FOR IMMEDIATE RELEASE AG
THURSDAY, FEBRUARY 2, 2012 (202) 514-2007
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TESTIMONY AS PREPARED FOR DELIVERY BY ATTORNEY GENERAL ERIC HOLDER BEFORE THE HOUSE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
WASHINGTON, D.C.
Chairman Issa, Ranking Member Cummings, and members of the Committee, I am here today because I understand and appreciate the importance of congressional oversight, and because I am committed to ensuring the highest standards of integrity and professionalism at the Department of Justice. That’s precisely what I pledged to do – exactly three years ago tomorrow – when I was sworn in as Attorney General. And it is exactly what I have done.
My dedication to the Department’s mission is shared by an extraordinary group of colleagues: the 117,000 employees who – each day, in offices all around the world – work tirelessly to protect the American people from a range of urgent and unprecedented threats – from global terrorism and violent crime, to financial fraud, human trafficking, civil rights abuses, and more. Over the last three years, we’ve made a number of significant improvements, including policy and personnel changes that address many of the concerns that are the subject of this hearing. Today, I’d like to discuss some of these improvements in specific terms – and outline the steps that we have taken to ensure that the flawed tactics used in Operation Fast and Furious – and in earlier operations under the prior Administration – are never again used.
If some of my comments today sound familiar, it is because this marks the sixth time I have answered questions about this operation before a congressional committee in the last year. Let me start, however, with something that cannot be said often enough: allowing guns to “walk” – whether in this Administration or in the prior one – is wholly unacceptable. This tactic of not interdicting weapons, despite having the ability and legal authority to do so, appears to have been adopted in a misguided effort to stem the alarming number of illegal firearms that are trafficked each year from the United States to Mexico. To be sure, stopping this dangerous flow of weapons is a laudable – and critical – goal. But attempting to achieve it by using such inappropriate tactics is neither acceptable nor excusable.
That’s why, when I learned early last year about the allegations raised by ATF agents involved with Fast and Furious, I took action. In addition to requesting an Inspector General investigation last February, I ordered that a directive be sent prohibiting the use of such tactics. There also have been important personnel changes in the Department. And vital reforms reflecting the lessons we have learned from Operation Fast and Furious have been implemented.
Today, I reaffirm my commitment to ensuring that these flawed tactics are never used again. And I reiterate my willingness to work with Congress to address the public safety and national security crisis along our southwest border that has taken far too many lives.
Congress has sought answers to questions about law enforcement Operations Wide Receiver and Fast and Furious. And my colleagues and I at the Department of Justice have worked diligently to provide those answers. In addition to my frequent testimony before Congress, I have answered – and am continuing to answer – questions that have been submitted for the record during previous hearings. The Department also has responded to more than three dozen letters from members of Congress and facilitated numerous witness interviews. We also have submitted or made available for review more than 6,400 pages of documents to congressional investigators. This has been a significant undertaking for Department employees – and our efforts in this regard remain ongoing.
We also have provided Congress with virtually unprecedented access to internal deliberative documents to show how inaccurate information was initially conveyed in a letter sent to Senator Grassley on February 4, 2011. These documents show that Department officials relied on information provided by supervisors from the relevant components in the best position to know the facts. We now know that some of the information they provided was inaccurate. We also understand that, in subsequent interviews with congressional investigators, these supervisors have stated that they did not know at the time that the information they provided was inaccurate.
In producing internal communications regarding the drafting of the February 4th letter, the Department made a rare, limited exception to longstanding Executive Branch policy. This decision reflected unusual circumstances and allowed us to respond, in the most comprehensive way possible, to congressional concerns where the Department itself concluded that information in the letter was inaccurate. The documents we produced have answered the question of how that letter came to be drafted and put to rest questions about any intentional effort to mislead. All of our communications to Congress should be accurate and that is the standard I expect the Department to meet. At my direction, the Deputy Attorney General has instituted new procedures to increase safeguards in this area.
As I testified in a previous hearing, the Department does not intend to produce additional deliberative materials about the response to congressional oversight or media requests that post-date the commencement of congressional review. This decision is consistent with the longstanding approach taken by the Department, under both Democratic and Republican administrations, and reflects concerns for the constitutionally-protected separation of powers.
Prior administrations have recognized that robust internal communications would be chilled, and the Executive Branch’s ability to respond to oversight requests thereby impeded, if our internal communications concerning our responses to congressional oversight were disclosed to Congress. For both Branches, this would be an undesirable outcome. The appropriate functioning of the separation of powers requires that Executive Branch officials have the ability to communicate confidentially as they discuss how to respond to inquiries from Congress.
I want to note that the separation of powers concerns are particularly acute here, because the Committee has sought information about open criminal investigations and prosecutions. This has required Department officials to confer about how to accommodate congressional oversight interests while also ensuring that critical ongoing law enforcement decision-making is not compromised, and is free from even the appearance of political influence. Such candid internal deliberations are necessary to preserve the independence, integrity, and effectiveness of the Department’s law enforcement activities and would be chilled by disclosure to Congress of such materials. Just as we have worked to accommodate the Committee’s legitimate oversight needs, I trust that the Committee will equally recognize the Executive Branch’s constitutional interests and will work with us to avoid further conflict on this matter.
