent 

extension or modification of the statutory design. 

The President could have nominated a new Director of the FBI, 

someone who could serve for 10 years and would be there well after 

President Obama’s own term of office expired. Instead, the President is asking Congress to extend the term of service of a proven 

leader for a brief period, given the extenuating circumstances and 

threats facing our country. 

Bob Mueller served this Nation with valor and integrity as a Marine in Vietnam, as a Federal prosecutor at all levels. He again answered the call of service when President Bush nominated him in 

July of 2001 to serve as Director of the FBI. 

I was Chairman of the Committee at that time. I expedited that 

nomination through the Senate. He was confirmed in just 2 weeks, 

from the nomination to the confirmation. Since the days just before 

September 11, 2001, Bob Mueller has served tirelessly and selflessly as the Director of the FBI. I felt that President Bush, even 

though of a different party than I, had made a very good choice and 

I saw no need, once we had the hearing, to hold up that nomination. We moved very, very quickly. 

Director Mueller has handled the Bureau’s significant transformation since September 11, 2001 with professionalism and 

focus. He’s worked with Congress and this Committee, testifying as 

recently as March 2011 in one of our periodic oversight hearings. 

It was very evident at that hearing, if I could just be personal for 

a moment, that Bob Mueller was ready to lay down the burdens 

of this office and spend time with his family. 

But, as he has done throughout his career, Bob is now answering 

duty’s call. I should tell you, Director, what the President said to 

me when I asked him if he had talked to you about this idea. He 

said, ‘‘Not yet.’’ But Bob Mueller is a Marine and he answers the 

call to duty. This is the President’s request as a patriotic American. 

Bob Mueller is willing to continue to serve a grateful Nation. 

Senator Grassley asked that Director Mueller appear at today’s 

hearing. Director Mueller has characteristically cooperated, and I 

thank him. 

Today we also welcome back to the Committee Jim Comey, who 

served as a U.S. Attorney for the Southern District of New York, 

and for 2 years as Deputy Attorney General during the George W. 

3 

Bush administration, when he worked closely with Director 

Mueller. I told Mr. Comey earlier, a few minutes ago, it was nice 

to have him back in this room where he’s spent a lot of time. 

And the Committee will also hear testimony about the constitutionality of passing an exception to the statute, which authorizes 

a 10-year term. I thank Senator Grassley for his cooperation and 

I hope we now have the hearing and we’ll be able to report the bill 

in the form that Senator Grassley suggested without unnecessary 

delays. 

I yield to Senator Grassley, then we’ll go to Director Mueller. 

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Well, thank you very much for holding this 

hearing. And welcome back, Director Mueller. 

This hearing is the first hearing in 37 years to specifically address the 10-year term of Director of FBI. In 1968, Congress passed 

a law requiring an FBI Director to be appointed with advice and 

consent of the Senate. Despite the passage of this law, Director 

Hoover served until his death in 1972. 

Following Hoover’s death, a number of high-profile scandals with 

the FBI came to light. This Committee held a hearing in 1974 to 

address legislation limiting the term of the FBI Director, to provide 

for additional Congressional oversight of the FBI Director, and 

most importantly, to insulate the office from political control of the 

President. 

In 1976, Congress acted by limiting the Director of FBI to the 

current 10-year non-renewable term. Congress did so to prevent 

the accumulation of excess power by the Director, as well as to provide some political independence for the FBI. The statute expressly 

prohibits reappointment of a Director. 

Despite knowing about Director Mueller’s impending term limit 

and initiating a search for a successor led by the Attorney General 

and Vice President Biden, President Obama chose not to send the 

Senate a nomination for Director of FBI. Instead, the President has 

decided that, notwithstanding those statutory provisions, Director 

Mueller should continue to serve in this position for another 2 

years. 

Although I do not think that our position on legislation to permit 

this result should depend on personalities, Director Mueller has 

performed admirably as FBI Director. With the recent death of bin 

Laden and the approaching 10-year anniversary of the September 

11 attacks, we do in fact have unique circumstances warranting a 

one-time limited extension of the term of this particular Director. 

Against this backdrop, and somewhat with a heavy heart, I join 

in co-sponsoring S. 1103, a bill that would extend the term of the 

current FBI Director for 2 years. But 2 years is as far as I will go. 

Director Mueller has done a fine job, but he is not indispensable 

and the likely continuation of the war on terror for many years is 

not so singularly a circumstance to justify extending the FBI Director’s term. In 2 years, no matter what, someone else will be nominated and confirmed for this job. 

Although I support this bill, I have resisted efforts to simply pass 

it with minimal deliberation. Given the substantial precedential 

4 

value of any extension of the FBI Director’s terms, we have a duty 

to ensure that the regular order is followed for the consideration 

of this bill. 

First, I believe that the 10-year limit has achieved its intended 

purpose. Until Director Mueller, no director subject to the limit has 

served the full 10 years. The limit has been successful in reducing 

the power of the Director and in preserving the vital civil liberties 

of all Americans. 

Second, the 10-year limit has provided important political independence for the FBI Director. Only one director has been fired in 

this period, and this did not occur for political reasons. 

Third, the prohibition on reappointment has also served the Director’s independence by eliminating any potential that the Director will attempt to curry favor with a President to be reappointed. 

We should proceed cautiously in setting a precedent that a 10-year 

term can be extended. If we are going to extend Director Mueller’s 

term, we should establish a precedent that doing so will be difficult 

and that unique circumstances necessitating it exists, as those are 

circumstances at this particular time. 

We didn’t just introduce a bill and hold it at the desk. Instead, 

we introduced a bill that would amend existing law. We are holding a hearing. As in 1974, we have called the Director of the FBI 

to testify. We are pointing out the special circumstances behind the 

bill and recognizing the constitutional issues that may arise in extending the Director’s term, and without actually voting to advise 

and consent to his serving an additional term we have called experts to address constitutional. We will hold a Committee mark-up, 

and if successful, we’ll seek floor time to pass the bill. That is how 

we should proceed. Changing the 10-year term limit is a one-time 

situation that will not be routinely repeated. Acting responsibly requires no less. 

For all these reasons, Mr. Chairman, I especially thank you for 

holding this hearing. I thank Director Mueller for testifying, and 

all the other witnesses that have come. Thank you. 

Chairman LEAHY. Thank you very much, Senator Grassley. 

Director Mueller, the floor is yours again. 

STATEMENT OF HON. ROBERT S. MUELLER III, DIRECTOR, 

FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT 

OF JUSTICE, WASHINGTON, DC 

Director MUELLER. Well, thank you Chairman Leahy, Ranking 

Member Grassley, and the other members of the Committee who 

are here today. I thank you for your introductions and for the opportunity to appear before the Committee today. 

As you pointed out, my term as FBI Director is due to expire 

later this summer. However, in early May the President asked if 

I would be willing to serve an additional 2 years. Upon some reflection, discussion with my family, I told him that I would be willing 

to do so. 

Now the President has asked that Congress pass the legislation 

necessary to extend that term and, if this Committee and Congress 

see fit to pass the required legislation, I look forward to continuing 

to work with the men and women of the FBI. 

5 

As the Committee is well aware, the FBI faces a complex threat 

environment. Over the past year we have seen an array of national 

security and criminal threats from terrorism, espionage, cyber attacks, and traditional crimes. These threats have ranged from attempts by Al Qaeda and its affiliates to place bombs on airplanes, 

to lone actors seeking to detonate IEDs in public squares and on 

subways. 

A month ago, as the Chairman pointed out, the successful operation in Pakistan led to Osama bin Laden’s death, and yet created 

new urgency concerning this threat picture. While we continue to 

exploit the material seized from bin Laden’s compound, we know 

that Al Qaeda remains committed to attacking the United States. 

We also continue to face a threat from adversaries like Anwar alAwlaki and Yemen, who are engaged in efforts to radicalize persons in the United States to commit acts of terrorism. And in the 

age of the Internet, these radicalizing figures no longer need to 

meet or speak personally with those they seek to influence. Instead, they conduct their media campaigns from remote regions of 

the world, intent on fostering terrorism by lone actors here in the 

United States. 

Alongside these ever-evolving terrorism plots, the espionage 

threat persists as well. Last summer, there were the arrests of 10 

Russian spies, known as ‘‘illegals,’’ who secretly blended into American society in order to clandestinely gather information for Russia. 

And we continue to make significant arrests for economic espionage, as foreign interests seek to steal controlled technologies. 

The cyber intrusions at Google last year, as well as other recent 

intrusions, highlight the ever-present danger from an Internet attack. Along with countless other cyber incidents, these attacks 

threaten to undermine the integrity of the Internet and to victimize 

the businesses and people who rely on it. 

And in our criminal investigations, the FBI continues to uncover 

massive corporate and mortgage frauds that weaken the financial 

system and victimize investors, homeowners, and ultimately taxpayers. We are also rooting out health care fraud based on false 

billings and fake treatments that endanger patients and cheat government health care programs. 

