WASHINGTON --- Senator Chuck Grassley said today that defeat of an amendment 10 years ago to allow more domestic energy production in Alaska was "enormously shortsighted" because today that oil would be driving down prices at the pump for consumers.

 

"It's past time to take action to ramp up domestic production of traditional energy," he said.  "In 2011, consumers spent a greater percentage of their household income on gasoline than any other year since 1981.  Affordable energy is a major economic issue."

 

Grassley made his remarks on the 10-year anniversary of a Senate vote against legislation to open a tiny portion of the Arctic National Wildlife Refuge - ANWR - to oil and gas development.  On April 18, 2002, the Democratic-controlled Senate defeated the domestic production initiative with many senators arguing that because it would take up to 10 years for the oil to reach the market ANWR was too far down the road to impact the energy supply or energy security.

 

"This missed opportunity should be a lesson.  We shouldn't make the same mistakes again," Grassley said.  "Greater domestic energy production would increase supply and help to lower prices.  It would create American jobs.  And it needs to start today."

 

Grassley said the Obama administration has made things worse by restricting access to domestic energy sources.  "The President's policies have prevented more oil production in the United States and resulted in higher prices, lost opportunities for job creation, and less energy security," Grassley said.  "The President's record contradicts his recent remarks that he's for an all-of-the-above energy strategy."

 

Citing Obama administration policies that restrict access to federal lands and permitting delays, regulatory threats to refiners, and the decision to deny the Keystone XL decision, Grassley said that by limiting domestic energy production, we have less supply and higher prices.

 

The complete text of Grassley's statement today is below and includes comments made during the 2002 Senate debate about ANWR being ineffective because production would have taken 10 years.  Click here to watch the speech.

 

 

Floor Statement of U.S. Senator Chuck Grassley

Wednesday, April 18, 2012

 

Mr. President - Around the country, American consumers are paying near-record prices for gasoline at the pump.  The current average price for a gallon of gas is near $3.90 a gallon.  Since January 2009, the average price of a gallon of regular gasoline has more than doubled.  In 2011, consumers spent a greater percentage of their household income on gasoline than any other year since 1981.

 

Affordable energy is a major economic issue.  Paying nearly $4 for gas acts like a hidden tax and results in people having less money to spend on other things.  Rising energy prices also increase the cost of doing business for job creators and take away dollars that otherwise could go to hiring workers.

 

We should be doing everything possible to prevent these high energy prices.

 

The Senate had an opportunity ten years ago today to take action to increase our domestic oil supply.  Unfortunately, the Senate missed that opportunity.   Ten years ago today, the Senate considered an amendment offered by Senator Frank Murkowski to open a tiny portion of the Arctic National Wildlife Refuge to oil and gas development.  A vote on the cloture motion was rejected by the Democrat majority in the Senate on April 18, 2002.

 

During that debate, opponents argued that opening ANWR to development would never supply more than two percent of our nation's oil demands.  They opposed it based on the belief that opening ANWR wouldn't address the real problem, namely, our dependence on fossil fuels.  They said we needed to work toward a comprehensive approach.  Opening ANWR was also portrayed as a distraction from real solutions like conservation, alternative and renewable energy, and less environmentally sensitive fossil energy development.  Some even argued that fully-inflated or low-friction tires should be a larger part of our national energy policy.

 

I recognize the need for a comprehensive, balanced national energy policy.  I truly believe in an all-of-the-above approach that includes conservation, alternative and renewable energy, nuclear power and oil and gas development.  But the fact remains, we were talking about these policies as solutions to our energy problems in 2002, yet gas prices are still near $4 a gallon.

 

I listened to dozens of speakers who argued against opening ANWR because it wouldn't address our near term energy needs.  They said it would take nearly ten years to get that oil to consumers.  Ten years ago we were told to forget about opening ANWR, because development was too far down the road to impact our energy supply or energy security.  Here a few quotes from my Democratic colleagues during that debate in April 2002:

 

·         "I oppose the proposal to drill in the Arctic National Wildlife Refuge.  Drilling in ANWR will not create energy independence, even if we started drilling tomorrow, the first barrel of crude oil would not make it to the market for at least ten years.  So it would not affect our current energy needs."

 

·         "The oil exploration in ANWR will not actually start producing oil for as many as 10 years.  Exploring and drilling for oil is not forward thinking."