I know the Committee also is keenly interested in policy changes that the Department has undertaken in the wake of Operation Fast and Furious. The ATF, which is now under the leadership of Acting Director Todd Jones, has implemented a number of key reforms and critical oversight procedures to prevent such a flawed operation from occurring again. These reforms include: clarifying current firearms transfer policies to more effectively prevent the criminal acquisition, trafficking, or misuse of firearms; implementing a new Monitored Case Program designed to facilitate closer coordination on sensitive investigations between ATF field and headquarters personnel; revising policies regarding the use of confidential informants to, among other things, prevent using Federal Firearms Licensees as paid informants except in limited circumstances; and reinforcing the importance of deconfliction and information sharing so law enforcement agencies can investigate subjects more effectively.
I’m also pleased to report that, under the leadership of the Department’s Criminal Division, we’ve bolstered crime-fighting capacity on both sides of the U.S./Mexico border. We’ve done this by creating new cartel-targeting prosecutorial units; developing new procedures for using evidence gathered in Mexico to prosecute gun traffickers in U.S. courts; training thousands of Mexican prosecutors and investigators; extraditing more than 300 defendants wanted by U.S. law enforcement; successfully advocating for enhanced sentencing guidelines for convicted traffickers and straw purchasers; and pursuing coordinated, multi-district investigations of gun-trafficking rings.
This is an important start, but we have more to do. And no one knows this better than the members of our nation’s law enforcement community – including the ATF agents who testified before this Committee last summer. Not only did these agents bring the inappropriate and misguided tactics of Operation Fast and Furious to light, they also sounded the alarm for more effective laws to combat gun trafficking and improve public safety.
These agents explained that ATF’s ability to stem the flow of guns from the United States into Mexico suffers from a lack of effective enforcement tools. Unfortunately, in 2011, a majority of House Members – including all members of the majority on this Committee – voted to keep law enforcement in the dark when individuals purchase multiple semi-automatic rifles, shotguns, and long guns – like AK-47s – in gun shops in four southwest-border states.
In this new year, I hope we can work together to provide law enforcement agents with the tools they desperately need – and have requested – to protect our citizens and ensure their own safety. Indeed, incidents of violence against law enforcement officers are approaching the highest levels we’ve seen in nearly two decades, even though violent crime is down overall. Last year, a total of 177 federal, state, and local officers lost their lives in the line of duty – a 16 percent increase over 2010. More than 70 of these deaths involved firearms – 20 percent more than the previous year. And, since the beginning of this year, an additional 14 officers have been killed – half of them in gun-related incidents.
That is unacceptable. The Justice Department is committed to turning back this rising tide, and to protecting those who serve on the front lines. We’ve designed and implemented a comprehensive new training initiative to provide law enforcement leaders with the information, analysis, and cutting-edge tools they need to respond to a range of threats – including ambush-style assaults. We’ve developed and distributed 8,000 Officer Safety Toolkits, and have partnered with public safety professionals at every level to make sure our officers have the communications platforms necessary to share information more quickly – and to more effectively identify and combat threats. And we’ve built a robust network of relationships – between state, local, and tribal authorities; key federal partners; private sector stakeholders; and Cabinet-level agencies – to explore new strategies, invest in critical research, and ensure that this vital work remains a top priority. Let me be clear: nothing is more important than ensuring the safety of the brave law enforcement professionals who put their lives at risk for us each and every day.
But we can’t make the progress we need – and that our law enforcement partners deserve – without your assistance and your leadership. As I have said before, I am determined to ensure that our shared concerns about these flawed law enforcement operations lead to more than worn-out Washington “gotcha” games and cynical finger pointing. The Department of Justice stands ready to work with you – not only to correct the mistakes of the past, but also to strengthen our law enforcement capacity in the future.
I look forward to discussing this, and I would be pleased to answer your questions.
Prepared Floor Statement of Senator Chuck Grassley
Ranking Member of the Senate Judiciary Committee
The Erosion of Checks and Balances
Monday, January 30, 2011
One week ago today, I addressed the Senate on President Obama’s decision to bypass the Senate and the Constitution by making four “recess” appointments at a time when the President’s recess appointment power did not apply. I explained in detail why the legal memo released by the Obama Administration attempting to justify President Obama’s actions did not hold legal water. Last Thursday, I laid out the case that this is not an isolated incident or a technical legal squabble. Rather, the President’s recent actions are part of a pattern of disregard for the constitutional system of checks and balances. Today I would like to address why such criticisms are justified and why they are necessary.
First, is it legitimate for a U.S. Senator to criticize a legal opinion issued by the Office of Legal Counsel and the Senate confirmed head of that office? I have no doubt that senators may criticize such opinions and, when the facts warrant, ask whether that office and its head are exercising the independence that is required for the Constitution to be upheld. Some in the media apparently disagree. They say that it is wrong for a senator to ever criticize a Senate confirmed official’s independence and judgment. They say that all a senator can do is criticize the official’s substantive arguments. Nonsense. When the media makes these claims, it merely seeks to divert attention from the weakness of the opinion’s actual conclusions and reasoning.