The extreme violence across our Southwest border to the South 

also remains a threat to the United States, as we saw with the 

murders last year of American consulate workers in Juarez, Mexico, and the shooting early this year of two Federal agents in Mexico. Likewise here in the United States, countless violent gangs 

continue to take innocent lives and endanger our communities, and 

throughout, public corruption undermines the public trust. 

In this threat environment, the FBI’s mission to protect the 

American people has never been broader and the demands on the 

FBI have never been greater. To carry out this mission, the FBI 

has taken significant steps since September 11 to transform itself 

into a threat-based intelligence-led agency. 

This new approach has driven changes in the Bureau’s structure 

and management, our recruitment, hiring, and training, and our 

information technology systems. These changes have transformed 

the Bureau into a national security organization that fuses the traditional law enforcement and intelligence missions. And as this 

6 

transformation continues, the FBI remains committed to upholding 

the Constitution, the rule of law, and protecting civil liberties. 

Now, of course the FBI’s transformation is not complete, as we 

must continually evolve to meet the ever-changing threats of today 

and tomorrow. And as I discuss the transformation of the Bureau, 

I must say I am uncomfortable about much of the attention that 

has been placed on me or put on me by reason of this being the 

end of my term. The credit for these changes goes to the men and 

women of the FBI who have responded remarkably to the challenges that I have laid out, both in the past and present. 

Let me conclude by thanking the Committee on behalf of all FBI 

employees for your continued support of the FBI and its mission. 

The Committee has been an essential part of our transformation 

and its legislation has contributed greatly to our ability to meet today’s diverse threats. 

Thank you. I look forward to answering any questions you may 

have. 

Chairman LEAHY. Thank you. Your full statement will be placed 

in the record. 

[The prepared statement of Director Mueller appears as a submission for the record.] 

Chairman LEAHY. My questions will be brief. You and I talk 

often, as you do with other members, and you have always been 

available. I remember when you testified at an oversight hearing 

on March 30 of this year. You talked about the terrorism threats 

facing our Nation. Your remarks, well-spoken and prepared, expanded on that topic today. 

Tell us about the unique role the FBI plays in preventing and 

prosecuting terrorist activity as compared to our other intelligence 

and law enforcement agencies, all of which have a role. What is 

unique about the FBI? 

Director MUELLER. Well, uniquely, the FBI has domestic responsibility, acting under the Constitution, the applicable statutes, and 

the Attorney General guidelines, to first of all identify those individuals who might be undertaking terrorist threats within the 

United States, along with our State and local law enforcement, the 

other Federal agencies. 

We also have the responsibility for working with the intelligence 

agencies to identify threats from overseas that may impact the domestic United States, and to assure that we gather and analyze 

and disseminate that intelligence and efforts to thwart those attacks. 

If indeed an attack takes place, obviously our responsibility then 

is to identify those persons responsible for the attack, gather the 

evidence against them, and pursue the case through indictment, 

conviction, and incarceration. 

Uniquely, we have the responsibility—the broad responsibility— 

domestically for undertaking this particular aspect of the response 

against international terrorism, as well as against domestic terrorism, which often may well be overlooked. 

Chairman LEAHY. And one of the things I talked with the President and others about, is the desire to have continuity in the national security team. There are a number of changes going on. Leon 

Panetta is leaving as CIA Director to become Secretary of Defense; 

7 

General Petraeus is coming in to the CIA; the head of the Joint 

Chiefs term runs out in the next couple of months and there will 

be a new head of the Joint Chiefs; we have nominations pending 

for Deputy Attorney General, and also a nomination pending for 

the Assistant Attorney General in charge of the National Security 

Division. 

Now, in that team, I assume the FBI Director or your designee 

is a major part of the team. Is that correct? 

Director MUELLER. I believe that to be the case, yes. Also, particularly Sean Joyce, the head of our National Security Branch, as 

well as myself, are both part of the team. 

Chairman LEAHY. This is not a 9:00 to 5:00 job, I would assume. 

I suspect you probably get a few calls in the middle of the night. 

Director MUELLER. We do. It’s somewhat continuous. But that’s 

part of the job. 

Chairman LEAHY. You served the FBI for nearly 10 years. We’ve 

talked about a number of the things you’ve tried to reform in the 

Department and other things you want to upgrade. I know just a 

few weeks ago you were contemplating leaving as FBI Director. 

Since then, assuming this legislation passes, which I assume it 

will, what would you want to build on? Given two more years, what 

would be a top goal in your mind? 

Director MUELLER. The areas of concentration—let me put it that 

way—for the next 2 years should continue to be terrorism, particularly in the wake of the death of bin Laden, the impact that will 

have on his adherents, his followers. Quite obviously, what is happening in Pakistan, what is happening in Yemen, what is happening in Somalia, that bears on the threats to the United States, 

along with domestic terrorism. That will continue to be a focus. 

I will tell you that we will increasingly put emphasis on addressing cyber threats in all of the variations. Part of that is making 

certain that the personnel in the Bureau have the equipment, the 

capability, the skill, the experience to address those threats, and 

not just the cadre of individuals that we have to date who can address any of those threats, not just to the United States but around 

the world, but all those in the Bureau have a sufficient understanding of the cyber background to be able to work in a variety 

of programs and understand how those programs fit into the cyber 

arena. 

We have done, I believe, a very good job in terms of advancing 

our information technology. We have to finish off the Sentinel 

project that has been ongoing for a number of years and has been 

the subject of discussion with this Committee, and I anticipate that 

we’ll be coming to conclusion on that project in the fall. 

In the meantime, we have kept up-to-date in terms of giving our 

agents, our analysts, and our professional staff the information 

technology tools they need to do the job, but we have to continue 

to be on the forefront, on the cutting edge of that technology. 

In terms of legislation, one area which we have raised with this 

Committee, and that is what we call ‘‘going dark’’, where we have 

a court order, whether from a national security court, the FISA 

court, or a District court, based on probable cause to believe that 

somebody is using a communications device to further their illegal 

goals. Often now, given the new technology, the persons, the recipiVerDate Nov 24 2008 08:22 Oct 04, 2011 Jkt 068239 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\68239.TXT SJUD1 PsN: CMORC
8 

ents, the carriers of those communications do not have the solution, 

the capability, to be responsive to those court orders. We have to 

address that increasing gap, given the new technologies, through 

legislation. So, I would anticipate that that would be an issue we’d 

want to address in the next couple of years. 

Chairman LEAHY. Well, thank you. I’m going to put in the record 

letters of support from a number of people at the National Fraternal Order of Police, the National Association of Police Organizations, and so forth. But one I’m very pleased to put in is a statement from John Elliff, who is sitting behind you a couple rows 

back, a former detailee to my staff. 

But the reason I especially wanted to note Mr. Effiff’s statement 

is that he testified at the 1974 hearing on the bill creating the 10- 

year term for Director. I wasn’t a Senator. I was running for the 

Senate. I was a prosecutor at the time. But Mr. Elliff helped me 

a great deal once he came here as a detailee, with an institutional 

memory that is extraordinary. 

[The letters appear as a submission for the record.] 

Chairman LEAHY. I know that the Deputy Majority Leader has 

to leave for something else. Do you want to just make one remark? 

And I thank Senator Grassley for that. 

Senator DURBIN. It has been my honor to work with Director 

Mueller for the last 10 years. You are an honest, honorable man 

and you’ve dramatically transformed our Nation’s premier law enforcement agency. I’m glad that the President recognizes that talent and America is fortunate that you are willing to continue to 

serve. I fully support this extension. 

Thank you, Mr. Chairman. 

Director MUELLER. Thank you, Senator. 

Chairman LEAHY. Senator Grassley. 

Senator GRASSLEY. The President has stated that he believes 

that continuity and stability at the FBI is critical at this time. He 

emphasized ‘‘at this time’’. As I said, I’m not in support of extending your term just because the President has many leadership 

transitions occurring at the same time. There are things a President can control, like when to change leadership at DoD and CIA, 

and things the President cannot control, like the 10-year anniversary of 9/11 or the recent death of bin Laden and the revolutions 

in the Middle East. 

So my first question, Director Mueller, would you agree that the 

threat environment alone is sufficient reason to extend your term 

for 2 years? 

Director MUELLER. I leave that determination to others. As you 

point out, no one is indispensable. I do agree that during a transition there is time spent on that transition process. We certainly 

have been spending time on it. But to the extent that either I or 

somebody else should be part of that team, I leave that to someone 

else. The President asks that I stay. As I said, based on—after reflections and talking to my family, I decided to do that. 

I will tell you that, as I said, nobody is indispensable. Some of 

the calculus was, should I really stay? Often the person who is in 

that position is the worst person to make that decision. So I did 

go out and try to talk to other persons, both in the Bureau and outside the Bureau, to get a more objective view as to whether or not 

9 

it would be the best thing for the agency for me to stay for this 

time, even though the President asked that that be done. 

Senator GRASSLEY. Well, the legislation on your position is meant 

to, and for the last 30 or 40 years, give level of independence to 

the Director, but at the same time, recognize the President could 

fire a Director for any reason. I’m not sure that that’s fully understood, so I ask these questions of you: as Director of the FBI with 

a fixed term, under what circumstances can the President remove 

you? 

