At issue is evidence that shows the Justice Department declining to intervene in a False Claims Act case, over the concerns of career department attorneys, in exchange for St. Paul dropping the case before the Supreme Court that could have had negative repercussions against a policy favored by the Justice Department.

In a letter to Holder, Grassley wrote that a recent transcribed interview with former Associate Attorney General Tom Perelli made clear that Assistant Attorney General Tony West was involved in the quid pro quo deal.  West has been nominated to be the Associate Attorney General.

In light of West's nomination, which is pending before the Senate Judiciary Committee, Grassley requested that the 1,202 documents withheld by the department regarding the quid pro quo matter be produced to the committee as part of the background review process for his nomination.

Grassley said that any suggestion that he, as a Ranking Member of a committee, does not have access to the documents in question has no basis in law or policy.

Grassley wrote, "I do not abandon my constitutional responsibilities simply because I am in the minority; rather, I remain bound to provide oversight to those executing the law.  A committee chairman may set the agenda for a committee, but a chairman does not control activities of the minority in fulfilling their obligations under the Constitution."

In addition, Grassley wrote that court cases support the role of Congress in conducting oversight.  In Murphy v. Dep't of the Army, the District of Columbia Circuit held that "[a]ll Members [of Congress] have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information."  That court also found that restricting information-gathering powers only to committee chairmen is an "intrusion into the legislative sphere" because "[e]ach [Member] participates in the law-making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as well enable him to carry out the responsibilities of a legislator."  The Second Circuit agreed with this principle when it held in Devine v. United States that the Privacy Act does not prevent committee members other than the chairman from receiving information that might otherwise be protected from disclosure by the statute.

Grassley relayed in his letter that it was unfortunate that West's nomination could be delayed, but it was necessary to appropriately evaluate his performance in his current role as the Judiciary Committee reviews his nomination for Associate Attorney General.

Ultimately, it is up to the Justice Department to produce these documents in order for West's nomination to proceed.

Here is a copy of the text of Grassley's letter to Holder.  A signed copy can be found here.

November 26, 2012

Via Electronic Transmission

The Honorable Eric H. Holder, Jr.

Attorney General

U.S. Department of Justice

950 Pennsylvania Ave., N.W.

Washington, DC 20530

Dear Attorney General Holder:

On September 24, 2012, and October 4, 2012, I joined Chairman Smith of the House Committee on the Judiciary, Chairman Issa of the House Committee on Oversight and Government Reform, and Chairman McHenry of the House Subcommittee on TARP, Financial Services And Bailouts of Public and Private Programs in writing regarding the production of documents and access to witnesses from the Department of Justice (Department).  We requested the documents and witnesses as part of our investigation into the quid pro quo deal where the Department agreed to drop two False Claims Act cases against the City of St. Paul, Minnesota in exchange for the City dropping its pending appeal before the Supreme Court in Magner v. Gallagher.[1] On October 11, 2012, the Department responded to our letters stating that 1,268 pages of documents were made available to the House Committees, 1,202 of which were only made available for review in camera at the Department.  Only 66 pages were actually produced to the House Committees.[2] The October 11 letter also declined to make Department officials available for transcribed interviews.

My staff, along with the staff of the House committees, is currently investigating the details of this quid pro quo.  To date, the Department has failed to allow my staff to review the 1,202 documents, even in camera, despite my oversight responsibilities on the Senate Committee on the Judiciary (Committee) and the serious questions this arrangement raises.  I am disappointed that the Department has failed to provide my staff the same access that it has provided the staff of the House Committees.

Most recently, through a transcribed interview with former Associate Attorney General Thomas Perrelli that occurred on November 19, it has become clear that Assistant Attorney General Tony West was involved in this arrangement in his capacity as head of the Department's Civil Division.  Given that Mr. West's nomination for Associate Attorney General is currently pending before the Committee, it is important that the Committee understand his involvement in these matters.  Therefore, I write today requesting that the 1,202 documents withheld by the Department regarding this matter be produced to the Senate Judiciary Committee as part of the background review process for his nomination.

It is unfortunate that Mr. West's nomination could be delayed by this request, but it is necessary because you have denied my staff access to documents essential to ensure adequate and appropriate Congressional oversight of the Executive Branch as part of the executive nominations process.  Specifically, I have been informed that the Department refused my staff access to the documents on Monday, October 15, 2012, because there was not a request from the Chairman of the Committee.  However, no such request is required by any law, rule, regulation, or judicial precedent.