In my statement last week, I laid out my disagreements with the content of the Office of Legal Counsel opinion. Of course, senators and administration officials can reach different conclusions on the law. Each can have a reasonable point of view. But that is not the case here.
If the Office of Legal Counsel is to be the “constitutional conscience of the administration” that some in the media characterize it to be, it must exercise a certain level of independence. As I mentioned in my statement, when a President who takes an expansive view of his power asks Justice Department officials who owe their job to him whether he has the constitutional or legal authority to take action, there is always the chance that pressure will overtake their responsibilities to provide their best legal judgment. That is why at Ms. Seitz confirmation hearing and in follow up communications, we took such painstaking effort to give her the opportunity to state on the record her commitment to providing independent legal advice. To make sure that she would place loyalty to the law and the Constitution above her loyalty to the President.
Ms. Seitz promised to act independently. She promised not to stand idly by if she thought the Constitution was being violated.
The only way to tell whether the office has given independent advice – the only way to tell whether pressure has been resisted – is to review the arguments and reasoning that OLC provides. The media cannot address whether criticism of the head of that office is independent and has used good judgment without such a review. It is not enough that the media might agree with her conclusion.
In this case, the analysis in the Office of Legal Counsel opinion was so poor as to raise legitimate questions concerning judgment and independence. The Office of Legal Counsel is supposed to give the President objective legal advice before he acts. It is not supposed to provide a weakly thought out rationalization for a presidential decision to act that has already been made. Here, the arguments in the opinion are so weak that a fair-minded person can question the independence and judgment of the opinion’s author.
For instance, the opinion is internally inconsistent. It correctly recognizes that a president’s ability to make recess appointments turns on the capacity of the Senate to conduct business. But in determining whether the pro forma sessions constitute a recess, the opinion does not consider at all the capacity of the Senate to conduct business and on what it could do. Rather, it relies on what individual senators said. And it ignores not only what theoretically the capacity the Senate had to act, but even its actual actions.
Similarly, the established meaning of “recess” is the same each time it appears in the Constitution. Giving the term the same meaning means that the President can make recess appointments, but that this is a limited power. The Office of Legal Counsel opinion, contrary to clearly established precedent, inconsistently defines the term “recess” differently when it is used in different parts of the Constitution. The only thing consistent in the opinion is that it interprets “recess” each time in a way that expands the power of the President to make recess appointments, and in such a way as to leave open the question whether that power is limited in any meaningful way.
Former federal circuit judge Michael McConnell, himself a former Justice Department lawyer who has defended presidential power, found the arguments in the Office of Legal Counsel opinion to be so “implausible” that “[i]t is difficult to escape the conclusion that OLC is simply fashioning rules to reach the outcome it wishes.” Since the outcome the Office of Legal Counsel wishes is to expand presidential power contrary to the text of the Constitution and also many decades of historical practice, it is quite fair to question the independence, judgment, and adherence to statements made during the confirmation process by the head of that office.
The media, again focused more on personalities than on substance, will say that the Bush Administration reached a similar conclusion, so how could Ms. Seitz be criticized? First, President Bush did not make recess appointments when the Senate was in pro forma session. Second, President Bush did not even claim that he could make such recess appointments, while declining to do so. Third, his Office of Legal Counsel did not issue any opinion that would be binding on future Justice Department advice.
Unlike the public actions of the Senate confirmed head of OLC, a lower level official in the Bush Administration apparently wrote a secret memorandum to the file on this subject. The existence of such a memorandum was not known until the Office of Legal Counsel opinion referred to it and sought to rely on it. It is not possible to evaluate the reasoning of that memorandum because the Department of Justice has not agreed to release it despite my request that it do so.
If the Office of Legal Counsel is to exercise the independent judgment that is necessary for it to properly perform its functions, it cannot rely on secret memos from lower level officials. That approach creates incentives for the Office of Legal Counsel heads to avoid accountability. An incentive is created for the preparation of secret memoranda that make outlandish claims of presidential power. No one knows of the memo, so its arguments do not face the transparency of public scrutiny. The President and the Office of Legal Counsel take no responsibility for its conclusions.
Then the Office of Legal Counsel later issues a public opinion on the subject. To bolster very weak arguments, it cites the earlier memo. It avoids transparency as well, by keeping the memorandum secret, so no one can see that the opinion’s weak arguments may be supported by only other weak arguments. And it avoids accountability by suggesting that this question was already decided, by an earlier Office of Legal Counsel. Instantly, the number of administrations that support expanded presidential power goes from zero to two, neither one of which is said to be responsible for that expansion. That bootstrapping can never lead to a reasoned, objective analysis of presidential power. It cannot produce the independent Office of Legal Counsel that Ms. Seitz promised the Senate that she would provide.
The media has also made the strange argument that Ms. Seitz’s opinion must be professional and her judgment and independence cannot be questioned because of her high professional reputation. This is backward. The legitimacy of the arguments contained in a legal opinion is not established by the reputation of the person who wrote them. Reputations are not static. They are established by the quality of the professional work, not the other way around.