 

·         "That oil would not be available for 10 years.  This means drilling in ANWR would not provide any immediate energy relief for American families."

 

·         "Developing ANWR is simply not a necessary component of a progressive energy policy for this country.  For a period starting at about 2012, we would see an increase in domestic production under ANWR, if ANWR was open to development.  So, development would not address the near-term prices or shortages with which people are faced."

 

·         "When my colleagues come to the floor of the Senate and suggest to us that the crisis in the Middle East is a reason to drill in ANWR, that is a misleading argument because no oil will flow from ANWR until from seven to 10 years from now.  That means if you open the refuge today, you are not going to see oil until about 2012, maybe a couple years earlier."

 

·         "Oil extracted from the wildlife refuge would not reach refineries for seven to 10 years."

 

The defeat of the Murkowski amendment back in 2002 was enormously short-sighted.  If we had voted to open ANWR ten years ago, that oil would be driving down prices at the pump for consumers today.  Time after time opponents of domestic oil production have argued that because it won't lower prices at the pump today, it's not worth doing.  Does anyone wonder if the American people today wish that the Senate had opened ANWR ten years ago?

 

It is past time to take action to ramp up domestic production of traditional energy.  Greater domestic energy production would increase supply and help to lower prices, and it would create American jobs.

 

President Obama continues to push policies that contribute to higher gas prices, including restricting access to federal lands and permit delays, regulatory threats to refiners, and his decision to deny the Keystone XL decision.  By limiting domestic energy production, we have less supply and higher prices.  The Obama administration has made things worse by restricting access to domestic energy sources.  The President's record contradicts his recent remarks that he's for an all-of-the-above strategy.  His policies have prevented more oil production in the United States and resulted in higher prices, lost opportunities for job creation, and less energy security.  President Obama's denial of the Keystone XL pipeline inhibits energy-related development that could create 20,000 jobs.

 

Greater domestic energy production would increase supply and help to lower prices, and it would create American jobs.  It's time to take action.

 

Denying ANWR development ten years ago was a mistake.  The Senate missed an opportunity ten years ago that would have brought gas price relief to consumers now.  We shouldn't make the same mistakes today.

 

-30-

Top Republican Judiciary Committee Members Question Obama Administration's Commitment to Medical Malpractice Reform

 

WASHINGTON - Senate Judiciary Committee Ranking Member Chuck Grassley, House Judiciary Committee Chairman Lamar Smith and Senate Finance Committee Ranking Member Orrin Hatch are concerned that the Obama administration has diverted tens of millions of dollars intended for research on malpractice reform to other forms of research.

 

In a letter to the Secretary of Health and Human Services Kathleen Sebelius, the members point to a September 9, 2009 address to Congress where President Obama announced an initiative to address the rising costs of health care associated with medical malpractice.

 

The members wrote, "Frivolous lawsuits, the high cost of malpractice insurance and excessive damages awards are dragging down our health care system...However, the AHRQ's (Agency for Healthcare Research and Quality) description of the research being funded (through the President's initiative) does not mention, much less emphasize, reforms to medical malpractice laws, as was clearly implied by the President's speech."

 

The letter specifically calls attention to the fact that none of the $23.2 million awarded has gone to researching or implementing "traditional" medical malpractice reforms and that it appears that all of the research funded by the AHRQ is aimed at proving the obvious: as the number of adverse events declines, the number of malpractice lawsuits also declines.

 

The letter goes on to ask questions about why the grant program has not done what the President publicly committed to do with the money, which is to try to move forward on medical malpractice reform.  It also asks for an accounting and justification of the way that the money has been spent.

 

Here is a copy of the text of the letter to Sebelius.

 

April 3, 2012

Via Electronic Transmission

The Honorable Kathleen Sebelius

Secretary

Department of Health and Human Services

200 Independence Avenue, S.W.

Washington, DC 20201

 

Dear Secretary Sebelius:

 

We are writing to express our concerns with the Patient Safety and Medical Liability Reform Demonstration and Planning grants being funded by the Department of Health and Human Services (HHS).

