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CIVIL DIVISION OF THE UNITED STATES 

DEPARTMENT OF JUSTICE 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JUNE 24, 2010 

Serial No. 111–132 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

STEVE COHEN, Tennessee, Chairman 

WILLIAM D. DELAHUNT, Massachusetts 

MELVIN L. WATT, North Carolina 

DANIEL MAFFEI, New York 

ZOE LOFGREN, California 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

JOHN CONYERS, JR., Michigan 

JUDY CHU, California 

TRENT FRANKS, Arizona 

JIM JORDAN, Ohio 

HOWARD COBLE, North Carolina 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

MICHONE JOHNSON, Chief Counsel 

DANIEL FLORES, Minority Counsel 

(III) 

C O N T E N T S 

JUNE 24, 2010 

Page 

OPENING STATEMENTS 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Chairman, Subcommittee on Commercial and Administrative Law ........................................................................................................... 1 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on Commercial and Administrative Law .................................................................................................. 3 

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Member, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 4 

WITNESSES 

The Honorable Tony West, Assistant Attorney General, Civil Division, Department of Justice 

Oral Testimony ..................................................................................................... 5 

Prepared Statement ............................................................................................. 8 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Steve King, a Representative in Congress from the State of Iowa, and Member, Subcommittee on Commercial 

and Administrative Law ...................................................................................... 32 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Subcommittee on Commercial and Administrative Law ......................................... 35 

Post-Hearing Questions submitted to the Honorable Tony West, Assistant 

Attorney General, Civil Division, Department of Justice ................................. 36 

(1) 

CIVIL DIVISION OF THE UNITED STATES 

DEPARTMENT OF JUSTICE 

THURSDAY, JUNE 24, 2010 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 11:10 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Steve 

Cohen (Chairman of the Subcommittee) presiding. 

Present: Representatives Cohen, Chu, Franks and King. 

Staff Present: (Majority) James J. Park, Counsel; Carol Chodroff, 

Counsel; Adam Russell, Professional Staff Member; and Zachary 

Somers, Minority Counsel. 

Mr. COHEN. This hearing of the Committee on the Judiciary, 

Subcommittee on Commercial and Administrative Law will now 

come to order. 

Without objection, the Chair will be authorized to declare a recess of the hearing. 

I will now recognize myself for a brief statement. One of this 

Subcommittee’s duties and obligations is to oversee the activities of 

the various components of the Department of Justice over which 

the Subcommittee has jurisdiction. These are also the duties of 

every Committee to have oversight over the Administration, just as 

important for an Administration that has the majority as it is 

when the Administration is of the other party. 

But the Civil Division is why we are here today. The last time 

this Subcommittee held an oversight hearing on the Civil Division 

was in 2003, a long time ago, when we invited the Civil Division 

and four other DOJ components to testify at the same hearing. 

Given the long time that has elapsed since the last hearing and 

given that new Administration has taken over since then, we concluded the time was right to conduct due diligence and have the 

oversight hearing that should have been held during the last 6 

years. 

I thank Assistant Attorney General Tony West of California and 

points west, the head of the Civil Division, for appearing before us 

today and to report on the division’s recent activities. The DOJ 

Civil Division is responsible for litigating a broad range of matters 

on behalf of the government; defending the constitutionality of Federal legislation; recovering money for the U.S. that was lost 

through fraud; enforcing Federal consumer protection laws; defendVerDate Aug 31 2005 10:33 Nov 18, 2010 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\COMM\062410\57083.000 HJUD1 PsN: 57083
2 

ing immigration and enforcement actions; and representing the 

United States in habeas cases. Approximately 88 percent of the 

Civil Division’s work is defensive in nature. 

While there are many topics we could cover, there are two areas 

of interest to me particularly that we will look at. First, learn more 

about the Civil Division’s role with respect to the ongoing investigation of the explosion and sinking of the Deepwater Horizon oil 

rig in the Gulf of Mexico, as well as the spill that we are experiencing, experienced, and will experience. The government’s latest 

estimate is 60,000 barrels of oil, 2.5 million gallons each day. So 

the estimate seems to go up every few weeks, and we don’t know 

how much oil is out there. 

I know the Civil Division has been working with other Department of Justice components and has been since the initial explosion 

to investigate the facts and coordinate the government’s legal response with all the Federal agencies involved. I appreciate that the 

Attorney General has made clear that taxpayers not pay a dime for 

any cleanup costs associated with this spill. And that is important, 

that BP pays. And, of course, we have had some progress with the 

President. I would like to know what the Civil Division’s role will 

be in assuring that all responsible parties are held accountable. 

I also want to applaud Judiciary Chairman John Conyers’s leadership on this issue and for introducing H.R. 5503, the ‘‘Securing 

Protections of the Injured from Limitations on Liability Act,’’ or 

‘‘SPILL Act,’’ which we had yesterday in markup. That bill is needed to patch up a lot of the holes that were exposed by the Deepwater Horizon explosion. And I would hope that we could pass this 

unanimously and get it through on a bipartisan basis. 

I would also hope that Memphis wins the NCAA football next 

year, but that is not going to happen either. 

Additionally, I believe the Administration should consider placing BP under receivership. Not a light suggestion, but one that I 

think we should consider. First Robert Reich mentioned it. He 

thought it important because it would put the Federal Government 

in a control position, taking over the spill and making the decision, 

so there is not a conflict of interest on whether you get the oil or 

whether you stop the spill. And I would like to know what your 

thoughts are on how that could happen. 

My thoughts on receivership are more because I don’t trust them, 

and I think we need every dollar they have got to pay all the 

claims that they will eventually be responsible for. And has the 

Justice Department looked at receivership and the burden that 

would be needed to be met to go into that area? 

The second area of interest for me is the Civil Division’s role 

with respect to ensuring transparency and government openness. 