In the past, a Democratic prominent senator called for a judge to resign because of his legal work as Office of Legal Counsel head. The Washington Post in an earlier editorial criticized the opinions of other Bush Administration OLC lawyers as displaying “the logic of criminal regimes” and “bringing shame to American democracy.” If the Post truly believes that criticizing Office of Legal Counsel lawyers beyond the pale, they should retract their earlier opinion and condemn the far harsher rhetoric that was hurled against Bush Office of Legal Counsel lawyers.
Now I would like to explain why my criticisms were not just legitimate, but necessary. Last Thursday, I laid out in great detail a long series of abuses of executive authority, and usurpations of legislative authority, by President Obama and his Administration. In fact, he’s made his willingness to bypass Congress a campaign issue with slogans like “We can’t wait for Congress” splashed across the White House website. President Obama has made the decision to run for re-election not on his record, for obvious reasons, but against Congress. In doing so, he’s daring Congress to defend its role as the representative of Americans from each of the 50 states in the face of his unilateral agenda.
Some have suggested that this is a clever political trap laid by President Obama-that if Congress resists the President’s power grabs, it will validate his slogans and play into his electoral strategy. That may or may not be true. However, the stakes are greater than the next presidential election, and the implications of the President’s actions will be felt well beyond any short term political gain.
The framers of the U.S. Constitution foresaw the temptation by one branch of government to try to usurp the powers of others. In Federalist 51, James Madison explained how the Constitution was designed to prevent power grabs through an ingenious system of checks and balances. He wrote-
“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.”
Of course, this assumes a desire on the part of each branch to guard its constitutionally granted powers. If some members of Congress are not willing to resist an encroachment because they place party loyalty above their constitutional responsibilities, or if members are reluctant to push back for fear of political consequences, then the system of checks and balances will not work as intended. All members of Congress swore an oath to support and defend the Constitution of the United States. That is our first obligation.
I would like to be clear that this is not an argument about constitutional semantics, but one of fundamental principle. As Madison explains in Federalist 51, the “separate and distinct exercise of the different powers of government” is “essential to the preservation of liberty.” This also goes beyond an argument about the ends to which President Obama has used the new powers he has claimed. His agenda is controversial to be sure, or he would not have had to bypass Congress. Still, even those who support this President’s policies should not be so quick to look the other way. Once the walls separating the powers allotted to each branch of government are eroded, they will not easily be rebuilt.
The most eloquent expression of the philosophy on which our nation was founded is in the Declaration of Independence. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” Based on these fundamental principles, the Constitution laid out a form of government designed to protect individual rights by resisting the concentration of power. This can be frustrating to those who would like a more activist government. Still, these features of our Constitution perform an important role in preventing one faction of Americans from dominating another.
I am sure that President Obama is convinced that his agenda is what’s best for the country and that the ends justify the means in pursing that agenda. Naturally, he doesn’t see any danger in concentrating power in the Presidency, because he believes he will use that power wisely. Moreover, he has gone out of his way to identify himself with the school of thought that the constitutional separation of powers is an outdated barrier to change.
Last month, President Obama gave a speech in Kansas in which he sought to link his agenda to Teddy Roosevelt’s famous “New Nationalism” speech at the same place in 1910. The original speech marked the beginning of Roosevelt’s break with many of his past policies and with the incumbent Republican president, William Howard Taft. Roosevelt then went on to challenge Taft in the 1912 election on the Progressive Party ticket.
In the 1910 speech, which President Obama paid tribute to, Roosevelt described his New Nationalism as “…impatient of the impotence which springs from overdivision of governmental powers.” He explained that his philosophy, “…regards the executive power as the steward of the public welfare.” The progressive view of the separation of powers was described at length in Woodrow Wilson’s Constitutional Government in which he writes, “The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and allow to no single part of organ of it a dominating force; but no government can be successfully conducted upon so mechanical a theory. Leadership and control must be lodged somewhere…” Of course, he determines that President is where this “leadership and control” should be lodged.
This philosophy seeks to fundamentally transform the United States from a nation founded on the principle that protecting the unalienable natural rights of each citizen is the paramount goal of government, to one that empowers an enlightened elite to take whatever actions they deem necessary to correct perceived wrongs in society. This may start out with good intentions. But, there is no guarantee that, once our constitutional protections are gone, future leaders will always act in the most enlightened way. In fact, the single-minded pursuit of a better society at the expense of individual rights has led to some of history’s worst tyrannies.
Moreover, not only is a concentration of power in the Executive Branch contrary to the founding principles of our nation, it is foreign to the realities of American civic life. With a country as large and diverse as ours, no one individual can claim to speak on behalf of all Americans. Our constitutional system, based on federalism, separation of powers, and checks and balances, helps ensure that each American has the opportunity to live their life as they see fit. I return to the words of James Madison, “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.” The voices of all Americans deserve to be heard through their elected representatives in Congress. That is what is at stake here. Those of us who were elected to represent the people of our state should do just that or we don’t deserve to be here.
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REMARKS AS PREPARED FOR DELIVERY BY ATTORNEY GENERAL ERIC HOLDER AT THE MEMORIAL TRIBUTE TO JOHN C. KEENEY
FOR IMMEDIATE RELEASE
TUESDAY, JANUARY 24, 2012
WASHINGTON, D.C.