 

On September 9, 2009, President Obama, in a speech to a joint session of Congress on health care, directed you to move forward on an initiative aimed at reducing health care costs.  Specifically, he stated:

..., many in this chamber - particularly on the Republican side of the aisle - have long insisted that reforming our medical malpractice laws can help bring down the cost of health care. I don't believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs.  So I am proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine.  I know that the Bush Administration considered authorizing demonstration projects in individual states to test these issues.  It's a good idea, and I am directing my Secretary of Health and Human Services to move forward on this initiative today.

(Emphasis added).

On June 11, 2010, pursuant to the President's orders, the HHS, through the Agency for Healthcare Research and Quality (AHRQ), awarded $23.2 million to fund demonstration and planning projects.  The AHRQ's press release confirmed that the "grants [we]re part of the patient safety and medical liability initiative that President Obama announced during a September 9, 2009, address to a joint session of Congress."[1] Specifically, the AHRQ has funded seven demonstration grants for a total amount of $19.7 million and 13 planning grants for a total amount of $3.5 million.  The demonstration projects are scheduled to take three years to complete and the planning projects are scheduled to take one year to complete.  According to the AHRQ, the projects are supposed to allow States and health care systems to develop, implement and evaluate medical liability models that "(1) put patient safety first and work to reduce preventable injuries; (2) foster better communication between doctors and their patients; (3) ensure that patients are compensated in a fair and timely manner for medical injuries, while also reducing the incidence of frivolous lawsuits; and (4) reduce liability premiums."[2]

Frivolous lawsuits, the high cost of malpractice insurance and excessive damages awards are dragging down our health care system.

 

The goal of "traditional" medical malpractice reforms is not to hinder meritorious lawsuits, but rather to reduce the incidence of frivolous lawsuits, inflated awards and inflated attorneys' fees.  Generally speaking, traditional malpractice reforms seek practical solutions to combatting frivolous lawsuits, such as caps on punitive damages, caps on noneconomic damages and limits on the percentage of an award that can be taken by a plaintiff's attorney under a contingency fee agreement.  Thus, traditional reforms are necessarily aimed at dealing with the medical system as it exists and influencing the behavior of lawyers and courts by altering legal parameters--substantive and procedural.  Correspondingly, research on traditional reforms should be aimed at assessing the effects of specific legal changes on claims, lawsuits, awards and settlements, either through mathematical models, simulated jury studies or real data.

 

However, the AHRQ's description of the research being funded does not mention, much less emphasize, reforms to medical malpractice laws, as was clearly implied by the President's speech.  Indeed, it does not appear that any of the entities that have received the $23.2 million in grants have the expertise necessary to examine the effects of changes in substantive legal standards and procedural rules on the rate of malpractice claims, lawsuits, and awards.

 

President Obama's September 9, 2009 speech included a reference to "demonstration projects" considered during President George W. Bush's administration.  The day after the President's speech, Tevi Troy, who served as the Deputy Secretary of the HHS, during the Bush Administration, responded to President's Obama's statement.[3] Mr. Troy explained the nature of the demonstration projects considered during the Bush administration.  In particular, he explained the limited purpose of those projects and the fact that they would not solve the crisis created by frivolous lawsuits.  Mr. Troy's article also made it clear that "reducing the incidence of costly and ineffective medical malpractice lawsuits was a high priority of the [Bush] administration."

 

The President's speech gave the clear impression that taxpayers' monies would be spent, in significant part, on projects related to "traditional" medical malpractice reforms.  Contrary to that clear impression, it appears that none of the $23.2 million awarded has

 

gone to researching or implementing "traditional" medical malpractice reforms.  In fact, it appears that all of the research funded by the AHRQ is aimed at proving the obvious:  as the number of adverse events declines, the number of malpractice lawsuits also declines.

 

We are concerned that these developments do not fulfill the President's commitment to move forward on medical malpractice reform.  Accordingly, please respond to the following requests for information:

 

1.      Explain how the HHS' spending $23.2 million on studying "nontraditional" liability reform fulfills the President's promise that his administration would examine a "range of ideas," including the "traditional" malpractice reforms noted above and advocated by Republican Members of Congress?

 

2.      Do you agree that the projects funded by the Patient Safety and Medical Liability Reform Demonstration and Planning grants are not researching "traditional" malpractice reform, but rather are exploring "nontraditional liability reforms"?[4] If you disagree, explain the basis for your disagreement in detail.  Also, identify which projects are researching "traditional" malpractice reforms and how much from the $23.2 million in grants is being spent on studying "traditional" malpractice reforms.