Throughout my career, I have advocated sunshine. To that end, I 

have been a strong supporter for bringing into the public as much 

as can be revealed about government decision making. One of the 

things I found most disconcerting about the previous Administration was its penchant for aggressively imposing government secrecy 

under the guise of national security. This tendency manifests itself 

in several ways, including in the broad invocation of the State Secrets Privilege and the vigorous defense of agency decisions to deny 

requests for information under the Freedom of Information Act. 

3 

I recognize that under this present Administration, the department has instituted new policies in both of these areas. I would 

like to know how these policies are being implemented and practiced. 

Given the broad range of issues the Civil Division handles, I 

know there will be other areas of inquiry from other Members. 

The issue about fraud, which you look into, which I appreciate— 

and I don’t know there are any moneys that you deal with in some 

of these New York situations with Madoff and some of those folks, 

if we get involved is there money from the United States Government trust to collect that we may be owed in those hearings of 

those matters. 

Anyway, I appreciate the willingness of Assistant Attorney General West to appear before the Subcommittee. I look forward to his 

testimony. 

And I now recognize my colleague, Mr. Franks, the distinguished 

Ranking Member of the Subcommittee, for his opening remarks. 

Mr. FRANKS. That is a good opening, isn’t it? 

Well, thank you, Mr. Chairman. 

And thank you, Attorney General West, for appearing before us 

today. I want to just express my gratitude to the Chairman for 

holding this hearing. I think the oversight of the Department of 

Justice and its components is one of the Judiciary Committee’s 

most important obligations. 

The Civil Division plays a very important role in many of the department’s missions, from the global war on terror to combating 

fraud against Federal health care programs. I mean, a whole range 

of things. And I commend the division staff for their hard work 

across the wide spectrum of the division’s responsibilities. 

However, as you might imagine, I am concerned that the division 

has become distracted from its important mission by engaging in 

politicized litigation over the areas on the immigration law. Now, 

I am from Arizona, so that probably doesn’t shock you terribly. 

But, Mr. West, not only has the department announced that it 

plans to challenge the Arizona law, but I understand that you travelled to Arizona to meet with State officials about the law. And I 

guess I can’t help but question why, with the wide range of important items the Civil Division has on its plate, that time is being 

spent preparing challenges to the law? 

The people of my State are really just trying to do what the Federal Government has failed to do, which is to enforce America’s immigration laws and secure the border. The department’s proposed 

lawsuit against Arizona, I think, is irresponsible and insults the 

views of the majority of the American people who support the law 

on its face. 

And I know the law has engendered a great deal of criticism, but 

analysis demonstrates that the criticism really is unfounded if you 

look at the arguments that are made. 

Critics claim that the law promotes racial profiling. And yet, if 

you read it, the law expressly prohibits racial profiling four separate times in the text. 

Critics claim that the law requires citizens to carry identification 

that they otherwise wouldn’t be required to carry. But Federal law 

has actually required noncitizens, including visitors and lawful perVerDate Aug 31 2005 10:33 Nov 18, 2010 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\COMM\062410\57083.000 HJUD1 PsN: 57083
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manent residents, to keep their registration documents on their 

person. This has been the law in America for 50 years. 

Additionally, critics claim that the law requires police officers to 

stop people on the streets to question them about their immigration 

status, but the provision of the law about the questioning one 

about immigration status can only take place, can only take effect, 

if police officers have made a, quote, lawful stop, detention or arrest in the enforcement of any other law or ordinance. So, in other 

words, the individuals may not be stopped simply on the basis of 

suspicion and ask for papers. 

I will just simply tell you that Arizona is trying to take a reasonable constitutional approach to dealing with a problem that has 

really been ignored by the Federal Government, of which I take my 

share of the responsibility. 

So, Mr. West, I hope that the department that you work with can 

reconsider its decision to file the suit and look at some of the 

things that we have mentioned today. I am sure the Civil Division’s 

time and resources could be better spent cracking down on fraud 

against the Federal Government, defending lawsuits and going 

after those who have taken part in mortgage fraud schemes that 

have caused so many Americans to lose their homes. 

My State needs the law to protect our residents, secure our borders, and preserve jobs for our unemployed citizens and legal immigrant workers. The department should not compound its lack of immigration enforcement by attempting to strike down the Arizona 

law. And, again, I say that being a Member of Congress from Arizona, and I know that there are varying perspectives on this. But 

nevertheless, everything I have said about the law is accurate. And 

I appreciate you being here today, and I appreciate the Chairman 

for bringing this hearing to the forefront. Thank you. 

Mr. COHEN. Thank you, Mr. Franks. 

I appreciate your statement. 

And I now would like to start with our first panel of witnesses. 

Mr. King, would you like to make an opening remark? 

Mr. KING. Thank you, Mr. Chairman. 

First, I want to address that I am going to turn my attention to 

this department and some of the things that are going on within 

Justice. And I have had a number of public statements over the 

last couple of weeks that focus on the lack of objectivity on the part 

of the Department of Justice. 

And I think that when we talk about law, Lady Justice needs to 

remain blind. And I like to think we have to reblindfold Lady Justice. So I want to focus on that. There have been a number of decisions that have been made within the Department of Justice that 

I think were anything but that. 

And if we are going to have a country that grows together, heals 

together, and one that can be unified, one that understands that 

we have something that is an overarching concern, which I will call 

it cultural continuity, the idea that we are Americans joined together for a common cause, with a common history and a common 

belief system. And that is what unifies us and strengthens us and 

allows us then to incorporate the differences between us and use 

those differences as a strength. 

5 

If we allow for the division of us or even the suspicion of a builtin bias of any kind, then that divides us and weakens us as a people. So my under-riding theme here is a belief in the Constitution— 

that should be our default system—and a belief in a rule of law 

that applies to all of us, regardless of who we might be. And I 

think that when we start putting labels on people and then providing a level of justice, whether it is in the Criminal or Civil Division, then it is something that undermines our country and diminishes our ability to ward off our enemies and certainly diminishes 

our ability to take this country to the next level of its destiny in 

a positive way. 