The Department's decision to deny the opportunity for my staff to review these documents is misplaced and threatens to delay the review of Mr. West's nomination.  This investigation was undertaken in conjunction and cooperation with Chairman Smith, Chairman Issa, and Chairman McHenry.  Therefore, the Department's general policy that investigations be conducted by and through the authority of the chairman of a committee with jurisdiction is fully satisfied.

The Department's position seems to be that I, as a ranking member of a Committee, must receive permission from the chairman in order to allow access to the documents in question.  Yet, any suggestion to this effect is without a basis in law or policy.  Senate committees are organized so as to give minority parties significant resources to conduct our own investigations and further our own priorities.  I do not abandon my constitutional responsibilities simply because I am in the minority; rather, I remain bound to provide oversight to those executing the law.  A committee chairman may set the agenda for a committee, but a chairman does not control activities of the minority in fulfilling their obligations under the Constitution.

Indeed, the Department's current insistence that I seek the Chairman's permission is tantamount to executive interference in internal Legislative Branch affairs.  Both chambers of Congress have a long-established practice of partnerships between Members and Chairmen of other committees with appropriate jurisdiction to permit us to exercise our constitutional power of inquiry.  By preventing my staff from viewing these documents, the Department is interfering with these internal rules and norms.  As a result, the Department is intruding into how Congress organizes itself and attempting to prevent Members from working cooperatively to advance our legitimate interests.

Moreover, the principle that Congress controls its internal affairs in these matters has been strongly supported by the judiciary, most notably in Murphy v. Dep't of the Army[3] and Devine v. United States.[4] In Murphy, the District of Columbia Circuit held that "[a]ll Members [of Congress] have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information."[5] That court also found that restricting information-gathering powers only to committee chairmen is an "intrusion into the legislative sphere" because "[e]ach [Member] participates in the law-making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as well enable him to carry out the responsibilities of a legislator."[6] The Second Circuit agreed with this principle when it held in Devine that the Privacy Act does not prevent committee members other than the chairman from receiving information that might otherwise be protected from disclosure by the statute.[7]

Accordingly, I ask that the Department provide the 1,202 responsive documents outlined in the October 11 letter no later than December 4, 2012.  Without these documents, it will be impossible to appropriately evaluate Mr. West's performance in his current role, as the Committee reviews his nomination for Associate Attorney General.

Sincerely,

Charles E. Grassley

Ranking Member

cc:        The Hon. Patrick J. Leahy, Chairman, Committee on the Judiciary, United States Senate

The Hon. Darrell Issa, Chairman, Committee on Oversight and Government, United States House of Representatives

The Hon. Lamar Smith, Chairman, Committee on the Judiciary, United States House of Representatives

The Hon. Patrick McHenry, Chairman, Subcommittee on TARP, Financial Services and Bailouts of Public and Private Programs, Committee on Oversight and Government Reform, United States House of Representatives

The Hon. Elijah Cummings, Ranking Member, Committee on Oversight and Government Reform, United States House of Representatives

The Hon. John Conyers, Jr., Ranking Member, Committee on the Judiciary, United States House of Representatives

The Hon. Mike Quigley, Ranking Member, Subcommittee on TARP, Financial Services and Bailouts of Public and Private Programs, Committee on Oversight and Government Reform, United States House of Representatives

[1] See Letter from Congressman Smith, Congressman Issa, Congressman McHenry, and Senator Grassley to Attorney General Eric H. Holder, Jr., Attorney General, U.S. Dep't of Justice (Sept. 24, 2012) (on file with author) (requesting access to documents and witnesses); Letter from Congressman Smith, Congressman Issa, Congressman McHenry, and Senator Grassley to Attorney General Eric H. Holder, Jr., Attorney General, U.S. Dep't of Justice (Oct. 4, 2012) (on file with author) (same).

2 Letter from Judith C. Appelbaum, Acting Assistant Attorney General, U.S. Dep't of Justice to Congressman Smith, Congressman Issa, Congressman McHenry, and Senator Grassley (Oct. 11, 2012).

3 613 F.2d 1151 (D.C. Cir. 1979).

4 202 F.3d 547 (2d Cir. 2000).