Director MUELLER. I think I serve at the pleasure of the President. 

Senator GRASSLEY. OK. Would you support changing the law so 

that the FBI Director could be removed only for cause, so you’d 

have greater independence? 

Director MUELLER. I believe and support the law, including the 

10-year term limit. 

Senator GRASSLEY. OK. Would you support legislation requiring 

the President to provide notice to Congress 30 days prior to removal of an FBI Director, similar to the way the law requires removal of an Inspector General? 

Director MUELLER. I really have not thought about that, Senator. 

Senator GRASSLEY. OK. The FBI’s Intelligence Analyst Association supports the President’s request to extend your term. The FBI 

Agents Association appears to me to be a little less enthusiastic. If 

you’re extended, how would you intend to bridge a gap—you might 

not agree that there’s a gap, but I guess that’s the basis of my 

question—and manage the agents who believe you are creating a 

double standard by extending your tenure, while you limit theirs 

to your up-and-out policy? 

Director MUELLER. Well, I do believe that there is—I understand 

the concern on certain agents’ part. I do think there’s—it’s a different issue. The issue of having a maximum time for service as a 

supervisor in the Bureau was a part of a plan to develop leadership. After looking at how you develop leaders in the military, how 

you develop leaders in corporate America, and how you give incentives and push persons, the best leaders in the organization, to the 

top. 

We had had some problems with that in the past and, after much 

discussion, the decision was made to enact this. It was one of the 

hardest decisions I probably had to make as a Director during this 

period of time. But it has, in my mind, had the beneficial effect, 

although we did lose some very, very good supervisors who decided 

either to step down or retire. 

I have, over the years, explained the thinking behind the decision. I have, over the years, sought out opportunities to discuss the 

import and impact of that decision, and I will continue to do so. 

Senator GRASSLEY. Thank you. 

Chairman LEAHY. Thank you very much. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

Director Mueller, I want to start off today by associating myself 

with Senator Durbin’s remarks and by commending you for your 

tremendous service to this nation. It is in large part because of 

your tenacity and leadership that we haven’t seen another major 

10 

terrorist attack on our soil since 9/11. That is no small achievement, and I want you to know that I am grateful for all you’ve done 

to reshape the FBI’s counterterrorism strategy. 

But I don’t think it should come as a surprise that your Department has been heavily criticized over the last 10 years for significant misuse of the Department’s surveillance powers and for other 

major civil liberties violations. I think you’ve done an extraordinary 

job, but I also believe that term limits exist for a good reason. Term 

limits are like sunshine laws; they force us to bring in new leaders 

who take a fresh look at things. That is almost always a good 

thing. 

I’d like you, if you could, to take a minute to talk about some of 

the most controversial aspects of your tenure or of the FBI during 

your tenure. How do you think you’ve addressed the problems that 

arose with the FBI’s misuse of surveillance authorities granted 

under the PATRIOT Act and the Foreign Intelligence Surveillance 

Act? Specifically, I would like you to address the concerns raised 

by the Inspector General about the Department’s abuse of national 

security letters. 

Director MUELLER. Let me separate national security letters out 

from the general discussion of surveillance. I do not believe that we 

have abused our powers in any way, with maybe one or two isolated examples and the additional authorities that have been given 

us under the PATRIOT Act over the years, and I don’t believe the 

IG has found such substantial misuse. 

With regard to national security letters, we did not do what was 

necessary to assure that we were in compliance with the applicable 

statutes. It was brought to our attention by the Inspector General. 

As I know you were aware, national security letters enable us to 

get not content, but information relating to the existence of a communication. There was a statutory framework for that and we 

should have set up a much more thorough compliance program to 

assure that we were dotting the i’s and crossing the t’s, and we did 

not. 

As soon as we learned of the IG’s scrutiny on this and the problems that were pointed out, we moved to fix them. The first thing 

we did, is make certain we had new software capability and data 

base capability that assured that all of our agents, in seeking national security letters, will have given all the information that is 

required under the statute. We put out comprehensive guidance to 

the field and additional training. We assured that national security 

letters are signed off on by the chief lawyer in each of our Divisions. 

But perhaps as important if not more important, is we set up a 

compliance program to address not just security letters, but other 

areas such as national security letters where we could fall into the 

same pattern or habits. So the national security letters, I believe 

we addressed appropriately at the time and it was used as a catalyst to set up a compliance program that addresses the concern in 

other areas comparable to what we had found with national security letters. 

Senator FRANKEN. In addition to those concerns, a number of 

civil liberties groups have raised serious questions about the FBI’s 

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rorist Watch List, infiltration of mosques, and surveillance of 

peaceful groups that have no connection to criminal activity. If 

your term were extended, do you believe that you would be in a position to give these concerns a fresh airing without being mired in 

the past? 

Director MUELLER. I am not certain it needs a fresh look because 

I am very concerned whenever those allegations arise. I will tell 

you that I believe, in terms of surveillances of religious institutions, 

we have done it appropriately and with appropriate predication 

under the guidelines and the applicable statutes, even though there 

are allegations out there to the contrary. I also believe that when 

we have undertaken investigations of individuals expressing their 

First Amendment rights, we have done so according to our internal 

guidelines and the applicable statutes. 

So whenever these allegations come forward, I take them exceptionally seriously. I make certain that our Inspection Division or 

others look into it to determine whether or not we need to change 

anything. I will tell you that addressing terrorism and the responsibility to protect against attacks brings us to the point where we 

are balancing, day in and day out, civil liberties and the necessity 

for disrupting a plot that could kill Americans. It’s something that 

we keep in mind day in and day out. 

The last thing I would say is, as our agents go through our training classes, the importance of adhering to the Constitution, civil 

liberties, is drilled into them day in and day out. Every agent—and 

this was established by Louis Freeh, my predecessor—goes through 

the Holocaust Museum before they become a new agent to understand what can happen to a police power that becomes unreigned 

and too powerful. So, we take that and those allegations very seriously. 

Senator FRANKEN. Thank you. 

Mr. Chairman, my time is up. I would just like to say that there 

are exceptions that prove rules, and these are, I think, a unique 

set of circumstances with the new CIA Director, the new Defense 

Secretary, and Admiral Mullen retiring. I should note that President Obama could nominate a new Director who would be there for 

10 years, and by extending you for 2 years, he may not be the 

President. I think that bears mention. Thank you. 

Chairman LEAHY. Thank you very much. 

Dr. Coburn. 

Senator COBURN. Director Mueller, first of all, let me thank you 

for your service. 

Chairman LEAHY. Is your microphone on? 

Senator COBURN. Yes, it is. 

Chairman LEAHY. OK. 

Senator COBURN. I think it is. The light’s on, so we’ll try that. 

We’re going to hear testimony in the next panel about some questionable constitutionality of what we’re trying to do in meeting the 

President’s request. I have some concerns about that because, if in 

fact there can be a legal challenge to what we’re doing based on 

previous statutes—and let me give you an example. 

With the 2005 extension to the PATRIOT Act, we had an additional requirement on 215 orders for certain sensitive business 

records, such as library patron lists, book sales, firearm sales 

12 

records, and tax return records that are relevant to terrorism investigations. They can only be obtained by the approval of you, 

your Deputy Director, or the Executive Assistant Director for National Security. 

Could you envision a questionable constitutional challenge to a 

Section 215 order that was approved by yourself during your 2-year 

extension, and could that be related to the possible unconstitutionality of this extension legislation? 

Director MUELLER. I would say at the outset that I’m not a constitutional scholar. 

Senator COBURN. Nor am I. 

Director MUELLER. And I have heard nothing in my discussions, 

with the Department or otherwise, of a constitutional issue that 

would make that a problem down the road. If that were a substantial problem quite obviously then I would be concerned, but I have 

not heard that to be the case. 

Senator COBURN. Well, my hope would be that after your testimony, you’d have somebody here to listen to the second panel. 

Director MUELLER. And I do. Absolutely. 

Senator COBURN. Because I have some concerns. I have no objection to you continuing in this position at all, but I do have concerns 

that we could get mired in court battles over a questionable constitutional challenge on this that could actually make you ineffective in carrying out your job. 

With that, Mr. Chairman, I have no other questions. 

Chairman LEAHY. Thank you very much. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. Welcome, Director. It’s good to see you. Thank you for all your good 

work. 

My question is really, I remember when we met earlier at the 

FBI about some of the challenges you face, particularly I’m very focused on some of the white collar crime investigations, as you 

know, the resources necessary for those, and how that played in 

with the necessary steps you had to take after 9/11 to shift resources over to investigating terrorism. So with that in mind, what 

do you see as the biggest challenges facing the FBI over the next 

2 years? 

Director MUELLER. Quite obviously, it’s a continuation of addressing the threat from terrorism, both international terrorism 

and domestic terrorism, and increasingly in that area is the 

radicalization of individuals over the Internet, where the 

radicalizers can be offshore and the individuals can be in their bedrooms here in the United States. They need not meet or have any 

other personal contact, but persons can be radicalized through the 

Internet. 