And so that is as positively as I can express the things that are 

in my mind right now. And I look forward to the testimony from 

the witnesses today. 

Mr. Chairman, I yield back the balance of my time. 

Mr. COHEN. Thank you, Mr. King. 

Ms. Chu passes. 

Thank you. 

And we will now start with our testimony. We have a system of 

lights or a light in this circumstance. Green means you are started; 

you have got 4 minutes until it turns yellow. And yellow is the last 

minute, in a total of 5. Red means over, hopefully. And if you are 

finished, you will be one of the few. But we have the lighting system. 

After your testimony, each person will get an opportunity to 

question you for 5 minutes and maybe a second round and have 

other questions. 

So our first witness is Assistant Attorney General Tony West. 

Mr. West was nominated by President Obama to be the Assistant 

Attorney General For the Justice Department’s Civil Division on 

January 22, 2009; confirmed by the Senate April 20. From 1993 to 

1994, he served as special assistant in the Department under the 

direction of U.S. Deputy Attorneys General Philip Heymann and 

Jamie Gorelick, as well as Attorney General Janet Reno. From 

1994 to 1999, he served as Assistant U.S. Attorney for the Northern District of California, later served as Special Assistant Attorney General, appointee of California Attorney General Bill Lockyer. 

Prior to his return to Justice, he was a litigation partner in San 

Francisco at Morrison and Foerster. His trial practice there included representing individuals and companies in civil and criminal matters. 

Thank you, Mr. West. And you can begin your testimony. 

TESTIMONY OF THE HONORABLE TONY WEST, ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE 

Mr. WEST. Thank you, Mr. Chairman and Ranking Member 

Franks, and Members of the Subcommittee. It is a great privilege 

for me to be here to appear before you at this hearing to discuss 

the work of the Justice Department’s Civil Division and respond to 

any questions you may have. 

As you know, the Justice Department’s Civil Division represents 

the United States in a variety of matters, virtually every executive 

branch agency, as well as the President, Cabinet officials, and 

6 

Members of Congress, are clients of ours at one time or another. 

With nearly 1,000 attorneys and over 400 support staff, the Civil 

Division is the Justice Department’s largest litigating component, 

and the cases we handle touch upon virtually every aspect of this 

Administration’s policy priorities and the Federal Government’s operations. 

And as part of our mission, the Civil Division defends the constitutionality of congressional statutes when they are challenged, 

as well as the lawfulness of government regulations. We seek to recover moneys lost to government through fraud, waste and abuse. 

We help to administrator sensitive national compensation programs, such as the Radiation Exposure Compensation Act. We enforce important consumer protection statutes, and we represent the 

government in a wide range of cases, from contract disputes to tort 

cases, from loan defaults to immigration. 

Since assuming this position in April 2009, I have focused on 

three main priorities for the Civil Division: Protecting the American people, protecting taxpayer dollars, and protecting the Nation’s consumers. 

Protecting the American people remains the department’s highest priority. Part and parcel to that, the Civil Division is currently 

defending around 140 habeas corpus petitions brought by detainees 

held at the detention facility at Guantanamo Bay, Cuba. In these 

cases, we vigorously defend our national security consistent with 

the rule of law. 

Moreover, our attorneys have performed excellent work in the 

area of terrorist financing, defending the government’s actions in 

court when they are challenged to help shut down the flow of 

money to international terrorist organizations. We are particularly 

proud of that work. 

In terms of protecting taxpayer dollars, we have enjoyed significant success. Since January 2009, the government has recovered 

approximately $4 billion in civil fraud cases. And when that is coupled with the criminal recoveries from the Civil Division’s Office of 

Consumer Litigation Criminal Cases, the Civil Division has standing side by side with U.S. attorneys around the country obtained 

over $5.7 billion in civil and criminal fraud settlements, judgments, 

penalties, restitution and forfeitures. 

Health care fraud, of course, comprises the largest category of 

our fraud recovery. Since January 2009, the Civil Division has recovered over $3 billion in all health care fraud matters, with the 

largest of those matters being pharmaceutical and medical device 

industry cases. 

But our efforts to tackle fraud don’t end with health care. They 

extend to other areas as well. We have actively pursued economic 

fraud. We seek to recover ill-gotten gains for the benefit of fraud 

victims. Our increased enforcement efforts in this area and particularly in the area of housing and mortgage fraud have increased recoveries in this area from $15 million in 2008 to $52 million in 

2009 and the first half of 2010. In fact, last week we announced 

Operation Stolen Dreams, a mortgage fraud sweep which involved 

over 190 civil enforcement actions, including recoveries of more 

than $147 million in mortgage fraud. 

7 

We have also been very vigilant in our efforts to root out fraud 

in connection with the procurement of goods and services used by 

our military and civilian agencies, including fraud affecting our 

men and women fighting in Iraq and Afghanistan. Since January 

2009, procurement fraud cases have accounted for approximately 

$645 million in recoveries, more than the department’s procurement fraud efforts in 2007 and 2008 combined. 

Finally, the Civil Division continues to be at the forefront of our 

efforts to protect consumers through vigorous civil and criminal enforcement of our Federal consumer protection laws. 

Mr. Chairman, my written testimony describes in more detail 

other areas where the Civil Division is actively engaged and where 

we feel we may actually need additional resources. The department’s work in supporting the Federal Government’s response to 

the Deepwater Horizon oil spill is one example. I would be happy 

to address those other areas should you have questions. And again, 

I thank you for the opportunity of appearing before you today. 