 

3.      Do you agree that the AHRQ is not the most qualified agency to undertake or oversee research related to "traditional" malpractice reforms?  If you disagree, explain in detail how the AHRQ is the most qualified agency within the federal government to undertake or oversee research related to "traditional" malpractice reforms.

 

4.      How, if at all, will the results of each of the 20 demonstration and planning projects directly help to reduce the incidence of frivolous lawsuits and reduce high malpractice insurance premiums, as represented by the AHRQ?  Also, if a project will have no direct impact on reducing frivolous lawsuits and insurance premiums expressly acknowledge that fact.

 

5.      Explain in detail how the results of each of the 20 Patient Safety and Medical Liability Reform Demonstration and Planning projects will directly benefit American taxpayers.  If American taxpayers will benefit from the results of these projects, when will those benefits be seen?

 

6.      Explain in detail how the results of each of the 20 projects will directly contribute to lowering health care costs, as stated by the President?

 

7.      Describe in detail how the HHS and/or the AHRQ will utilize the information generated by each of the 20 Patient Safety and Medical Liability Reform Demonstration and Planning projects?

 

8.      Is each of the 20 Patient Safety and Medical Liability Reform Demonstration and Planning projects unique or are they similar to previous studies?  If any of the current projects are similar to previous studies, explain the HHS's justification for funding that project or projects?

 

9.      When was it decided that the Patient Safety and Medical Liability Reform Demonstration and Planning grants would fund research of "nontraditional liability reforms," as opposed to "traditional" malpractice reforms?  Who made that decision?  If it was a group decision, identify all of the individuals who participated in the group.

 

10.  Did anyone other than an employee of the federal government participate (in any manner whatsoever) in the drafting of the requests for proposals issued in connection with the Patient Safety and Medical Liability Reform Demonstration and Planning grants?  If so, identify the individual(s) and the group he or she was representing.  Also, if applicable, set forth in detail the substance and nature of the individual's participation.

 

11.  Did anyone other than an employee of the federal government participate in the selection of any of the recipients of the Patient Safety and Medical Liability Reform Demonstration and Planning grants?  If so, identify the individual(s) and the group he or she was representing.  Also, if applicable, set forth in detail the substance and nature of each individual's participation.

 

12.  Is one of goals or purposes (official or unofficial) of the Patient Safety and Medical Liability Reform Demonstration and Planning grants to produce studies that will discredit or counter "traditional" malpractice reforms?

 

13.  Is the HHS or any other agency of the federal government currently conducting, participating in or funding research, the (official or unofficial) purpose of which is to discredit or counter "traditional" malpractice reforms?  If so, set forth the details of each such project, including who will conduct the research and who will oversee it.

 

14.  In addition to the $23.2 million being spent on the demonstration and planning projects, another component of the initiative ordered by President Obama is an evaluation project.  JBA/RAND was awarded $2 million for the evaluation project.  According to the AHRQ, the $2 million has been "allocated to evaluate the overall knowledge that is gained from this initiative."[5]

 

(a)    Explain in detail the substance and goals of the evaluation project and explain why it is necessary.

 

(b)   Are salaried federal employees at the AHRQ or in another unit of the HHS capable of understanding and evaluating the results of the demonstration and planning projects?  If so, why weren't they assigned the task of conducting the evaluation project or its equivalent?  If they are not capable, explain how the HHS and the AHRQ will be able to work with any of the information generated by the projects.

 

(c)    How, if at all, will the results of the evaluation project directly benefit American taxpayers?  If American taxpayers will benefit from the results of the evaluation project, when will those benefits be seen?

 

If the HHS and/or the AHRQ possess documents relating to the subject matter of any of the foregoing questions, provide copies of those documents.

 

We ask that you provide written answers and documents by May 3, 2012.

 

Sincerely,

 

 

 

________________________       ________________________

Charles E. Grassley                       Lamar Smith

Ranking Member                         Chairman

Senate Judiciary Committee                      House Judiciary Committee

 

 

 

________________________      

Orrin G. Hatch                         

Ranking Member                        

Senate Finance Committee

 

 

[1] AHRQ Press Release, "HHS Announces Patient Safety and Medical Liability Demonstration Projects:

Funds Allocated to Develop, Implement, and Evaluate Patient Safety Approaches and Medical Liability Reform Models" (June 11, 2010) (available at http://www.ahrq.gov/news/press/pr2010/hhsliabawpr.htm).