Thank you, David [Margolis]. It is an honor to stand with you today – and a privilege to join with so many of Jack Keeney’s family members, friends, and former colleagues – as we pay tribute to the remarkable life – and the enduring legacy – of a truly exceptional public servant.
I’d like to thank each of our distinguished speakers for the recollections they’ve shared with us today – as well as those who contributed to that moving video, and who helped to organize this event. And I especially want to thank and recognize the members of the Keeney family who are here this afternoon: Jack, Kathy, and their daughters, Katherine and Jackie; Gina and Terry, and their daughter, Anne; Kathy and David; Jeanmarie; Joan; and Mr. Keeney’s cousin, Dan [Kane].
You are, and always will be, a valued part of the Justice Department family, and we’re honored to have you all with us.
Here, in the Department that Mr. Kenney loved so dearly and served so well, it is clear – in the children and grandchildren who were the pride and joy of his life; and in those who worked alongside him and benefited from his guidance and expertise – that, although he is no longer with us, John C. Keeney still has the power to bring people together and to inspire the best in each of us.
Over the course of nearly seven decades – since the day he left college to join the Army Air Corps in 1943 – Mr. Keeney dedicated himself to the service of others, and to enriching and strengthening this country. As we’ve heard so many times today, he lived his life as a man of quiet passion – for his family; for the law; and, of course, for Notre Dame football.
He was well known for his goodness and kindness. He was widely admired for his integrity and many talents. And he was counted on – by generations of Department lawyers and leaders – because of his sound judgment, his thoughtful advice, and his willingness to speak difficult truths, to help solve complex problems, and to confront the most demanding – and even dangerous – challenges.
Jack Keeney faced his first great test during World War II, when – in the skies over Nazi Germany, his B-17 bomber was shot down. He found himself very much alone – 11,000 feet above enemy territory – with a parachute that wouldn’t open. Fortunately, that young Army serviceman kept pulling on his rip cord, and the chute eventually deployed – only to land him deep behind enemy lines, where he was captured and taken to a POW camp where he would spend the rest of the war.
On its own, this period of service and sacrifice would have distinguished any American. But Mr. Keeney had more to give – and was eager to go where he felt he could do the most good. I know we’re all grateful that, in 1951, he chose to continue his service to our nation by joining the U.S. Department of Justice – and beginning one of the longest and most remarkable careers in its history.
As every person in this room knows – Mr. Keeney didn’t just set a fine example. He set the standard. He was a model of professionalism – and effective leadership. He helped shape, not only the work of the Criminal Division, but also the course of this entire Department.
Over nearly six decades, he served under twelve different Presidents – and close to two dozen Attorneys General – helping to combat a range of threats, from organized crime to financial fraud – often decades before policymakers conceived of the robust law enforcement tools that prosecutors are able to employ today. He also became a mentor to countless young attorneys. And I am proud – and extremely fortunate – to be included in this group.
When I first joined the Justice Department 35 years ago, I was one of many who benefitted greatly from Mr. Keeney’s expertise, guidance, and kindness – and his willingness to help guide those of us just beginning our careers. Not only did I admire his legal skills and tireless determination, I often had the chance to celebrate his many contributions – as, time and again, Mr. Keeney was recognized with some of the highest decorations that our government can bestow on a civilian employee, including a Department of Justice building that’s named in his honor. Think about it: Robert Kennedy and John Keeney.
Upon returning to the Department as Attorney General in 2009, I – like several of my predecessors before me – found that I could always count on his sound guidance and unparalleled institutional knowledge. But I also had the benefit of getting the kind of advice only a friend can impart. He was that to me.
Despite Jack Keeney’s many achievements and awards, I never once saw rest on his laurels – or retreat from a challenge. He believed – and continually reminded his colleagues – that, in the pursuit of justice, there is always more work to be done. And, for more than half a century, Mr. Keeney was always there to lead the way forward.
Over the years, his work made a meaningful difference for people and communities across – and even beyond – this country. And today, in the efforts of the many lawyers he trained and encouraged – including his son Terry, a talented prosecutor who I’m grateful to count as a colleague and long-time friend – Mr. Keeney’s work goes on.
The people in this room are Jack Keeney’s living legacy. Through the memories that you will carry forward, his words will continue to teach us. Through the outcomes you achieve, his efforts will be strengthened. And through the spirit of service he helped ignite in each of you, I have no doubt that his dedication – to his nation and his fellow citizens – will continue to inspire this Department’s work for years to come and make America a better and more fair place.
Thank you.
FOR IMMEDIATE RELEASE
SEC NAMES JANE NORBERG AS DEPUTY CHIEF OF WHISTLEBLOWER OFFICE
Washington, D.C., Jan. 17, 2012 – The Securities and Exchange Commission today announced that Jane A. Norberg has been appointed as Deputy Chief of the Office of the Whistleblower, which oversees the agency’s whistleblower program.
Under that program established by the Dodd-Frank Wall Street Reform and Consumer Protection Act, individuals can receive awards if, among other things, they voluntarily provide the SEC with original information that leads to successful SEC enforcement actions. Staff in the Office of the Whistleblower helps ensure that whistleblower complaints are handled appropriately, and recommends to the Commission whether an individual is eligible for an award.