[The prepared statement of Mr. West follows:] 

8 

PREPARED STATEMENT OF THE HONORABLE TONY WEST


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Mr. COHEN. Thank you, General West. I appreciate it. And you 

were perfect, even though I think our lighting system failed. 

Tell me about the Deepwater Horizon. What are we doing? What 

are we going to do? 


West-15.eps
23 

Mr. WEST. Well, Mr. Chairman, soon after the explosion on the 

Deepwater Horizon, the Attorney General sent Ignacia Moreno, 

who is the Assistant Attorney General For Environment and Natural Resources, and myself down to the Gulf, where we engaged 

primarily in advising the Federal agencies responsible for being 

first responders on the scene and any legal advice that they may 

need, but also to enforce the law, because it was important early 

on to make it clear that we would hold the responsible party, BP, 

accountable for every dime of removal costs, cleanup costs associated with the spill. 

Since that time, both Ms. Moreno and myself have returned to 

the Gulf. We have been there with the Attorney General. The Attorney General has acknowledged the existence of civil and criminal investigations into the causes of this explosion and our intent 

to hold individuals accountable for not only the financial damage 

but the natural resources damages as well. 

The Civil Division has been engaged in ongoing discussions with 

BP and with Transocean, making it clear to them what their responsibilities are as responsible parties. And that extends to efforts 

that were led by Associate Attorney General Tom Perrelli from the 

Department of Justice to help negotiate the existence, the creation 

of this $20 billion escrow fund, an independent claims process. 

Mr. COHEN. Will you be participating in any way in the escrow 

fund in meting out or ferreting out the claims? 

Mr. WEST. It is important that the claims process be truly independent. Certainly the Department of Justice anticipates it will be 

consulted as protocols and other details are being worked out with 

the creation of the independent claims process, but it is very important that it have integrity, that the American people see it as an 

independent process, and that is what we are committed to. 

Mr. COHEN. Let me ask you about FOIA claims. The Civil Division has resolved FOIA cases so as to promote President Obama’s 

agenda of transparency and openness. 

But the Civil Division has litigated multiple FOIA cases that 

originated under the Bush administration policy. How do you reconcile that decision? Is there really a change in policy? 

Mr. WEST. Well, last year, in fact, the Attorney General did issue 

a new FOIA guidelines policy. It is one which puts forward the Administration’s presumption that we will be an open and transparent government. In fact, the presumption is that in response to 

FOIA cases, we will be transparent, we will seek to disclose whenever we can, sometimes with regard to the Department of Justice, 

of course, that is a little tricky because we often have confidential 

criminal investigations going on. But not withstanding that, the intent is to, wherever we can, err on the side of disclosure. And that 

policy has not only been communicated throughout the Department 

of Justice, throughout the Civil Division, but we are communicating that to our client agencies as well. 

Mr. COHEN. But don’t some of these Bush administration FOIA 

cases that you all are pursuing because of a continuum theory, I 

guess, that they might conflict with Obama’s position, the President’s position, don’t we have discretion, and we don’t really have 

to pursue those? Why are we pursuing them, and why are we 

24 

maintaining certain policies of the previous Administration that 

are counter to hope and the future? 

Mr. WEST. Without commenting on any particular piece of litigation, which I wouldn’t be able to do, I can say, as a general matter, 

there are cases, of course, which any Administration inherits, and 

they obviously pursue them in accordance with the law and with 

the facts of those cases. 

So I can assure you, with regard to how we view FOIA cases and 

how we evaluate our disclosure obligations in those cases, they are 

consistent with the President’s preference for an open, transparent 

government. They are consistent with the Attorney General’s—— 

Mr. COHEN. Let me ask you this. In March, the National Security 

Archive at GW audited the Administration’s performance with respect to FOIA requests and found that only 4 of 90 Federal agencies studied showed both increases in information released and decreases in denials under FOIA since the implementation of the Attorney General’s 2009 memorandum. 

What steps will the Civil Division take to increase the number 

of agencies that show both increases in releases and decreases in 

denials? The statistics seem to say it is the same game. Sometimes 

it does happen that the Administration does come in and the Administration that used to be against National Security Letters because they were part of the legislative oversight, and then once 

they become part of the Administration, they fall prey to the same 

type of beliefs that sometimes the executive would have,’’This is 

mine, so I’m going to do it.’’ 

Well, it seems like there should be—sometimes there is a conflict, and why have the departments—the statistics say we are not 

doing any better under FOIA than what happened with the Bush 

administration. 

Mr. WEST. With respect, Mr. Chairman, I think the jury is still 

out on exactly how, at the end of the day, how our FOIA performance will be evaluated. As I know, you appreciate the fact that the 

policy was issued in the spring of last year; it still takes time, of 

course, to make sure that that change in policy, that change in attitude is something that is communicated throughout the Federal 

Government and that it is communicated throughout all levels of 

the government. That does take some time, but I can assure you 

that when it comes to evaluating these cases and when it comes 

to making the decisions about disclosure, not only are we obviously 

taking into consideration the existing law and the facts of the case, 

but what is governing and guiding our work in that is the new policy as articulated by the Attorney General. 

Mr. COHEN. Thank you, Mr. West. I have a red light. 

Mr. Franks has a green light. 

Mr. FRANKS. Thank you, Mr. Chairman. 

Again, Mr. West, I appreciate you being here. 

In fiscal year 2009, the Federal Government’s Health Care Fraud 

and Abuse Control Program returned about $2.5 billion to the 

Medicare trust fund. Considering that taxpayers are estimated to 

be losing anywhere between $24 billion and $80 billion per year in 

the Medicare and Medicaid programs and I think that it is my personal opinion that under the government takeover that is coming, 

that that is going to increase precipitously; and it seems to me that 

25 

the Justice Department needs to be doing more to combat health 

care fraud. 

What additional tools and resources does the Civil Division need 

to combat health care and fraud like that perpetrated against 

health care programs more effectively? What do you need? 