2 Id.

3 Tevi Troy, "Med Mal Pal?," Critical Condition, National Review Online's Healthcare Blog (Sept. 10, 2009)(available at  http://www.nationalreview.com/critical-condition/48345/med-mal-pal/tevi-troy).

4 See Allen Kachalia & Michelle M. Mello, New Directions in Medical Liability Reform, 364 N. Engl. J. Med. 1564 (Apr. 2011) (available at http://www.nejm.org/doi/full/10.1056/NEJMhpr1012821) (acknowledging the definition of "traditional" medical malpractice reforms and confirming that the AHRQ's demonstration and planning projects are studying "nontraditional liability reforms.").

5 Carolyn M. Clancy, AHRQ Commentary, "Patient Safety and Medical Liability Reform: Putting the Patient First" (available at http://www.ahrq.gov/news/commentaries/comptsafty.htm). 

Bipartisan, Bicameral Effort Underway to Provide Additional

Court Options for Federal Law Enforcement Officers

 

WASHINGTON - Senators Chuck Grassley of Iowa and Chris Coons of Delaware and Representatives Dave Reichert (WA-08) and Bill Pascrell, Jr. (NJ-8) yesterday introduced bipartisan, bicameral legislation that would allow federal law enforcement officers who acted under their official duties and charged with a crime in state court an opportunity to petition to have the agent's case heard before a federal court.

 

"Federal agents are extensively trained, at taxpayer expense, to protect and serve the American public and are never off-duty. To expect them to stand by while a victim suffers violent acts in their presence is contrary to the oath they take to protect others and is a waste of taxpayer funded training," Grassley said.  "This bill will help make our communities safer and help those who are sworn to guard and serve the public."

 

"Day in and day out, federal law enforcement officers put themselves in harm's way to protect Americans," Coons said. "When I was a county executive in Delaware, I worked closely with our local law enforcement professionals and witnessed firsthand how our brave officers are trained to detect and prevent dangerous situations, whether they are on-the-clock or not. The Officer Safety Act of 2012 will ensure that 'off duty' federal officers who intercede to protect the lives of others will be held to the same standards as when they are performing their official duties. This bill will help law enforcement better protect our neighbors and families. I applaud the leadership of Senator Grassley for developing this important legislation and I will continue to advocate on behalf of our brave first responders."

 

"As a former Sheriff I know far too well that law enforcement officers are never 'off duty.' Every day, they earn our trust and often step in to save lives and protect the innocent while risking their own safety?regardless of whether they are on or off the job. We owe these brave men and women this assurance so they can continue to focus on serving the American people," Reichert said.

 

"This legislation will allow federal agents to protect Americans, whether they are on or off duty. Our federal law enforcement agents are highly trained professionals who often go above and beyond what is required of them - and put themselves in harm's way in the process. They deserve our gratitude," said Pascrell. "I am proud to help advance this bipartisan legislation on behalf of dedicated federal agents throughout the country who work to keep us safe."

 

The Officer Safety Act of 2012 is modeled after the Good Samaritan Act, but is narrower, more restrictive, and provides no liability protection.  The bill does not provide immunity to federal law enforcement officers, but simply allows for case removal to federal court where the officer will be required to defend his or her actions.  In addition, it doesn't infringe upon states' rights, as they retain the same due process rights that have existed since the early 1800's.

 

Specifically, the Officer Safety Act of 2012

·                     allows a federal law enforcement agent, who stops a violent crime while off-duty and is indicted in a state court for those actions, to petition for the state criminal prosecution against him to be removed to a federal court, and

 

·                     clarifies the "color of law" prong required in the removal process, as courts have invited Congress to clarify.

 

The bill is supported by the Federal Law Enforcement Officers Association, the Federal Bureau of Investigation Agents Association, and the National Border Patrol Council.  It is expected to be referred to the Judiciary committees in both the Senate and the House.  The bill text can be found by clicking here.

 

Here is Grassley's prepared statement for the Congressional Record upon introduction of the bill.