“Jane has extensive experience in both the private and public sectors, particularly with regard to corporate governance, compliance and disclosure matters,” said Sean X. McKessy, Chief of the SEC’s Office of the Whistleblower. “With the experience she brings, Jane will help us to fulfill our mission of administering a vigorous whistleblower program will help the SEC identify and halt frauds early and quickly to minimize investor losses.”
Ms. Norberg comes to the SEC after 14 years of experience at her own law firm and at Shearman & Sterling. In these capacities, Ms. Norberg advised major public corporations regarding executive compensation disclosure, corporate governance issues and other securities laws matters. She also negotiated and drafted severance arrangements for senior executive officers and provided guidance regarding non-competition and non-solicitation covenants.
Prior to her private law experience, Ms. Norberg served as a special agent for the U.S. Secret Service where she worked with confidential informants in planning, organizing, and conducting investigations of federal crimes including telecommunications and bank fraud, counterfeiting of U.S. currency, and forgery of federal checks and bonds.
“The whistleblower program is an important component of the SEC’s efforts to stop those who prey on investors and destroy the public’s trust in our capital markets,” said Ms. Norberg. “I am honored and excited to join the Commission staff and look forward to helping the agency build on the success achieved in the short time since the program was established.”
Ms. Norberg is a cum laude graduate of St. John’s University School of Law, where she served as an editor of the law review and was a merit scholarship recipient. She received her bachelor’s degree from Bloomsburg University of Pennsylvania.
Under the SEC’s whistleblower program, the SEC is authorized to pay 10 to 30 percent of money collected from enforcement actions involving a whistleblower whose information led to the successful enforcement of an action in which sanctions exceeding $1 million were imposed. The statute and rules implementing the program also include anti-retaliation protections for individuals who provide information to the Commission with a reasonable belief that the information relates to a possible securities law violation that has occurred, is ongoing, or is about to occur. For more information or to access forms to submit information or apply for an award, visit www.sec.gov/whistleblower
REMARKS AS PREPARED FOR DELIVERY BY ATTORNEY GENERAL ERIC HOLDER AT THE KING DAY AT THE DOME
COLUMBIA, SOUTH CAROLINA
Thank you for welcoming me to this great state and this beautiful city. I am honored to be with you all today – and to bring greetings from President Obama, from my fellow members of his Cabinet, and from my colleagues in the Department of Justice. I especially want to thank President [Ben] Jealous and Dr. [Lonnie] Randolph – as well as the NAACP’s leadership, membership, and many supporters – for inviting me to stand with, celebrate with, and dream with you today.
For more than a quarter of a century now, Americans have come together on Dr. Martin Luther King, Jr. Day to do just that. Each year, we are provided with an opportunity to rededicate ourselves to Dr. King’s vision of racial and social equality; to revitalize his efforts to expand economic opportunity and promote civil engagement; and to reaffirm our commitment to the values that were at the heart of his sermons, the root of his actions, the core of his character, and the center of his life: tolerance; non-violence; compassion; love; and – above all – justice.
Here in Columbia today, and in communities all across the country – in our corridors of power and our places of worship, in our schools and homes, on our streets and the steps of our State Houses – the spirit of Dr. King lives on. His memory continues to touch us. His legacy continues to guide us. And his words still have the power to teach us, to comfort us, and to call us to action.
Throughout his life, Dr. King spoke often of the “fierce urgency of now.” When he saw injustice in the world, he felt a need to act – and to do so immediately, purposefully, and collaboratively. When he looked upon his nation, he saw – not only great challenges, but also extraordinary opportunities. He saw infinite possibilities. And he saw – clearly – that for every individual to be free, and for our founding ideals to be realized, our entire society had to be transformed.
Despite the odds against him, he was undeterred. Despite the obstacles before him, he kept his faith. And despite those who tried to stand in his way, he proved that – here in America – large-scale, sweeping, righteous change is not impossible. It is not too audacious. It is not too ambitious. And it is not the province of God alone. Dr. King proved that a single person, willing to act, has the power to improve the world. And I believe that each one of us has a responsibility to try to do exactly that.
Of course, this is not easy work. And history has shown us that our most noble pursuits may be inspired by frustration just as often as by faith. But one of the most important lessons that Dr. King left to us is that it is acceptable to be frustrated. It is fine to be impatient. And, when progress does not come quickly or fully, it is only natural to be dissatisfied. In fact, being frustrated, impatient and dissatisfied is fine – but only if those feelings compel us to take action.
Dr. King’s strength was rooted in dissatisfaction. It was his hunger for justice, his thirst for peace, and his empathy for others that helped to motivate his life-long struggle to ensure equal rights, equal justice, and equal opportunity.
Dr. King was dissatisfied when anyone – anywhere – faced discrimination and oppression. He was dissatisfied when people of color were denied access to lunch counters, to educational opportunities, to good jobs, and to the ballot box.
He was dissatisfied when citizens who loved this country – and honorably served in this nation’s military – were not allowed to vote, or were forcibly discouraged from taking part in elections. And he was dissatisfied when – in pursuit of his dream of a just and inclusive America – he was told to “wait,” to “cool off,” or to “back down.”