Mr. WEST. Thank you, Ranking Member Franks. 

I think we have a pretty impressive record of impact and success 

when you look at how we tackled health care fraud since January 

2009. 

One of the most important things that we did in May of last year 

at the direction of the President was to form something called the 

Health Care Fraud Prevention and Enforcement Task Force, 

HEAT, which brings together the Department of Justice’s resources 

with those of the Health and Human Services Department and Secretary Sebelius’s resources in a coordinated way that is really unprecedented. It is sharing data, sharing information, sharing resources, and creating efficiencies which allow us to be much more 

effective in combatting health care fraud. 

And there have been two things that have come out of that. One 

are the strike forces, which are being directed by the Criminal Division, which have had enormous success. And then the increase, 

as I talked about in my oral statement and is in the written testimony, the increase that we have seen in the civil recoveries of 

health care fraud. So I think that we are making the most of the 

resources that we have, and the President’s budget reflects those 

additional resources that we think we need. 

Mr. FRANKS. Well, Mr. West, this country has also been going 

through a subprime mortgage crisis that has had a great impact 

and great cost to investors and banks and has forced many Americans, of course, to lose their homes. And certainly, much of this crisis was brought about by poor underwriting standards and people 

borrowing more than they could afford. I think we all know that. 

But mortgage fraud has also played a significant role in the 

subprime mortgage crisis. What is the Civil Division doing to go 

after these individuals or groups that have taken part in mortgage 

fraud schemes to help prevent mortgage fraud in the future? 

Mr. WEST. Mortgage fraud is one of the most difficult challenges 

that the Nation faces, as you correctly point out, and it is one of 

the highest priorities that we have in the Civil Division. 

The President last November created something called the Financial Fraud Enforcement Task Force, which brings together a 

wide array of Federal agencies as well as State and local government law enforcement agencies which are focused on financial 

fraud. And one of the key components of that task force is the 

Mortgage Fraud Working Group, which I am a co-chair of. And just 

this past year, we began a series of listening tours, really, a summit, mortgage fraud summits. The last one we held in fact was in 

Phoenix, and where we went were those areas where the data 

showed us that the mortgage fraud challenge was the most acute 

and where we believe we could find some of the best practices 

where communities and law enforcement and industry were working together to try to tackle this problem. 

One of the things that came out of that was Operation Stolen 

Dreams, which was the massive mortgage fraud sweep that we just 

26 

announced last week, where we have a record number of civil enforcement actions, over 190; a record number of recoveries, $147 

million, when it comes to mortgage fraud. And so we are actively 

engaged, working with our State and local partners and U.S. Attorney’s Offices around the country on this issue. 

Mr. FRANKS. Well, thank you, Mr. West. I wish you the very best. 

And, Mr. Chairman, I am going to go ahead and yield back at 

this point. 

Mr. COHEN. Thank you, Mr. Franks. 

I now yield to Mr. King of Iowa. 

Mr. KING. Thank you, Mr. Chairman. 

Mr. West, thanks for your testimony. First, I have a softball 

question for you to kind of break the ice here. And that would be 

the Office of Immigration Litigation, the acronym for that is, what? 

Mr. WEST. OIL. 

Mr. KING. Have you considered changing that particular name? 

Mr. WEST. Well, there are some things that are easy to do in government, and some things are not. I don’t think changing the name 

of OIL is one of those things. 

Mr. KING. I am glad you are comfortable with that. I won’t belabor that point. It just caught my attention. 

Let me see. I would like to start down here with the activity that 

you had with regard to the impending litigation on the health care 

act. And I would just pose this question to you, what, if you prevail 

and as I understand your argument, rather than go into it very 

deeply, if you prevail, it will be on your argument that the Commerce Clause grants constitutional authority for the Federal Government to pass legislation which we know now as Obama care. 

Would I be correct on that? 

Mr. WEST. Well, if I could answer you this way. We certainly believe the law is constitutional. We believe that we will prevail in 

court. But I think it would be appropriate, given that it is pending 

litigation, that I allow our pleadings to speak for me on that point. 

Mr. KING. In other words, you would rather not comment until 

it is litigated? 

Mr. WEST. Well, certainly, in fact, we will have the first opportunity—we have filed. 

Mr. KING. I am helping you shape your argument, though, Mr. 

West. 

Mr. WEST. We have filed certainly in Virginia and other States, 

in Florida, where you can see the arguments as clearly laid out as 

to sort of why we believe the Affordable Care Act is constitutional. 

But—— 

Mr. KING. My question to you, then, is if the commerce clause 

is a component of that argument, and by your testimony it is, then 

what would be the left of the Commerce Clause should you prevail 

on that point? 

Mr. WEST. Again, I think I am going to allow the litigation to 

speak for me. In fact, next week will be the first oral argument in 

this—in one of the various cases. 

Mr. KING. And I would submit that if you prevail on the point 

that is the Commerce Clause, then there would be nothing left of 

the Commerce Clause, in my judgment, because there could be— 

there always has been—babies born within the States that don’t 

27 

have access or utilize any kind of health care, that live and die. So 

they would still be compelled to buy health insurance under this 

legislation. So I was just going to take this argument for you to 

consider because you have to be nimble when you face these people 

that are smart attorneys. 

And somebody has already gone back to Wicker v. Filburn and 

said that, even though he raised the wheat and ate his own wheat 

and didn’t sell it to anybody, it affected the overall supply because 

he would have bought the wheat from somebody else. That is the 

Commerce Clause, right? Now, I think it is a completely weak argument, and it has been weakened otherwise. 

Now, Obama care does this. If you look at Wicker v. Filburn, and 

it takes it to another level. It takes it to this level that says, government either raises the wheat or the health care in this case, or 

approves those who do and approves the product and requires everyone to buy wheat and eat wheat. That is your Commerce Clause 

argument. So I put that into the record, so you are nimble enough 

to deal with that at the time when it comes, Mr. West. 