 

Mr. President, as a 2003 Judiciary Committee report stated, "Law enforcement officers are never 'off-duty.'"  Many are required to carry an off-duty weapon.  When they fly on personal business, they are expected to carry their weapon and check-in with the airline as a federal law enforcement agent so they can defend the pilots and passengers if something bad happens.  In fact, federal agents are specifically paid to be available twenty-four hours a day, seven days a week.  And agents can be disciplined if they are not available when called.  They are not even allowed to engage in activities on their personal time that regular citizens take for granted, like coaching their kids' sports teams, if it might interfere with their ability to respond to a crisis.

 

Federal law enforcement agents are extensively trained, at the expense of the tax-payer for the benefit of the tax-payer.  They not only train in basic academies, but they are required to participate in additional and regular training and re-certifications many times each year.  If training is missed or if standards are not up to par, the agent is disciplined or removed.  Federal law enforcement agencies take training requirements very seriously.  And the United States is known for having the best trained federal law enforcement officers in the world.

 

So what if one of these exceptionally-trained federal law enforcement agents walks into the grocery store on a Saturday and witnesses a woman being repeatedly hit by her husband; do we want him to walk past the woman?  No.  The taxpayers spend money on his training so that he can protect victims, not walk away from them.  In this situation, we all hope that he would use his training to protect the victim.  But when he steps in to protect the victim from a crime of violence occurring in his presence, he risks state criminal prosecution and damage to his career.  And that might lead him to hesitate.  This is contrary to good public policy.  If we were the victim in this scenario, every one of us would want that federal law enforcement officer to help us.

 

If a federal agent acts to protect an individual in his presence from a crime of violence, as taxpayer dollars have trained him to do, and then is indicted in State court for that act, he should have the right to defend himself within the federal court system.

 

So the Officer Safety Act amends the removal statute, found in Title 28, United States Code, Section 1442, to clarify when a federal law enforcement officer is acting under the color of his office.  This bill does not provide immunity for law enforcement agents, and it does not grant them additional authority.  It doesn't even guarantee that the case will be moved from state to federal court: the State will be heard and its position will be weighed by the judge before deciding if removal is appropriate.  It does allow a federal law enforcement officer/agent, who is indicted in a State court for actions related to his protection of a victim of a violent crime that is committed in the officer's presence, to petition for that criminal case to be removed to federal court, where the officer will be required to defend his actions.

 

Current law provides that removal is proper so long as defendants demonstrate that they are officers of the United States that acted "under color of" their office and have a "colorable federal defense".

 

In general, a federal agent acts "under color of" his office when he takes actions that are necessary and reasonable for the discharge of his federal responsibilities.  Accordingly, the prototypical example of a federal officer acting under color of his office is a federal law enforcement officer who kills someone while performing an act related to federal law enforcement and, in the subsequent state homicide prosecution, claims he was acting in self-defense and/or is entitled to official immunity.  The Supreme Court has upheld this prototypical example as appropriate for removal from state court to federal court.

 

The primary restraint on the current statute's scope is its limitation to defendants who acted under color of a federal office or, in other words, while performing official duties.  Defendants must show in their petition for removal that there is a causal nexus between the actions challenged and their federal duties.

 

The history of the removal statute explains why this is important.  The statute dates back to 1815.  It was passed in response to the New England States' opposition to the trade embargo with England during the War of 1812.  The law provided for the removal to federal court of any suit or prosecution commenced in state court against a federal customs officer or other persons enforcing federal customs laws.  Thus, federal agents did not need to fear performing their jobs because the local authorities opposed the embargo and wanted to stop them from enforcing it.

 

A few decades later, the U.S. government encountered a similar problem in South Carolina, which in 1833 declared certain federal tariff laws unenforceable within its borders.  Congress responded by authorizing the removal of any suit or prosecution commenced in a state court against an officer of the United States for the enforcement of the federal revenue laws.

 

During the Civil War and the Reconstruction era, Congress' disenchantment with state courts in the South led to new federal officer removal laws.  In the 1863 Habeas Corpus Act, Congress provided for the removal of suits or prosecutions against persons acting under federal authority for actions, or failures to act, during the Civil War.  In addition, Congress passed a removal statue similar to those of 1815 and 1833, authorizing the removal of suits or prosecutions commenced in state court against federal officers for actions, or omissions, related to the collection of federal revenue.  However, it was not until the enactment of the Judicial Code of 1948 that Congress extended the statute to cover all federal officers.