What if he had listened? What if he had given into doubt and cynicism? What if he had given up? Just think about where each of us would be. For myself, I can’t imagine that I would be standing before you today – on this celebration of Dr. King’s 83rd birthday – as our nation’s 82nd Attorney General.
In this role, I have the privilege – and the solemn duty – of enforcing many of the civil rights laws and reforms that Dr. King fought to ensure. For our nation’s Department of Justice, and for our government and law enforcement partners across the country, this is among our highest priorities. This is evident in the historic progress that’s been made by this Administration – especially when it comes to expanding access to legal services; to combating hate crimes, community violence, and human trafficking; and to strengthening law enforcement efforts so that – in our workplaces and military bases; in our housing and lending markets; in our schools and places of worship; in our immigrant communities and our voting booths – the rights of all Americans are protected.
In particular, today’s Justice Department – and, specifically, our Civil Rights Division and its Voting Section – have taken meaningful steps to ensure integrity, independence, and transparency in our enforcement of the Voting Rights Act – legislation that Dr. King was instrumental in advancing and, in 1965, saw signed into law by President Johnson.
Nearly half a century ago, Dr. King correctly observed that, although the walls of segregation were crumbling, without equal access to the ballot box, America’s minority citizens would have “dignity without strength.” With this knowledge, he – and so many other courageous men and women – took extraordinary risks – and also made tremendous sacrifices – to ensure that their children, and future generations of American citizens, would have the chance to participate in the work of their government. They realized a truth that we must never take for granted – that the right to vote is not only the cornerstone of our system of governance, it is the lifeblood of our democracy. And no force has proved more powerful – or more integral to the success of the great American experiment – than efforts to expand the franchise. Let me be very clear: the arc of American history has bent toward the inclusion – not the exclusion – of more of our fellow citizens in the electoral process. We must ensure that this continues.
As President Jealous and others have discussed today – despite our nation’s record of progress, and long tradition of extending voting rights – today, a growing number of citizens are worried about the same disparities, divisions, and problems that Dr. King fought throughout his life to address and overcome. In recent months, in my travels across this country – and here in South Carolina – I’ve heard a consistent drumbeat of concern from citizens, who – often for the first time in their lives – now have reason to believe that we are failing to live up to one of our nation’s most noble ideals; and that some of the achievements that defined the civil rights movement now hang in the balance.
Let me assure you: for today’s Department of Justice, our commitment to strengthening – and to fulfilling – our nation’s promise of equal opportunity and equal justice has never been stronger.
Nowhere is this clearer than in current efforts to expand access to, and prevent discrimination in, our election systems. We are dedicated toaggressively enforcing the Voting Rights Act – and to fulfilling our obligations under both Section 5 and Section 2 of this vital law.
Under Section 2, which prohibits racially discriminatory practices that amount to either vote denial or vote dilution, we have opened a record number of new investigations – more than 100 in the last fiscal year. We’ve also had significant success – without litigation – in encouraging voluntary improvements and compliance.
At the same time, Section 5 – which requires preclearance of proposed voting changes in parts or all of sixteen states – continues to be a critical tool in the protection of voting rights. In 2006, it was reauthorized with overwhelming bipartisan – and near-unanimous – support in Congress, before being signed by President Bush. However, despite the long history of support for Section 5, this keystone of our voting rights laws is now being challenged as unconstitutional by several jurisdictions. Each of these lawsuits claims that we’ve attained a new era of electoral equality, that America in 2012 has moved beyond the challenges of 1965, and that Section 5 is no longer necessary.
I wish this were the case. But the reality is that – in jurisdictions across the country – both overt and subtle forms of discrimination remain all too common. And though nearly five decades have passed since Dr. King shared his vision from the mountaintop – despite all the progress we’ve made, the barriers we’ve broken down, and the divisions we’ve healed – as a nation, we have not yet reached the Promised Land.
That’s why the Justice Department will continue to vigorously defend Section 5 against challenges to its constitutionality. We’re now reviewing a number of redistricting plans in covered jurisdictions. Our reviews have included the proposed plans for the state House, state Senate, and congressional delegation here in South Carolina – and also will include redistricting plans for local election bodies.
We’ll also continue to review other types of changes to our election systems and processes – including changes to the procedures governing third-party voter registration organizations, to early voting procedures, and to photo identification requirements – to ensure that there is no discriminatory purpose or effect. For example, we recently objected – under Section 5 – to a South Carolina act that sought to impose a more restrictive photo identification requirement on voters in this state; and another that sought to change the manner of selecting members of a local school board. In each instance – after a thorough and fair review – we concluded that the state had failed to meet its burden of proving that the voting change would not have a racially discriminatory effect.
We need – and the American people deserve – election systems that are free from discrimination, free from partisan influence, and free from fraud. And we must do everything within our power to make certain that these systems are more, not less, accessible to the citizens of this country. The Justice Department will continue working to protect the voting rights of U.S. service members and veterans, and to enforce other laws that protect Americans living abroad, citizens with disabilities, and language minorities. But we can’t do it alone.