I would really rather spend our time, though, talking about the 

Arizona immigration law. And I am going to toss you out the Judge 

Poe softball that surely you have prepared yourself to respond to 

when you are asked, have you read the bill? 

Mr. WEST. Oh, yes. I have read the bill several times. 

Mr. KING. As have I. And I appreciate that, because now we have 

a basis of understanding here. 

And the news reports have reported that you have issued a draft, 

that you have an internal document that would be a draft civil 

complaint in preparation to bring suit against Arizona on S.B. 10 

70. Is that correct? 

Mr. WEST. Congressman, I am not in a position to make any announcements today about that. We are working through various 

issues in connection with that issue. I do anticipate that the department will make some type of announcement fairly soon. 

Mr. KING. Mr. West, I am reading from a news report here. This 

is a Fox News, June 18: Obama administration planning to file suit 

against Arizona immigration law. I believe this article, and I don’t 

have it highlighted here, but my memory says that your department has produced a draft civil complaint. Does that exist? 

Mr. WEST. I can’t respond to the news report that you in fact— 

I don’t think I have even read it—that you—— 

Mr. KING. Respond to my question as to whether you or your department have produced a draft civil complaint? 

Mr. WEST. Again, we are still working through various issues. I 

think it would be inappropriate for me to get into any type of internal deliberations that we have at the Department of Justice. I can 

say that this is an issue—— 

Mr. KING. It is pretty astonishing, Mr. West, not to be able to 

answer a question like that. It is not like this affects any pending 

litigation; whatever you are doing internally, you are apparently 

advising people on how to act according to Arizona’s immigration 

law. And if there is an internal document known as a draft civil 

complaint, I would think that you could tell us. It has been discussed as far up as the Secretary of State. So I wouldn’t think that 

28 

there would be an impediment to answering a direct question like 

that. 

Mr. WEST. Well, again, I am not in a position to make any announcements today about that. And I think it would be inappropriate for me to comment on internal deliberations. 

Mr. KING. Let me ask you, then, since you read the bill and you 

are familiar with the preemption, do you read anything in the bill 

that would be preempted by existing Federal statute? 

Mr. WEST. Again, I think, at this point, it would be premature 

for me to share my own thoughts on this. 

I think one of the important steps that we have taken is we 

have, in looking at all of the issues regarding this bill, this law, I 

have personally gone out to Arizona. I have wanted to get the input 

of the Attorney General out there, the Governor out there, because 

it is important to law enforcement officials, because it is important 

for us to take into consideration all of the varying views that folks 

have on this particular issue. We are still working through various 

issues. And—but I do anticipate that soon the department will 

make the—— 

Mr. KING. Have you had any contact with the ACLU on this? 

Have you reviewed their lawsuit? Have you had any contact with 

them? 

Mr. WEST. Again, we have reached out to law enforcement, to a 

number of different interested parties—— 

Mr. KING. Including the ACLU? 

Mr. WEST. Quite frankly—— 

Mr. COHEN. Time is up. 

Mr. KING. Mr. Chairman, I just ask that the gentleman be allowed to answer the question as to whether he has had contact 

with the ACLU. 

Mr. WEST. I don’t know the answer to that question. I personally 

have not. 

Mr. KING. Thank you, Mr. Chairman. 

Mr. COHEN. Recently Mr. Lawrence Wilkerson, chief of staff to 

former Secretary of State Colin Powell, said that President Bush 

and others in the Administration knowingly covered up the fact 

that hundreds of innocent men were sent to Guantanamo out of 

fear for their release, for the fear that their release could harm the 

push for war in Iraq and the broader war on terror; that they knew 

what they were doing and knew it was illegal. 

Given the severity of those allegations by such a distinguished 

gentleman in that position, what does the Civil Division intend to 

do in following up on these allegations? Is there an investigation 

that you are going to pursue? 

Mr. WEST. Well, Mr. Chairman, I wouldn’t be able to comment 

on whether or not an investigation has been launched with regard 

to that. I can certainly assure you that to the extent that there are 

any violations of law that fall under the jurisdiction of the Civil Division, to the extent there is a Civil Division component, that would 

be implicated, it would be the type—and again, not speaking specifically to this case, but in any case, it would be the type of thing 

that would get some type of attention. But I can’t confirm or deny 

any type of investigation. 

29 

Mr. COHEN. What is the status of Yucca Mountain nuclear waste 

litigation? 

Mr. WEST. Well, we are engaged in various lawsuits involving 

spent nuclear fuel with individuals—with companies from the nuclear industry. They are in various stages of litigation, some, and 

I think, beyond that, I probably couldn’t comment specifically on 

where we are. 

Mr. COHEN. How much money has been spent on attorneys on 

this case so far? 

Mr. WEST. I don’t know the answer to that question. 

Mr. COHEN. Do you have a ballpark figure? 

Mr. WEST. For both private and public attorneys, I don’t know 

the answer to that question. 

Mr. COHEN. Ballpark figure? 

Mr. WEST. I don’t even have a ballpark figure. I think I would 

have to know a little more about the billing rates of the private attorneys involved in those cases. 

Mr. COHEN. How much discretion does the Justice Department 

exercise in determining which cases it is going to pursue? Has the 

Justice Department had any opportunities where they could decline? You can decline to defend an action, can you not? Are you 

obligated to defend every action or represent? 

Mr. WEST. Well, no, there is discretion. There is certainly prosecutorial discretion. And within the Civil Division, we exercise discretion on whether or not we will intervene in a certain case or 

whether or not we will pursue a certain case. So certainly there is 

an appropriate role for discretion to be exercised. 