 

The courts view the history behind section 1442 and its statutory predecessors as justification for construing the statute broadly to assure the supremacy of U.S. law and protect federal operations against interference from state judicial proceedings.

 

This bill does not infringe upon State's rights, as they retain the same due process rights to be heard on the question of removal that have existed since the early 1800's.  In fact, this Congress passed a bill by unanimous consent that amended this statute, without a word about state's rights.

 

Today, federal law enforcement officers, whether or not in uniform, require protections when they take actions to assist citizens.  Civil liability protections are provided to officers under The Good Samaritan Act, codified at Title 28, United State Code, Section 2671.  This bill, the Officer Safety Act, while modeled on the Good Samaritan Act, is narrower, more restrictive, and provides no liability protection.  Rather, this bill clarifies the "color of law" prong required in the removal process, as courts have invited Congress to clarify.

 

The bill makes no change to the current standards governing when removal is permissible, and therefore leaves alone existing standards and case law.  But it provides that in three situations, the law enforcement officer who is a defendant in a State criminal prosecution will be deemed to have acted under color of his or her office: (1) when the officer protects a victim from a violent crime committed in the presence of the officer; (2) when the officer provides immediate assistance to an individual who suffered or is about to suffer imminent bodily harm; and (3) when the officer prevents the escape of an individual the officer reasonably believes committed or was about to commit, in the presence of the officer, a crime of violence that resulted in or was likely to result in serious bodily injury.  I believe that in these situations, the federal courts should always determine that the law enforcement officer acted under the color of his or her office for purposes of determining whether to grant the officer's removal petition.  But the courts remain free to determine under current law that there are other circumstances in which an officer seeking removal satisfies the color of office standard.

 

So the bill is a modest change that nevertheless provides an important layer of safety for the people who risk their lives day-in and day-out to protect us.  It will help make our communities safer and protect those who are sworn to guard and serve the American public.

 

This principle and this bill are supported by the Federal Law Enforcement Officers Association, the Federal Bureau of Investigation Agents Association, and the National Border Patrol Council.

 

I want to thank Senator Coons, a member of the Committee on the Judiciary, who co-chairs the Senate Law Enforcement Caucus, and is a co-sponsor on this bill.  He understands the need to support law enforcement officers who risk their lives every day so that we can sleep safely at night.

 

Further, I want to thank Senators Coburn and Sessions, also members of the Judiciary Committee and cosponsors.  They, too, understand this allows us to support federal agents without spending a dollar.

 

"Law enforcement officers are never 'off-duty.'"  To expect them to standby while a victim suffers violent acts in his presence is contrary to the oath they take to protect and renders their tax-funded training wasted as a citizen becomes a victim.  Please join me in protecting those who protect us.

 

-30-

"Hearing on the Special Counsel's Report on the Prosecution of Senator Ted Stevens"

Wednesday, March 28, 2012

 

Mr. Chairman, thank you for holding today's hearing on a troubling matter that warrants our attention.  In his famous speech titled The Federal Prosecutor, then-Attorney General, and later Justice Jackson said, "The prosecutor has more control over life, liberty, and reputation than any other person in America...While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst."  These are fitting words for today's hearing as we examine the conduct of Justice Department prosecutors in an effort to understand what went wrong in the prosecution of former Senator Ted Stevens.

 

The government's prosecution of Senator Stevens was arguably the highest profile case ever brought by the Justice Department's Washington, D.C.-based Public Integrity Section.  It had consequences far beyond the jury's guilty verdict and impacted the Alaska Senate election in 2008.

 

While all criminal cases should be handled with the utmost professionalism, cases of this level of importance and publicity?where elections can be swayed?should be shining examples of the best of the Justice Department.  They should have the best prosecutors and the best agents, and should be a centerpiece of the American criminal justice system.  Unfortunately, this case appears to be the opposite of the ideal.

 

According to our witness today, the prosecution of Senator Ted Stevens was "permeated by the systemic concealment of significant exculpatory evidence which would have independently corroborated [his] defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness."  These are shocking statements that call into question the conduct of those involved in this prosecution, and threatens to resonate further throughout the Justice Department.