I mentioned before the cyber—the increase of cyber as a mechanism for conducting—Internet mechanism for conducting all sorts 

of crimes, but also it being a highway to extracting our most sensitive secrets or extracting intellectual property from our commerce. We, as an organization, need to continue to grow the capability of addressing that arena in the future. 

From the criminal perspective, making certain that we minimize 

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west border area, and of course as you point out we have still a 

backlog of mortgage fraud cases and substantial white collar criminal cases that we are assiduously working through. 

Senator KLOBUCHAR. And so you’re concerned about budget cuts 

that could affect local law enforcement that have been taking up 

some of the slack here? 

Director MUELLER. I do. And if you talk to State and local law 

enforcement, you understand their concerns in terms of budget cuts 

all the way down the line. I think we’re all in agreement that we 

are much more effective working together. Consequently, for all of 

us the increase in task forces where we combine our areas of expertise and knowledge is going to have to be at least a partial answer 

to the budget cuts that we see coming down the road. 

And always my encouragement to the appropriators is that, in 

giving monies, give monies in such a way that that’s an incentive 

for us to work together in task forces as opposed to a disincentive 

for persons to go and start their own look at a particular area. 

Senator KLOBUCHAR. Exactly. And as you and I have discussed, 

we’ve had some tremendous success in Minnesota with some of 

these combined efforts. You brought up the cyber crime issue. I 

think it’s very important that we start getting something done in 

this area and start to be sophisticated in our laws as those that are 

breaking them. 

I’ve heard that because of new technologies and outdated laws, 

there’s a growing gap in the FBI’s ability to get court-ordered information from communications and Internet service providers. In 

prior statements you have referred to this as ‘‘going dark’’. Could 

you talk more about this problem and how you see we could help 

to fix it? 

Director MUELLER. Yes. I did refer to it briefly before. Where we 

have the authority to go to a court and get a court order directing 

that a communications carrier of some ilk provide ongoing communications to the Bureau in a terrorism case, a white collar criminal 

case, a child pornography case—could be any number of cases— 

what we increasingly find, given the advent of all these new technologies, is that the carrier of that communication no longer, or 

does not have the solution in order to be responsive to that court 

order. 

So my expectation is that legislation will be discussed, and perhaps introduced that would close that gap for us. So we cannot afford to go dark in the sense that we have a legitimate authorized 

order from a court directing a communications carrier to provide us 

with certain conversations related to criminal activity and not be 

able to get those conversations because a communications carrier 

has not put in place a solution to be responsive to that court order. 

Senator KLOBUCHAR. That makes a lot of sense. 

Two things I just wanted to mention at the end. First, I want to 

thank the Bureau for the help with the synthetic drug issue. Senator Grassley, Senator Schumer and I have been working on this. 

Senator Grassley has a bill to include some of these new synthetic 

drugs. We had a kid die from a synthetic drug in Minnesota and 

a number of people get sick. I don’t think people realize the power 

of these drugs and the increase we’re seeing in the use of those 

drugs. 

14 

Second, I want to thank you for your having Kevin Perkins at 

a hearing that I held earlier on the ways we can help law enforcement find missing children. This is the issue of trying to be as narrow as we can in getting exception to the tax laws so that you don’t 

have local law enforcement trying to find a kid when it is in fact 

a family abduction, and then you have one arm of the government, 

the IRS, that knows exactly where that kid is, where that family 

is, and trying to put an exception in place that doesn’t hurt privacy 

interests but is, like many of the exceptions that are already in 

that law, so law enforcement only can access it. 

So, thank you. 

Director MUELLER. Thank you, ma’am. 

Chairman LEAHY. Senator Lee, I understand the questions have 

been asked that you were interested in. 

Then Director Mueller, we’ll excuse you with our thanks for your 

service. But I should also thank Ann Mueller. 

Director MUELLER. Yes. 

Chairman LEAHY. Because she doesn’t get thanked enough for 

the support she gives you, as do your daughters in this. I appreciate that very much. I appreciate that she said yes to the President’s request, too. 

Director MUELLER. Thank you. Thank you. She certainly appreciates that acknowledgement. It’s much—deserved. 

Chairman LEAHY. Well, she’s a remarkable woman, as you know. 

I appreciate that. 

We’ll take a three- or 4-minute break while we set up for the 

next panel. Thank you. 

Director MUELLER. Thank you. 

[Pause] 

Senator KLOBUCHAR. OK. Are we ready to swear in the next 

panel? If you could stand, please. 

[Whereupon, the witness was duly sworn.] 

Senator KLOBUCHAR. Thank you. 

It’s good to have all of you here for a second panel. I’m going to 

introduce our first witness here. This is Jim Comey, who served as 

the Deputy Attorney General of the United States from 2003 

through 2005. Prior to becoming Deputy Attorney General, Mr. 

Comey was the U.S. Attorney for the Southern District of New 

York. He is a graduate of the University of Chicago Law School, 

and is now a member of the Management Committee at Bridgewater Associates. 

I should tell everyone assembled here that Mr. Comey and I were 

in the same law school class. We graduated together. We’ve known 

each other for a long time. I think maybe our classmates would 

have not expected that we would be sitting in these roles back 

when we graduated in 1985. But it is certainly great to have him 

there today. 

Mr. Comey. 

STATEMENT OF HON. JAMES B. COMEY, FORMER DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC 

Mr. COMEY. Thank you, Senator Klobuchar. Senator Grassley 

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ing me to testify here today. It is great to be back in this room before this distinguished Committee, and especially to offer my voice 

in support of an extension of Director Bob Mueller’s term for 2 

years. 

I know Bob Mueller very well and believe he is one of the finest 

public servants this Nation has ever seen. In his decade as Director, I think he has made huge strides in transforming the FBI and 

has contributed enormously to the safety of the American people. 

When I was Deputy Attorney General during those 2 years, I 

spoke to Bob Mueller nearly every day and I watched as his remarkable combination of intellect and tenacity drove the FBI’s 

counterterrorism efforts. Because the Director’s standards were so 

high, everybody’s work had to be better. 

His relentless probing, which was rooted in an almost encyclopedic knowledge of the enemy and our capabilities to respond to 

the enemy, rippled through the FBI and the rest of the national security community. Everyone around Bob Mueller knew their work 

had to be good because he would test it, he would compare it to 

other work he had seen, and he would press very, very hard. 

The President—now two Presidents—could count on Bob to offer 

sound advice and to prudently do what was best to protect the 

country. I don’t think there’s ever a great time to change FBI Directors because something is always lost in a transition as the new 

Director climbs the learning curve and learns about the threat, and 

also about our capabilities to respond to the threat. 

But I think there are bad, and even potentially dangerous, times 

to change an FBI Director, and I think that this is one of them. 

I no longer have access to threat intelligence, but common sense 

and the publicly available information tells me that the combination of the successful raid on bin Laden’s compound and the approaching tenth anniversary of 9/11 make this an unusual and 

unique threat environment. 

In the middle of that, as Senators have mentioned, the leadership is changing at two of the pillars of our National security community, at the CIA and Defense. I think at this moment it makes 

good sense to ask Bob Mueller to continue his leadership of the organization, which is primarily responsible for protecting our homeland from terrorist attack. 

To the extent that I have seen criticism of this idea, it has been 

focused not on the man, but on the purpose of the 10-year term, 

which I support very much, to reduce the risk of abuse by a longserving and too-powerful FBI Director. 

But I think in this circumstance the man is the answer to that 

criticism. There is no one that I have ever met who is better suited 

to the responsible use of power than Bob Mueller. I know firsthand 

his commitment to the rule of law, and frankly I believe he is what 

we wish all public servants could be. I think there are no politics 

in this decision, just as there are no politics in Bob Mueller. This 

is as he is: only about doing what’s in the best interests of our 

country. I join my fellow Americans in being both grateful and awestruck at his willingness to continue to serve and sacrifice for our 

country. 

16 

Thank you again for the opportunity to discuss this important 

issue, and I look forward to answering any questions you might 

have. Thank you. 

[The prepared statement of Mr. Comey appears as a submission 

for the record.] 

Senator BLUMENTHAL. Thank you very much. Now I’d like to introduce Professor Van Alstyne, who was appointed Lee Professor of 

Law at the Marshall Wythe Law School at the College of William 

& Mary. In 2004, he previously served in the Civil Rights Division 

at the Department of Justice and has appeared before this Committee several times. 

Professor. 

STATEMENT OF WILLIAM W. VAN ALSTYNE, LEE PROFESSOR 

OF LAW, WILLIAM & MARY LAW SCHOOL, WILLIAMSBURG, VA 

Professor VAN ALSTYNE. Thank you very much. I have submitted 

a statement and I’ll just summarize parts of it. 

First, I would like to say hello to Senator Grassley particularly, 

since it’s been some time since I was before this distinguished 

Committee but remember his own participation well from prior 

hearings. I look forward also to saying hello to Senator Leahy, and 

even Senator Hatch, but I understand they’re just not with us 

today. 

I’ve submitted my statement. I want, briefly, to simply summarize it and offer what may seem to be a bolder view than is even 

reflected in my remarks with respect to which I have no doubt of 

the constitutional propriety of the proposed extension. 