5 613 F.2d at 1157.

6 Id.

7 202 F.3d at 551.

CHICAGO - November 21, 2012. Governor Pat Quinn issued the following statement regarding Congressman Jesse Jackson Jr.'s resignation:

"Today I was informed of Congressman Jesse Jackson Jr.'s resignation as congressman for the 2nd District of the state of Illinois.

"Within five days, I will set forth a schedule for a special election to allow the people of the 2nd District to choose a new member of Congress to represent them in Washington.

"This election will be carried out in a manner that is fair to the electorate and as economical as possible for taxpayers.

"We know that Congressman Jackson is confronting health challenges, and our thoughts and prayers are with him and his family during this difficult time."

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As the United States prepares to inaugurate Barack Obama for a second term in office, many Republicans are still struggling to understand Gov. Mitt Romney's defeat.

Exit polls on Nov. 6, however, indicated that voters blamed former President George W. Bush for the country's economic troubles, and most believe that Obama's policies have helped the recovery.

Bush was such a poor president that conservatives no longer bother to defend the previous commander in chief, says New York attorney and political humorist Steven Sarshik.

"It has become conventional wisdom that Bush messed up so badly that pundits on both sides tend to gloss over the magnitude of his appalling legacy," says Sarshik, author of the satirical novel, "The Apology," (www.sarshik.com), a fantastical tale that begins on the day of Obama's second inauguration, when Bush gets himself into a jam in Europe.

"Conservatives won't go anywhere near Bush's eight years, except to tell liberals who blame him for the difficult recovery to stop living in the past. I mean ... the guy wasn't even invited to the Republican National Convention in Tampa," Sarshik says. "The Democrats mentioned him more at their convention."

Unfortunately, in political debate, reviewing Bush's record has become a non-starter, "but that doesn't mean his tenure didn't happen," Sarshik says.

He reviews some of the Bush policy flubs that directly contributed to Romney's defeat:

• A party of extremists: In order to compete with this season's Republican primary candidates and satisfy the hordes of Tea Party conservatives, "moderate Mitt" had to take a backseat in favor of pedal-to-the-metal, far-right Romney. The party took a dramatic shift to the far right as a result of Bush's expensive, fiscally irresponsible policies. After the primaries, "flip-flopper" didn't seem strong enough to describe Romney's shifting stances; his proposed policies became "Etch-a-Sketch," almost to the point of being Zen-like, Sarshik says. "Often, his answers to questions became exceedingly abstract, and I think the shifting discouraged independent and undecided voters."

• A clear and simple foreign policy narrative: A recent Vanity Fair exposé shows that Bush was given ample warning of the attacks on American soil before Sept. 11, 2001. While the 43rd president followed up with what still seems to many a non-sequitur war in Iraq, Obama oversaw the end of that protracted campaign and killed the man responsible for 9-11. Romney's foreign policy appeared to be a continuation of Bush's costly approach.

• FEMA and the "heck of a job, Brownie" gaffe: "Frankenstorm" Sandy hit the Northeast days before the Nov. 6 election, which could have devastated Obama's campaign had he handled it poorly. Instead, his cooperation with New Jersey Rep. Gov. Chris Christie was the perfect example of how to handle local and state-level emergencies. During debates, in an attempt to back up small-government rhetoric and explain away Bush's poor handling of Hurricane Katrina disaster relief, Romney said the Federal Emergency Management Agency should be dismantled in favor of state control, and "even better," be privatized.

About Steven Sarshik

Steven Sarshik has been a New York City trial lawyer for more than 30 years, handling all sorts of politically charged cases - much like the fictitious one he paints in "The Apology." He is also the author of "Wrongful Death," a novel about an NYC police shooting.

(DES MOINES) - Gov. Terry E. Branstad today released the following statement regarding last night's election results:

"Iowa voters once again chose divided government, and their message was unmistakable: They want us to work together in moving this state forward. Just as President Obama and Gov. Romney pledged to work together nationally, I see great opportunities for cooperation here in Iowa. I look forward to working with the Senate and House to improve our schools, make our tax climate more competitive and to continue balancing the state budget. We must continue to make state government more efficient, transparent and responsive to Iowans.

"The election is behind us, and the time to work together lies in front of us. I will work with both parties to ensure we don't squander this great responsibility Iowans have placed upon us."

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