 

Like so many times before, we owe much of our insight into the department's failures to a whistleblower.  FBI Agent Chad Joy came forward in January 2009 with allegations of misconduct in the investigation of Senator Stevens.  While there were indicators of failures to turn over exculpatory material before, it was Agent Joy's disclosures to the court that instigated the investigation.

 

According to media reports, Agent Joy is no longer with the FBI.  I hope it's not because he was run out of the FBI for blowing the whistle on this prosecution gone wrong.  He deserves our thanks for having the courage to speak up.

 

To its credit, the Justice Department ultimately moved to dismiss with prejudice the case against Senator Stevens.  To Judge Sullivan's credit, he did not ignore this whistleblower.  He held the prosecutors in contempt of court for the failures to turn over exculpatory evidence.  He then appointed an independent Special Counsel to investigate and prosecute criminal contempt proceedings, if appropriate, against the Justice Department lawyers involved in the case.

 

Mr. Schuelke's report was recently released, on March 15, and Attorney General Holder has publicly stated the report has "disturbing" findings.  I think that is an understatement.  Reading through this report is like reading though a case study in poor management.  The case was riddled with problems right from the start when the Department of Justice sought an expedited trial date.  This decision, which is not fully explained and something I want to know more about, helped put the case on a collision course with failure.

 

Why would the department ask for an expedited trial date when the review for Brady material had just started and was far from complete?  From the report details, the Brady disclosure problems appear to stem from an expedited timeline, inadequate staffing, a lack of a defined chain of command for making decisions, and poor supervision.

 

Two major disclosure problems were not revealed until after the conclusion of the trial - exculpatory information from one of the prosecution's witnesses and the withholding of impeachment material of the prosecution's star witness, Bill Allen.  The impeachment evidence is particularly troubling because it involves the witness's effort to cover up a relationship with a 15-year-old prostitute.  It also raises questions because the Justice Department later advised state and local prosecutors not to pursue child sexual exploitation charges against Allen, and then dropped any federal charges.  This has led to a second investigation at the Department's Office of Professional responsibility as to why prosecution was declined.

 

In addition to the failures to disclose exculpatory material, the case also suffered from a series of questionable decisions from the management at Main Justice.  For example, prosecutors claim that conflicting involvement between the Public Integrity Section and leadership of the Criminal Division created an unclear chain of command.  They also claim that conflicts in personalities developed as a result of staffing decisions, decided by senior leadership in D.C.

 

Despite these supervisory failures, there is no recommendation in the report related to the management of the case.  I am particularly interested in this aspect because management failures such as this are sanctionable conduct by the Office of Professional Responsibility.

 

It will be interesting to see how this report compares to the final product issued by the Office of Professional Responsibility.  The report should include some review of the management of this case in addition to the disclosure failures.  The Attorney General should ensure that a full, unredacted version of that Office of Professional Responsibility report is provided to Congress.

 

At an oversight hearing in November, 2011, when Senator Hatch asked for a copy of the final Office of Professional Responsibility report, Attorney General Holder stated, "That is up to the people at OPR...what I have indicated was that I want to share as much of that as we possibly can, given the very public nature of that matter, and the very public decision that I made to dismiss the case."

 

Despite the Attorney General's purported desire to make this information public, his statement that it is "up to the people at OPR", leads me to believe we aren't likely to ever see that report.

 

The Justice Department has routinely blocked the release of Office of Professional Responsibility investigations, citing privacy laws and employee rights of the attorneys and agents guilty of misconduct.  The Attorney General ultimately oversees the Office of Professional Responsibility and if he truly wants that information made public, he should order it released upon the conclusion of the investigation.

 

In the event he doesn't, the Privacy Act has an exemption for Congress, and Mr. Chairman, even under the department's tortured reading of the plain text of that statute, you should be able to obtain that Office of Professional Responsibility report in an unredacted form.  I will be happy to work with you on this issue.

 

A lot went wrong in the prosecution of Senator Stevens, and despite this strongly worded report we are discussing here today, it seems nobody has been held accountable at the Justice Department.  A criminal defendant's constitutional right to a fair trial, regardless of who he is, is fundamental to the American criminal justice system.  Yet, when those rights were intentionally violated by attorneys at the Justice Department, it seems no one was held accountable.  I find this fact even more disturbing than the findings in this report and we have an obligation to hold the Justice Department accountable for what went wrong here and prevent it from happening again in the future.

 

Thank you.