It is odd, but as I’ve thought about this more, rather, I’ve tentatively concluded that the only reasonable doubt to have is whether or not it’s within the authority of Congress to put an outside 

limit on the service of a purely executive officer. 

They may abolish the office by legislation—don’t misunderstand 

me—but I’m now in doubt as to whether they can actually limit the 

term of service because if it is exclusively an executive office, as I 

regard this office to be for reasons I’ve put on paper and I will 

shortly summarize, then in my own view he necessarily—or she— 

serves at the pleasure of the President. 

So long as that service is deemed acceptable to the President in 

the delegation of that modicum of executive power which the President lodges, as permitted by an act of Congress, in the subordinate 

executive official, I’ve come to doubt seriously the authority of Congress to put a limit on the service of that person so long as they 

continue to enjoy the confidence of the President. 

So my position is not merely that the extension will clearly be 

constitutional and well-advised given the President’s express confidence in the officer who now holds it, but has come to the conclusion that’s not even stated in my memorandum. I’m not at all confident that Congress has the authority to restrict the term in which 

one who has been approved by the Senate, once nominated by the 

President and who holds a purely executive position under the direction of the President, has the authority to limit the number of 

years which they may hold that office as long as the President is 

pleased to retain that person. 

17 

Now, as we are mutually aware, briefly to summarize this somewhat maverick position of mine—I’m sure you’ve not heard it previously—when incoming administrations come in and they represent a different political party, it is customary for the President 

to request the resignation of many executive officials. He may 

sometimes accept some of those letters of resignation and that terminates their particular holding of the office. It opens the office for 

fresh nominations to be submitted for those respective posts to 

come before the Senate for confirmation or rejection. I completely 

understand that and completely approve it. 

On the other hand, the President, often for good reason, declines 

to accept the letter of resignation that he himself has requested. 

Being satisfied with the continuing performance of the officer who 

is serving in a purely subordinate executive capacity, then the resignation is politely refused and so the individual stays on. Now, 

don’t misunderstand me. It may be the individual may resign the 

post, but if the resignation is not accepted then they continue to 

answer the responsibility of the office until something else happens. 

Now, if one believes the President is acting corruptly in refusing 

a letter of resignation, that is for the Impeachment Committee of 

the House to decide, in whether or not the President has acted with 

some corrupt motive worthy of being deemed an impeachable offense under that clause. But it may seem strange to this group. It 

is, rather, that I have no doubt of the constitutionality of the proposed modest extension of the current Director’s purely executive 

service. It is, rather, frankly, ladies and gentlemen, that I’ve come 

to doubt the authority of Congress to restrict the President so long 

as he has confidence in those who are serving in a purely subordinate executive capacity. 

Now, I move, briefly, to the mainstream of my remarks. It is 

quite different with regard to the delegation of legislative authority. To the extent, for instance, that Congress wants to vest a certain interstitial lawmaking authority in the independent agency, 

such as the National Labor Relations Board, then to the extent 

that the NLRB itself makes law, albeit on a mini scale, they make 

substantive regulations. They do not hold hearings. 

The regulations are published in the Federal Register and they 

become the operative law that may now describe more finely in a 

retail fashion what will be deemed to constitute, for instance, and 

unfair labor practice under the Wagner or Taft-Hartley or LMRA 

acts. 

So they are acting in a quasi-legislative capacity in that regard. 

Their authority to do so is delegated by Congress, as we mutually 

know. So long as Congress identifies appropriate criteria according 

to which they may make those substantive rules and provides for 

the substantive reviewability to say whether they’ve acted within 

those boundaries in the Federal courts, then that degree of delegated legislative authority is within the prerogative of Congress. 

But since the NLRB and similar agencies are also lawmaking 

bodies, obviously Congress may determine the terms of those who 

will serve in that quasi-legislative capacity. Now I go back to my 

main observation. The Constitution, among other things, assigns to 

18 

the President the power that he shall take care faithfully to executive the laws of the United States. 

In discharging that obligation, Congress has provided him with 

certain services, certain help. One is the Office of the Attorney 

General, who serves at the pleasure of the President. Another is 

the Federal Bureau of, what, not ‘‘legislation,’’ not ‘‘adjudication,’’ 

but of ‘‘investigation.’’ The FBI. It’s director serves as the director 

of the investigations conducted under the authority granted by 

Congress to the Department, established a long time ago. 

It is purely an executive function. It is impossible for the President of the United States to acquit himself and his manifold Article 

2 obligations, including among them that he shall take care that 

the law shall be faithfully executed, unaided. 

So Congress has provided him the means, and they do so under 

Article 1, Section 8, the ultimate clause. It is called the Necessary 

and Proper Clause, sometimes called the Elastic Clause, that they 

shall have power to enact all laws necessary and proper to carry 

into execution the foregoing powers, their own legislative authority, 

and all other powers vested in the government of the United States 

or any office or department thereof. That’s the office of the presidency. 

So Congress has passed a variety of laws helpful to the President 

in his capacity to carry out his obligations. The earliest of these 

were those that established the respective offices of the Secretary 

of State and of Defense. Am I clear? They are purely executive officials. They are today. The Secretary of State represents the United 

States in foreign relations. That person is the deputy of the President in the power to make treaties. 

Now, the treaty does not become effective, as we all recognize, 

until consented to by the Senate, not even including the House, but 

they are made under the authority of the President. Indeed, there 

are lesser kinds of executive agreements that I’m sure we mutually 

recognize that do not require even the consent of the Senate. But 

the duty of the authority to make the treaty, to dicker with a foreign country, whether on matters of trade or defense alliances and 

things of that kind, that is an executive power. It’s established in 

Article 2. Then under the Necessary and Proper Clause, this Congress has seen fit to aid the President in the efficient discharge of 

that power and that duty by providing a Department of State. It 

then establishes an office called Secretary of State. The President 

then nominates and, with the advice and consent of the Senate, approves or does not, and that is that. That’s the end of the story in 

my respectful constitutional view. 

Senator BLUMENTHAL. Thank you very much. 

Professor VAN ALSTYNE. Congress may not require the dismissal 

of the Secretary, and in my view that I now take, I don’t believe 

that the Congress can set a limit to the service of any individual. 

As long as the person occupying the position, having been nominated and approved by the Senate of the United States, retains the 

confidence of the President, then indeed they should be able to retain the office and discharge the confidence that the President 

places in him. For those reasons and those that I’ve reflected in my 

memorandum, I have no doubt about the constitutionality of continuing Mr. Mueller in service, and I have come to what may seem 

19 

to be the novel and somewhat more radical view that I even doubt 

whether or not the more generous limit itself is within the authority of the Congress itself to stipulate and enforce. 

Senator BLUMENTHAL. Thank you. 

Professor VAN ALSTYNE. I thank you for your time. 

Senator BLUMENTHAL. Thank you very much. 

[The prepared statement of Professor Van Alstyne appears as a 

submission for the record.] 

Senator BLUMENTHAL. We will now turn to Professor Harrison, 

who is a graduate of the University of Virginia Law School. He 

served for 10 years in Department of Justice in a variety of positions and he’s currently James Madison Distinguished Professor of 

Law at the University of Virginia Law School. Thank you for being 

here, Professor Harrison. 

STATEMENT OF JOHN C. HARRISON, JAMES MADISON DISTINGUISHED PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA 

SCHOOL OF LAW, CHARLOTTESVILLE, VA 

Professor HARRISON. Thank you, Senator. 

Senator BLUMENTHAL. You might want to turn on your microphone. 

Professor HARRISON. There we go. The red light? Yes, sir. Thank 

you. 

Director Mueller is a distinguished public servant, so it is with 

some hesitation that I say that I think that this mode of extending 

his term for 2 years would be unconstitutional because it would be 

an attempt by Congress to exercise, directly through legislation, 

the appointments power. 

But the Appointments Clause of Article 2 provides that officers 

of the United States, including, for example, the Director of the 

FBI, are appointed either by the President with the advice and consent of the Senate, or if they’re inferior officers, which I think the 

Director of the FBI is not, by the President alone, by head of Department, or a court of law. Congress may not appoint officers. 

That is quite clear from the Supreme Court’s cases. 

It can’t do so through its own officers, it can’t do so directly 

through legislation. But a statute like S. 1103 would, in a situation 

in which an office otherwise would be vacant, cause a particular individual, through a legal act of Congress, to hold that office, to be 

the incumbent of that office. 

That is an appointment and that is something that Congress cannot do. That has to be done through the Appointments Clause by 

the President, with the advice and consent of the Senate for a superior office of the United States. So just as a formal matter, a 

statute like this would constitute an appointment and would be inconsistent with the Appointments Clause. 

It’s also true, I think, that something like this is inconsistent 

with the principles underlying the Appointments Clause which are 

conjoined. There are two of them, primarily: power and responsibility, which always go together. The Appointments Clause is designed so that the President’s responsibility for all appointments to 

superior offices is absolute. Only the President can nominate, only 

the President can appoint. He has to have the concurrence of the 

Senate, but he alone must do either one of those. He has what 

20 

amounts to an absolute veto, and that means that he has absolute 

responsibility. That’s true with respect to appointments. It’s not 

true with respect to legislation. 