Mr. COHEN. Have there been times where you can cite to me 

where you exercised this discretion and worked out and resolved a 

case rather than take it to the Supreme Court because you thought 

the facts were different than maybe the other Administration had? 

Mr. WEST. I probably would not be able to cite a specific case, 

not because there isn’t one, but because I don’t know if it would 

be appropriate to—— 

Mr. COHEN. I don’t see why it wouldn’t be appropriate. If you 

have settled the case, it is a case of the United States Government, 

and part of transparency and openness is to disclose those things. 

There is no problem in disclosing that, Mr. West. 

Mr. WEST. Certainly not disclosing settlements, you are right. I 

am happy to talk about settlements. But if the question is, are 

there cases where we looked at the facts in an investigation, made 

a determination that we would not either prosecute or would not 

go forward, and it did not result in a public settlement, then that 

would be inappropriate for me to comment on. 

But I am happy to talk about, Mr. Chairman, if there are any 

settlements in which clearly we have decided to compromise—— 

Mr. COHEN. Can you give me a few examples, cases where you 

decided because of policy differences between this and the previous 

President that, rather than continue litigation, you have engaged 

in negotiations and come to a settlement? 

Mr. WEST. Because of policy. I am sorry. I misunderstood your 

question. I think there are two very good examples. One is the 

Cobell litigation, involving Native Americans. Another is the 

Pigford litigation, involving African American farmers, which by 

30 

the way, we appreciate the Congress’s movement on both of those 

cases, and we hope that the Senate will follow suit. 

Mr. COHEN. There was a problem, I guess, we had—I don’t know 

how much we got on the Pigford case, but there was more money 

than some wanted, and the issue was, did it need a PAYGO? 

When the United States Government settles a case, shouldn’t the 

Secretary of Agriculture find a way to pay it? I mean, why should 

he have to be bound by PAYGO when the United States Justice 

Department has settled a case? That is an obligation of the government up to that point, right? 

Mr. WEST. Mr. Chairman, I think I would defer to the Secretary’s 

response on that. Certainly, as you know, when the Civil Division 

evaluates a case, it is evaluating it from the standpoint is this 

money that ought to be expended out of the judgment fund. Is that 

an appropriate use of public money to compromise a case. 

Mr. COHEN. I yield. 

Would you like to go on, or we can—— 

Mr. FRANKS. Thank you, Mr. Chairman. I will be really brief. 

The Civil Division has filed, Mr. West, motions to dismiss both 

lawsuits brought by States challenging the constitutionality of the 

recently passed health care law. And I am just wondering if the Office of Legal Counsel has issued an opinion on the constitutionality 

of the health care law, and if so, can you provide the Committee 

with a copy of that opinion? 

Mr. WEST. I can certainly check and see. I am not—as I sit here, 

I am not aware of that. But I can certainly check and get back to 

you. 

Mr. FRANKS. All right. 

For the record, Mr. Chairman, I hope we can make that an official request, at least on my part. 

In this Congress, Representative Nadler introduced H.R. 984, the 

‘‘State Secrets Protection Act.’’ And of course, I am concerned, you 

know, being on the Armed Services Committee and some other 

Committees, that this could potentially be a threat to our national 

security. I think it potentially endangers it. But what is your department’s position on H.R. 984? Are you concerned that the bill 

threatens U.S. national security in any way? 

Mr. WEST. I am not aware that the department has taken a position on that bill. 

I can tell you that the department has instituted, the Attorney 

General has articulated a State Secrets Policy. It is a new policy 

that we follow before any assertion of that privilege is made. And 

the legal standard that we implement is to protect against the unauthorized disclosure of any information that might cause significant harm to the national security. 

Mr. FRANKS. So, then, if I am understanding you right, you have 

a policy in place. Do you think you need additional congressional 

legislation to deal with that issue? 

Mr. WEST. Well, again, I am not aware of the department having 

taken a position on that case. 

Mr. FRANKS. What is your position? 

Mr. WEST. Well, my position is I think we would be—always welcome the opportunity to talk about these issues with Congress, and 

we would welcome the opportunity in this instance as well. 

31 

Mr. FRANKS. Well, you would talk about any issue, wouldn’t you? 

That doesn’t mean you have a position on it. 

Mr. WEST. That is true. And certainly, I wouldn’t be the one to 

announce, as a matter of first impression, the position of the Department of Justice on this issue. 

But I can say that the department’s State Secrets Policy is one 

which reflects our concern that it be asserted only in those instances where it is absolutely necessary; that it be narrowly tailored but that it be tailored to protect against any significant harm 

to the national security. 

Mr. FRANKS. I think that is the best I am going to get. But thank 

you. That is pretty good actually. 

Thank you, Mr. Chairman. 

Thank you, sir. 

Mr. WEST. Thank you. 

Mr. COHEN. We have votes, Mr. King. If you would like to ask 

a few questions, go ahead. 

Mr. KING. Thank you, Mr. Chairman. 

Mr. West, I have drafted a letter that I sent to Attorney General 

Holder that is dated May 28th, and it is only addressed to him, and 

it has to do with a request for a copy of the draft civil complaint 

that I referenced earlier in our discussion and which you have not 

acknowledged yet of its existence. I would just ask you, should I 

have addressed that letter to you? Have you seen that letter? 

Mr. WEST. I have not seen that letter, Congressman. But I am 

happy if you would like to send me a copy or I can pick one up before I leave—— 

Mr. KING. Actually, I can have my aid hand it to you right now. 

It is pretty short. 

And I would ask unanimous consent to introduce that letter into 

the record. 

Mr. COHEN. Without objection. 

[The information referred to follows:] 

32 

Mr. KING. Thank you, Mr. Chairman. 

And it is very brief, and I won’t belabor this point. It simply asks 

for a copy of the draft civil complaint. And I understand that you 

won’t be in a position to respond to that letter here. And I won’t 

put you on that spot and ask you, Mr. West. 