The President has an important role with respect to legislation, 

but he does not have absolute responsibility for every particular 

part of a bill that he signs because he may decide that it’s a compromise and that he has to accept parts he doesn’t like in order to 

get parts he does like. That’s how legislation works. That is not the 

way appointments work. The Appointments Clause is designed to 

focus responsibility strictly on the President. Doing it through legislation can relieve him of that responsibility. It may not in any 

particular case, but it can in principle. 

It’s also true that a Congressional exercise of the power to appoint is an intrusion into the power of the President. That is the 

flip side of responsibility. Again, the two always go together. If the 

Congress is appointing, the President is not appointing. 

There is a 1994 opinion from the Office of Legal Counsel that 

goes into this matter and that takes the position that a direct Congressional appointment which otherwise would be troublesome, at 

least, is permissible as long as the President can remove the officer 

at his pleasure, that there is in effect a constitutional remedy for 

the intrusion into the President’s appointment power. 

I think that argument isn’t persuasive because it assumes that 

the power to remove an officer is, practically speaking and for political purposes, the equivalent of the power to decide not to reappoint that officer. But as a political matter, as is well known, 

that is not true. It is certainly not true with respect to U.S. Attorneys. 

Firing a U.S. Attorney, although within the President’s power, is 

a politically much more controversial act and hence a politically 

much more costly act for the President than is deciding not to reappoint a U.S. Attorney. The power to remove is not a complete 

substitute for the power not to reappoint, and so the reasoning that 

as long as the President can remove a Congressional reappointment is permissible I think is unpersuasive. So as a matter both 

of the form of the Constitution and the underlying principles, Congressional appointment, which this amounts to, is not consistent 

with the Constitution. 

Another important point I want to make is, there is a constitutional way to accomplish this, which is through a combination of 

legislation providing for a new 2-year term and a new nomination, 

confirmation, and appointment of Director Mueller pursuant to the 

Appointments Clause. 

The other point I want to make and the point on which I’ll conclude is that, as Senator Coburn’s question earlier indicated, deviations from the Constitution, as judged by the courts, can be highly 

disruptive and have been highly disruptive from time to time. 

In 1978, Congress created a new system of bankruptcy courts. 

Four years later, the Supreme Court decided that they were inconsistent with Article 3 and Congress spent the next couple of years 

trying to come up with a way to solve the problem and keep the 

bankruptcy adjudication system operating. 

More recently, a similar problem under the Appointments 

Clause. In this case, the disruption created by a single District 

21 

Court opinion happened with respect to the transition from the 

Federal Savings & Loan Insurance Corporation to the Office of 

Thrift Supervision. 

More recently, Congress has had to restructure the administrative law judges for the Patient & Trademark Office because it was 

discovered that their mode of appointment was inconsistent with 

the Appointments Clause. This can be highly disruptive and there 

is an easy way, a constitutional way, to avoid the dangers. Thank 

you. 

[The prepared statement of Professor Harrison appears as a submission for the record.] 

Senator BLUMENTHAL. Thank you to all the members of the 

panel. I’ll begin with a question to Professor Harrison. You discuss 

the Benny case in your written testimony—you haven’t just now— 

and you distinguish it based on the idea that the acts at issue in 

Benny applied to the entire system, all the bankruptcy court judges 

as opposed to a single individual. Aren’t the principles, though, in 

Benny and Shoemaker still applicable here? 

Professor HARRISON. Well, two things, Senator. First, of course, 

Benny is a Ninth Circuit decision and so its persuasive authority 

is elsewhere, its precedential authority only in Benny. But as to the 

difference between a large reappointment and the reappointment of 

a single individual, the Supreme Court itself in the Weiss case, 

which is another Appointments Clause case, indicated that at least 

for some of the justices—and I think some did not agree with this— 

there is a difference between legislation that, as the bankruptcy 

legislation tried to fix the problem that the Supreme Court discovered in Northern Pipeline, the legislation that operates across a 

wide range of officers might not be an appointment, an impermissible exercise of the appointments power, whereas, again, this is 

what Weiss suggested—whereas, one that operates as to a single 

individual might be, that the numbers involved are different. 

And I don’t agree with that but I can understand it, thinking 

that a larger class is more like legislation, whereas the core of the 

Appointments Clause itself is the appointment of a single individual. But here we’re dealing with a single individual. So insofar 

as Weiss indicates that that’s one of the indications of what constitutes an appointment, I think the fact that it’s just one person 

makes it more problematic. 

As to Shoemaker, let me say that Shoemaker, I think, is a case 

that creates a problem for this mode of proceeding because Shoemaker is a case from the late 19th century—is one of the cases that 

is regarded as standing for the proposition, and the court has recently suggested that it stands for this proposition, that statutory 

changes in the duties of an officer, if they go so far as in effect to 

create a new office, can require a new appointment. So actually, although Shoemaker creates some room for Congress to operate when 

it changes the duties of an officer, those two—the officers there 

were—no need to—I’m sorry. No need to get into that. Congress 

has some leeway there. 

But Shoemaker pretty clearly stands for the proposition that 

there is a point beyond which Congress cannot go, and I think one 

point beyond which it cannot go is a simple extension of the term. 

Because again, Shoemaker is about changing the duties of an office 

22 

not operating on the term itself, and even there the court indicated 

it is possible to go to the point where the office is so changed that 

a new appointment would be required. 

Senator BLUMENTHAL. And in Shoemaker, the nature of the 

change in duties and the nature of the office was very different 

from what we have here, wasn’t it? 

Professor HARRISON. In Shoemaker it was a quite small addition 

to the duties of the offices that were involved, that involved creating Rock Creek Park. It was, A) small, and B), in the Supreme 

Court’s own terms it was germane to the office that already existed. 

Whereas, what we’re talking about here is a change in a fundamental feature of the office, which is its term, and is much more 

like an appointment than the change that was involved in Shoemaker, precisely because it causes someone who otherwise would 

not be in the office at all to continue to be in the office. This is very 

different from what the Supreme Court said was all right in Shoemaker. Senator BLUMENTHAL. But wouldn’t it be fair to say that we have 

no direct, clear guidance from the Supreme Court at least on the 

issues at stake here? 

Professor HARRISON. Not clearly here. The main point on which 

I think we can say that Shoemaker can be relied is that legislation 

that is not in form of an appointment nevertheless can run afoul 

of the Appointments Clause. On that point, I think Shoemaker is 

reasonably clear. Exactly what kind of legislation does that, we 

don’t know as well. That’s correct, sir. 

Senator BLUMENTHAL. Thank you. 

I’m going to turn to Senator Grassley. 

Senator GRASSLEY. Thank you all for your testimony. Mr. Chairman, before I ask questions I have a paper from the Congressional 

Research Service that I’d like to put in the record. Also, three opinions on the topic issued by the Office of Legal Counsel, DOJ, that 

I’d like to have put in the record. 

Senator BLUMENTHAL. Without objection. 

[The prepared statement of the Congressional Research Service 

appears as a submission for the record.] 

[The prepared opinions from the Office of Legal Counsel, Department of Justice appears as a submission for the record.] 

Senator GRASSLEY. OK. I’m going to start with Professor Van 

Alstyne, your written testimony states that legislation extending 

the term of a sitting appointment is clearly constitutional. Conversely, Professor Harrison argues that such legislation should 

pass absent a new confirmation hearing for the appointment. A 

court could find invalid any reported exercise of government power 

by the Director of the FBI serving pursuant to the statute, like 

1103. 

My first question is, do you agree with Professor Harrison’s 

statement, and if not, why not? 

Professor VAN ALSTYNE. Well, for reasons I thought I’d made 

clear in my opening remarks, but let me say this as well to amplify 

on those statements. Even if I agreed with Professor Harrison, as 

I emphatically do not at all, it seems to me that insofar as the proposal has come here and it carries an expression by the President 

23 

of his continuing confidence in the Director who is now the incumbent, to the extent that the President has already expressed his 

confidence, a compatible view with this would be that if this bill 

is reported favorably then it carries along the President’s approval 

of continuing him in his office. It then becomes a nomination in its 

own right and consistent with the approval of the Congress of this 

particular bill that would confirm the appointment, so that any residual doubt, which I do not personally entertain, would be eliminated. That would be if I agreed with Professor Harrison. 

I still think it would be quite arguable that, given the message 

from the President that he wants Mr. Mueller to continue to occupy 

this office, then by approving the bill where the President expressed his confidence in this person, that’s effectively a nomination and would become effective with the approval of this bill for 

the new term. 

But I don’t think that’s a necessary way of looking at it. Indeed, 

for reasons I’ve already shared with you, I now seriously entertain 

doubts. I understand the background of the notion of the term 

limit. Mr. Hoover was the original Director of the FBI. He was continued under administration after administration after administration. 