Mr. WEST. I appreciate it. 

Mr. KING. Thank you. 

But I would like to explore this Arizona case just a little bit 

more. Also, I think I may have put some words in your mouth in 

the earlier exchange, and I would like to provide the opportunity 


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33 

for clarification, because I believe I said that you or your department had argued that the interstate commerce—the Commerce 

Clause was a component. I have read that in the news, but I don’t 

know that I have read a quote from the Justice Department on 

that point. 

So would you care to clarify as to whether that is on the record 

one of the arguments that would be made by the Justice Department? 

Mr. WEST. I can certainly say that, in the briefs that we have 

filed, several of them—several of the cases that have been filed 

challenging the Affordable Care Act raise the Commerce Clause 

issue. They make Commerce Clause arguments and we have responded in kind. So we are responding to suits that have been 

filed, and our response is a motion to dismiss, respond to arguments based on the Commerce Clause that plaintiffs have raised. 

Mr. KING. Fair enough. I just wanted to make sure we had the 

record clear, and I didn’t push you into something that wasn’t your 

position or imply something, because I recall the testimony of the 

Attorney General here some weeks ago before the Committee, and 

I think most everybody in America saw some clips from that. 

In that testimony that day, without putting words in the mouth 

of the Attorney General, I will submit that he conceded the point 

that he had been directed by the President or the White House at 

least to bring suit against Arizona’s immigration law. And when 

questioned about where he might have concerns about Arizona’s 

immigration law, S.B. 1070, questioned about what points in the 

Constitution might be unconstitutional, what points—what Federal 

statute might preempt Arizona’s law or what controlling case law 

might be the concern that would bring the Justice Department to 

bring suit against Arizona, the Attorney General wasn’t able to answer any of those questions about the Constitution, Federal preemption or case law. 

Subsequent to that questioning, he acknowledged he hadn’t read 

the bill, but he had been directed to bring suit against Arizona. 

And at the end of his response to my questions, he was allotted 

time to respond to my questions after the clock had run out, and 

he said that the office is not politicized. 

It is hard to accept that statement when there is a suit that is 

being brought by the Justice Department against a law that has 

been passed by a State that mirrors Federal law; if Federal law is 

constitutional and the legislation itself says that it will be able to 

conform with Arizona and the U.S. Constitution, it is hard to accept the idea that the Justice Department is not politicized if a decision can be made in the White House, directed to the Attorney 

General, acted upon by the Justice Department, including your division within the Justice Department, and you are the first person 

that has come from the Justice Department that has actually read 

the bill. 

You recognize how hard it is for us here on this panel, representing the voice of the American people, to accept the argument 

that the office has not become politicized. What else could be the 

motive if the President has made this order or the people who 

speak for him and nobody has read the bill? What otherwise could 

be the motive? And how could the Justice Department act on anyVerDate Aug 31 2005 10:33 Nov 18, 2010 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6601 H:\WORK\COMM\062410\57083.000 HJUD1 PsN: 57083
34 

thing other than the law itself? And the equal justice under the 

law, the blindfolded Lady Justice that I mentioned in my opening 

remarks, Mr. West. Those trouble me and I would appreciate your 

response. 

Mr. WEST. Just to clarify the question that you would like me to 

answer is—I am sorry, I just didn’t quite—— 

Mr. KING. How can we be asked to accept the statement of the 

Attorney General that the Justice Department is not politicized in 

the face of all of this and evidence to the contrary, much of which 

I haven’t stated today? 

Mr. WEST. I think, really, the only way that I can answer that— 

I appreciate the perspective that you have—is that the Attorney 

General really thinks of himself as a career Justice Department attorney. He grew up in the Department of Justice, started there as 

a line attorney, made his career there. And I know that he is committed in an unwavering way to a nonpartisan, nonpoliticized Department of Justice that acts to do what is in the best interest of 

the United States and the American people. 

For me, I got my start at the Department of Justice early. I 

think of myself very much as a line lawyer. I was an AUSA for 5 

years. And before that, I was an attorney in Main Justice. 

And I think one of the things that the Attorney General has articulated well and one of the things that I have always loved about 

the Department of Justice is that it is one of the few places in this 

country where you can go and your overriding charge is to do, not 

what is popular or partisan or political, but to do what is right. 

And I appreciate that there may be differences of opinion on 

whether or not one is doing what one is doing in alliance with any 

particular view of the world. 

But I guess the only way I can answer that question is to say 

that I appreciate the perspective. With regard to this particular 

law, this particular litigation, we have endeavored to get the input 

of the Attorney General of the State of Arizona, the Governor of the 

State of Arizona. It is something that we take very seriously, and 

we continue to work through various issues. 

Mr. KING. Mr. West, I appreciate the manner with which you 

have conducted yourself here at this hearing today and also the difficult position that you might find yourself in today. So thank you 

very much for your testimony. 

I yield back the balance of my time. 

Mr. WEST. Thank you, Congressman. 

Mr. COHEN. Thank you. 

I would like to thank the witness for his testimony today. 

Without objection, the Members have 5 legislative days to submit 

additional written questions, which are forwarded to the witness, 

and ask him to answer as promptly as he can to be made a part 

of the record. 

Without objection, the record will remain open for 5 legislative 

days for the submission of any other material. 

Thank you, Mr. West. 

The hearing is adjourned. 

[Whereupon, at 12:03 p.m., the Subcommittee was adjourned.] 

35 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE HENRY C. ‘‘HANK’’ JOHNSON, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA, AND MEMBER, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

f 


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*Note: The Subcommittee did not receive a response to the post-hearing questions submitted 

to this witness prior to the printing of this hearing. 

POST-HEARING QUESTIONS SUBMITTED TO THE HONORABLE TONY WEST, 

ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE* 


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Æ 


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