Now, I do remember a little bit. Perhaps, Senator Grassley, and 

perhaps if he were here Senator Hatch, some are too old—one or 

two old-timers might remember that Mr. Hoover exerted unusual 

power and it became almost an extortionist power at some point. 

Indeed, he would sometimes communicate to the President of the 

United States and some Senators of this Senate privately that he 

had certain information about certain misconduct on their part, 

but—they could trust to his discretion, it would never get out. This 

was effectively, de facto, extortion by the Director. 

The Director also had these peculiar habits. He was a crossdresser. He dressed up in women’s underwear, as it were, and he 

was seen disporting himself in that respect. It was a terrible scandal. The difficulty with Mr. Hoover was that he was continued administration after administration, partly because, gentlemen, I put 

it to you candidly, if you look at the history of this affair and the 

longevity of the particular Director, the original first Director, he 

became very powerful and, by a threat to both the President and 

to members of this body, was able to avoid the idea that he would 

simply be asked to resign or fired. Under the circumstances, he induced a certain fear. 

That is the trigger for the original bill that set this 10-year period. I understand and I appreciate that very much. It was, I 

think—while Mr. Hoover, in the early years of the FBI, was an admirable person, he became inflated with his own power and because of his very peculiar sexual tastes abused his office and had 

a horrendous private life. But he retained his office, frankly 

through the threat power that he wielded informally with regard 

to members of this body, members of the House of Representatives, 

and frankly with the President of the United States. They would 

not dare touch him, so he lingered on through administration after 

administration. 

Senator GRASSLEY. My time is up, Mr. Chairman. 

Professor VAN ALSTYNE. I beg your pardon. 

24 

Senator GRASSLEY. My time is up. 

Professor VAN ALSTYNE. I merely meant to suggest that that was 

the origin of wanting to put a limit on these things. 

Senator BLUMENTHAL. Thank you. Thank you very much. 

Professor VAN ALSTYNE. And I respect that limit, though I might 

have my doubt about the limit itself rather than the validity of continuing the appointment under an extended term. 

Senator BLUMENTHAL. The time of the Senator from Iowa has expired. I’m going to turn to Senator Lee. 

Professor VAN ALSTYNE. Certainly. 

Senator LEE. Thank you, Mr. Chairman. 

I’ve got a question for Professor Van Alstyne. So, Professor Harrison has acknowledged, if I’m understanding him correctly, that 

there is a way to do this while resolving any constitutional questions. If we can invoke for a minute the Doctrine of Constitutional 

Doubt for purposes of this Committee, we might do so and in this 

instance resolve any such doubt simply by taking a two-step process rather than a one-step process, one in which we would first 

amend the existing legislation making clear that this Director 

could serve an additional 2 years, and then having the President 

re-nominate Director Mueller to an additional 2-year term, subject 

to Senate confirmation. 

Given the questions that have been raised and given the fact 

that Congress could do this reasonably without all that much burden, why shouldn’t we just do that? 

Professor VAN ALSTYNE. Well, you may if you want. I just think 

it’s quite unnecessary. The President has already expressed his desire to have Mr. Mueller continue in the office. If you are not comfortable merely in complying with his wishes, which I am very comfortable with and find supported by the majority of the testimony 

you’ve received in submitted form, I want to suggest the alternative 

I’ve already suggested to you, and that is that in reporting favorably you are also acting on the President’s recommendation that he 

wants this man to continue in office for the additional 2-year period. 

That itself, it seems to me, satisfies the nomination requirement 

so that by the approval of the bill, with the understanding that the 

President wishes Mr. Mueller to occupy that position for that term, 

then you do it in a single step. We do not go through the ordeal 

of having to put it back and have the President formally submit the 

matter, we go through hearings again with Mr. Mueller. 

I’ve heard no reproach to his fitness to serve in this role, nor reservations about the assiduousness with which he’s performing his 

exclusively executive duties. So I’m not hostile to this suggestion, 

I just think it’s gratuitous and it rests on a constitutional point of 

view that I do not share and do not think others that have submitted material to you that you’ve heard before and has come to 

your attention, Chair, either. 

I think what has been proposed is sound. It meets the President’s 

need, it meets the country’s need, and is utterly constitutional. I 

don’t object to the two-step procedure that you’ve suggested, but I 

do suggest to you, implicit in what you’re doing now is that step 

itself, if you thought that appropriate and necessary, as I do not. 

Senator LEE. Thank you. 

25 

Professor Harrison, one question I’ve had that I’ve never been 

really clear on is what exactly constitutes an appointment, when 

does an appointment arise. Do you have—for instance, what if you 

had an Attorney General who had been confirmed by the Senate 

and that Attorney General was asked at the conclusion of one Presidential administration and the beginning of another to remain on 

and not to resign as typically happens, would that person remain 

on with the previous confirmation during the previous President’s 

administration or would that be an appointment? 

Professor HARRISON. That is not a new appointment because the 

term of the Attorney General, as contrasted with the term of the 

Director, is indefinite. The Attorney General simply serves at the 

pleasure of the President. So I think it was Attorney General Wirt, 

sir, in the early 19th century, served for something like 12 years. 

The reason for that is simply because the initial appointment was 

to an indefinite term. And although we think of Cabinet offices as 

turning over at the end of Presidential terms, routinely the statutes don’t actually provide for that and so there’s no need to have 

a new appointment again because of the terms of the initial appointment. 

Senator LEE. So in that circumstance the President’s authority to 

remove that person is sufficient because of the fact that it started 

out indefinite, it started out as something that could carry on perpetually? 

Professor HARRISON. The President’s authority to remove the Attorney General, for example, is sufficient to provide the President 

with control over the Attorney General. And if you think as I do— 

I know this is a matter of some controversy—that the Constitution 

requires that the President have that control, the removal power 

is adequate to create it, and indeed many people think the removal 

power is constitutionally required, in order to give Presidential control. 

It’s important to see that the Presidential control over executive 

offices and the appointments clause, although they overlap to some 

extent, are not identical. It’s completely constitutionally permissible to have an appointment that continues through many Presidential terms, and the reason that’s not problematic from the 

standpoint of Presidential control is precisely the removal power, 

or if there’s some substitute for it, like a Presidential directory authority over the officer. 

Senator LEE. So the President’s removal power has a different effect, whereas here Congress has set the term to a—— 

Professor HARRISON. Here, Congress has set a specific term, the 

Director serves for 10 years. Therefore, there is about to be a vacancy in the Office of the Director. I think—I am not sure if this 

is a definition or just a sufficient condition for what constitutes an 

appointment—but in a situation where there otherwise will be a 

vacancy in an office, an act that causes someone to hold that office 

is an appointment. Normally the President does that. The problem 

is that this statute would do it. 

Senator LEE. OK. Thank you. 

Senator BLUMENTHAL. Senator Coburn. 

Senator COBURN. Thank you. 

26 

Mr. Comey, we’ve heard testimony conflicting as to the constitutionality of this, or at least the potential for some mischief. Would 

you see any problem with us doing this a different way so that we 

don’t allow for the potential risk of carrying out of the duties of the 

FBI Director? Would you see any problem if we could figure out a 

way to do this where we wouldn’t see a constitutional challenge? 

Mr. COMEY. As with Director Mueller, I’m no constitutional 

scholar so I’m not in a position to evaluate the merits of the disagreement. 

Senator COBURN. All I’m saying is, wouldn’t it make sense that 

we would do this in a way where we’re not going to see a challenge? You know, there are some pretty savvy people out there that 

are going to use any angle they can to challenge some of the direct 

and proper duties of the Director of the FBI. Would you not agree 

that we should try to do it in such a way to minimize that? 

Mr. COMEY. I would agree. If you can do it in a way that makes 

it bulletproof, especially against the kind of litigation that you’ve 

spoken of, that would be better. 

Senator COBURN. All right. 

Professor Van Alstyne, your testimony earlier was that you think 

that the 10-year statutory term is unconstitutional. 

Professor VAN ALSTYNE. Well, I’ve come to doubt it, that’s all. In 

the course of thinking about the Committee’s responsibilities and 

the opportunity to appear before you, I originally was only concerned with the question that—— 

Senator COBURN. I know. But in your testimony you said you 

didn’t think it was constitutional. That’s what you just said. 

Professor VAN ALSTYNE. I think that there is a more severe 

doubt about the constitutionality of Congress presuming to limit 

the term of service of a subordinate, purely executive officer than 

there is reason to doubt the capacity to extend the term with the— 

with the—with the—— 

Senator COBURN. So if that’s the case—— 

Professor VAN ALSTYNE. Yes. 

Senator COBURN.—then why would a 2-year term be any less 

vulnerable to your doubts? 

Professor VAN ALSTYNE. It would not be as a theoretical constitutional proposition. I think it is far more seriously arguable, gentlemen, that you may not restrict the term of office of a purely subordinate executive officer as you might with regard to one who is 

serving in a quasi-legislative capacity who receives a delegation of 

interstitial lawmaking power from this body. That is, to me, now 

an open question. 

Senator COBURN. Well, I don’t think it’s an open question because the term has not been challenged constitutionally. 

Professor VAN ALSTYNE. No. I appreciate that. 

Senator COBURN. Professor Harrison, would you repeat again 

how you could suggest we do this so that we don’t end up with a 

constitutional challenge so that we can have that very clear in the 

record? 

Professor HARRISON. Senator, I think an unquestionably constitutional way to accomplish this goal would be for Congress to amend 

the 1968 statute that creates the current structure for the Director, 

saying that in some short time period to begin sometime soon the 

27 

President may nominate someone to a 2-year term, to say that such 

person would not be subject to any restriction, to the 10-year restriction created by the earlier statute, for the President—to have 

that expire so could only be done in a narrow window, say this 

summer, to have the President then nominate Director Mueller, the 

Senate give its advice and consent, the President appoint Director 

Mueller to the new 2-year term. That would be, I believe, clearly 

constitutional. I think that would be bullet-proof and that would 

not make it possible for any person who is the subject of the authority of the Director of the FBI to raise in court an objection to 

the Director’s capacity to execute the laws. 

Senator COBURN. Thank you very much. 

Thank you, Mr. Chairman. 

Senator BLUMENTHAL. Thank you, Senator Coburn. 

Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. 

I thank all of you. This is an excellent, excellent panel, and 

thoughtful discussion that’s important for us every now and then 

to think about. 

Professor Van Alstyne, I believe you one time spoke to the Eleventh Circuit—— 

Professor VAN ALSTYNE. Yes, I did. 

Senator SESSIONS.—Court of Appeals in conference to those 

judges. I was a U.S. Attorney in the crowd and remember distinctly—perhaps not so distinctly, but as I remember what you 

said—you said if you truly respect the Constitution you will enforce 

it as written, the good and bad parts. Is that somewhat similar to 

what you said? 

Professor VAN ALSTYNE. I’m so flattered that you’d remember 

that. That remains my view, almost religiously today. In fact, the 

most recent article that I’ve written and will be published this fall 

in the Cato Supreme Court review is called ‘‘Conflicting Visions of 

a Living Constitution’’, and I take the view that was best espoused, 

I think, in those remarks and also on the court by Justice Hugo 

Black, whose name certainly should be familiar to you, Senator, 

from that region in the country, and I hope to everyone in this 

room. 

Hugo Black’s view was that you take the Constitution very seriously. You do not read into it phantom clauses, even though you 

wish they were there. They’re not there. You apply the clauses according to the best understanding the text suggests, as it may them 

be illuminated by the discussions that accompany the drafting in 

its original enactment. This is sometimes described as a form of 

originalism, but in simplest terms it means you take the document 

as it is seriously. 

As it is, it may have defects from a variety of points of view. 

They’re not all of the clauses that we would like to see. I for one 

regret that the so-called Equal Rights Amendment narrowly did 

not pass, even after an extended period, originally 7 years, extended to 10 years. It could not muster the 38 State ratifications. 

I think that’s a constitutional loss, but respect it. I don’t think the 

court should read into other clauses the substance of that particular amendment. As it is, we now have a different Twenty-SevVerDate Nov 24 2008 08:22 Oct 04, 2011 Jkt 068239 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\68239.TXT SJUD1 PsN: CMORC
28 

enth Amendment. In my opinion it’s rather trivial, but it’s all right. 

To the extent that it was enacted, it should be respected. 

So I’m with Hugo Black on these matters. We take the Constitution as it is, we do not read out clauses which we regret are there 

and we don’t over-read the clauses that are there. We have a sense 

of documentary integrity about it. 

Now, I’ve tried to base my own teaching and writing very much 

on that thesis. I have great respect for the Constitution. I have 

great respect for Professor Harrison. I just disagree with him in 

this matter and don’t think that this two-step is necessary. In fact, 

even if I were to concede to his views—which I do not, in all frankness—it seems to me that his views are all compressed in the proposal, because what you have is a proposal signifying the President’s desire to have Mr. Mueller continue for the 2-year period. 

If, then, you can couple those in this one item, I don’t think it 

takes a whole new series of interviews and submissions to do it. It’s 

implicit in what the President has submitted and in your adoption 

of the bill. You will then be approving Mr. Mueller within the 2 

years of the limit that is provided here. I don’t think it’s necessary 

to review that—review it—view the matter that way, but it’s a perfectly logical, coherent way. 

I have no doubt that whichever way you do it, this one-step 

which I believe to be eminently sound, or his proposed two-step 

which may be somewhat more time consuming but it’s perfectly 

possible it will completely withstand any kind of challenge, I have 

no doubt about that professionally at all. If I did or if it turns out 

that I’m a bad prophet, I’ll probably resign my tenured chair post. 

[Laughter.] 

Professor VAN ALSTYNE. At least, and apologize promptly to Professor Harrison, because I think very well of him in general. 

Senator SESSIONS. Well, thank you. Your remarks about the 

Equal Rights Amendment were remembered me from 16, 18 years 

ago. I thought it was a very thoughtful approach you gave. If you 

check the Congressional record, your name has been mentioned 

with this quote probably 10 times since I’ve been in this Senate, 

because I think when we wrestle with these issues we need to understand that even the good government crowd—and that’s what 

this bill was passed for—— 

Professor VAN ALSTYNE. Yes. 

Senator SESSIONS.—is to make America better. We wouldn’t have 

a long-serving Attorney General. We somehow thought that it 

ought to be limited. Just like some of the campaign finance, the 

greatest intent in the world to make America better. 

Professor VAN ALSTYNE. Right. 

Senator SESSIONS. But in the long run, we’re better off following 

that document. If you don’t follow it as written, you weaken it, in 

my view. 

Mr. Harrison, as just a matter of policy, and we deal with policy 

here as well as constitutional law, your proposal would make it 

somewhat easier, would it not—excuse me. It would make it somewhat more difficult and thereby make it—have it require more 

thought and care from the President’s point of view before he 

would exercise this little plan to extend a term limit. In other 

words, it would require a little more effort and work and might in 

29 

that regard be more faithful to the intent of the people who drafted 

the statute. 

Professor HARRISON. Not only the people who drafted the statute, 

but the Constitution. One thing I’d like to emphasize is, the Constitution’s formalities have to be complied with and a request for 

legislation by the President is not a nomination. It’s not what the 

Constitution calls for here, even if in some circumstances it’s the 

equivalent of a nomination. Nominations—and in fact, they normally get more scrutiny from the President. One thing that the 

Chadha case—the case about the legislative veto—stands for is the 

proposition that formalities in the process of legislation, or here, 

nomination and appointment, have to be complied with. 

One of the questions in Chadha was whether the legislative veto 

process, which involved a recommendation by the Attorney General, and inaction by both the House and the Senate, was the functional equivalent of legislation. Justice White said it was a functional equivalent of the legislation, but he was dissenting. The majority in Chadha said, I think correctly, that the formalities are the 

formalities and it is necessary to use them. 

One reason to use the two-step process rather than treating this 

as its equivalent is precisely that the two-step process uses the formalities, whereas saying that this is the same thing—this kind of 

legislation is the same thing as a nomination belies the formalities 

and says, well, it’s pretty much the same. It’s the functional equivalent. I think that’s not correct in principle. And again, Chadha, I think, stands strongly for the proposition that it’s not correct. I 

should say I always hesitate greatly to disagree with Professor Van 

Alstyne, who is one of the giants in our field. 

Senator SESSIONS. Thank you, Mr. Chairman. I appreciate that. 

I would just say, Mr. Comey, that I share your respect for Mr. 

Mueller. When I was in the Department of Justice, nearly 15 years, 

if you had taken a poll of the top three or four prosecutors in America in terms of professionalism, experience, judgment, and proven 

track record of important matters, and then later as a supervisor 

and a leader, Bob Mueller would have been one of the top. 

Wouldn’t you agree? 

Mr. COMEY. Yes, sir. 

Senator SESSIONS. I mean, he was universally recognized in that 

way. He was appointed by President Clinton, I guess, to the U.S. 

Attorney post in California. 

Mr. COMEY. San Francisco. 

Senator SESSIONS. And he had been U.S. Attorney in—— 

Mr. COMEY. Boston. 

Senator SESSIONS. Boston. 

Mr. COMEY. Yes, sir. 

Senator SESSIONS. And then held a high post in the Department 

of Justice. But more than that, he tried a lot of cases personally. 

I mean, he knows how you have to prepare a case, present a case. 

He knows your integrity is on the line every single day as a prosecutor. I’ve always felt that President Obama—you know, I’m 

pleased that President Obama has seen forward—seen fit to renominate him, and I hope we can do that lawfully in a way that 

works. Perhaps it would work. I do think there was some reason 

behind the limit and we ought not to ignore that entirely. 

30 

So, thank you, Mr. Chairman. 

Senator BLUMENTHAL. Thank you, Senator Sessions. I share your 

views about Director Mueller, and want to thank the panel for 

being here today. We will stand adjourned. The record will remain 

open for a week for any additional comments. Thank you again for 

your very insightful, thoughtful, and valuable comments. 

We stand adjourned. 

[Whereupon, at 11:43 p.m. the hearing was adjourned.] 

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

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