Protecting the right to vote, ensuring meaningful access, and combating discrimination must be viewed, not only as a legal issue – but as a moral imperative. And ensuring that every eligible citizen has the right to vote must become our common cause.
This means that we must support policies aimed at modernizing our voting systems; at ensuring that all eligible citizens have access to complete, accurate, and understandable information about where, when, and how they can cast a ballot; and at preventing and punishing fraudulent voting practices.
Voter fraud, quite simply, is not acceptable – and will not be tolerated by this Justice Department. But as I learned early in my legal career –when I actually investigated and prosecuted voting-fraud cases – making voter registration easier is simply not likely, by itself, to make our elections more susceptible to fraud. Indeed, responsible parties on all sides of this debate have acknowledged that in-person voting fraud is uncommon.
In this great nation there must always be room for discussion, for debate, and for improvement – and there will continue to be competing visions about how our government should move forward. That’s what the democratic process is all about – creating space for the thoughtful exchange of ideas, creating opportunity for citizens to voice their opinions, and ultimately letting the people – through the casting of their ballots – chart their course. Our nation has worked for, struggled for, and fought for such a system. And, today, this fight goes on. The progress we hold dear, and the democracy we hold sacred, is in our hands – and our responsibility to carry forward.
So let us seize this moment. Let us keep faith with Dr. King and rise to the challenges of our time. Let us act – with optimism and without delay; in honor of the men and women on whose shoulders we stand, and on behalf of the generations who will follow in our steps. And, in the spirit of Dr. King, let us signal to the world that – in America today – the pursuit of a more perfect union lives on, the march toward the Promised Land goes on, and the belief – not merely that we shall overcome, but that, as a nation, we will come together – continues to push us forward.
May God continue to bless our journey. And may God continue to bless the United States of America.
Main Justice will be updating periodically over the next week and will resume the normal publishing schedule Tuesday, Jan. 3, 2012.
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MONDAY, DECEMBER 19, 2011
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JUSTICE DEPARTMENT RECOVERS $3 BILLION IN FALSE CLAIMS ACT CASES IN FISCAL YEAR 2011
Department Sets Records for Recoveries in Health Care and War-Related Fraud Annual Recoveries in Whistle Blower Cases Reach All Time High
WASHINGTON – The Justice Department secured more than $3 billion in settlements and judgments in civil cases involving fraud against the government in the fiscal year ending Sept. 30, 2011, Tony West, Assistant Attorney General for the Civil Division, announced today. This is the second year in a row that the department has surpassed $3 billion in recoveries under the False Claims Act, bringing the total since January 2009 to $8.7 billion – the largest three-year total in the Justice Department’s history.
The $3 billion total for fiscal year 2011 includes a record $2.8 billion in recoveries under the whistleblower provisions of the False Claims Act, which is the government’s primary civil remedy to redress false claims for federal money or property, such as Medicare benefits, payments on military contracts, and federal subsidies and loans. The department has recovered more than $30 billion under the False Claims Act since the act was substantially amended in 1986. The 1986 amendments strengthened the act and increased the incentives for whistle blowers to file lawsuits on behalf of the government. That in turn led to an unprecedented number of investigations and greater recoveries.
“Twenty-eight percent of the recoveries in the last 25 years were obtained since President Obama took office,” Assistant Attorney General West said. “These record-setting results reflect the extraordinary determination and effort that this administration, and Attorney General Eric Holder in particular, have put into rooting out fraud, recovering taxpayer money and protecting the integrity of government programs.”
Assistant Attorney General West noted that the $3 billion recovered this year included $2.4 billion in recoveries involving fraud committed against federal health care programs. Most of these recoveries are attributable to the Medicare and Medicaid programs administered by the Department of Health and Human Services (HHS). They also include the TRICARE program administered by Department of Defense (DoD), the Federal Employees Health Benefits program administered by the Office of Personnel Management and Veterans Administration health programs.
Fighting health care fraud is a top priority for the Obama Administration. On May 20, 2009, the Attorney General and HHS Secretary Kathleen Sebelius announced the creation of an interagency task force, the Health Care Fraud Prevention and Enforcement Action Team (HEAT), to increase coordination and optimize criminal and civil enforcement. Since January 2009 alone, the department has used the False Claims Act to recover more than $6.6 billion in federal health care dollars. This is more recovered under the act than in any other three-year period.
The historic $2.8 billion recovered in whistle blower cases came from suits filed under the qui tam, or whistleblower, provisions of the False Claims Act. These provisions allow private citizens, known as relators, to file lawsuits on behalf of the government. In the 25 years since the False Claims Act was substantially amended, whistle blowers have filed more than 7,800 actions under the qui tam provisions. Qui tam suits hit a peak of 638 this past year, after hovering in the 300s and low 400s for much of the decade.
Assistant Attorney General West thanked the courageous citizens who have come forward to report fraud, often at great personal risk: “We are tremendously grateful to whistle blowers who have brought fraud allegations to the government’s attention and assisted us in this public-private partnership to fight fraud,” he said.
In 1986, Senator Charles Grassley and Representative Howard Berman led successful efforts in Congress to amend the False Claims Act, including enhancements to the qui tam provisions to encourage whistle blowers to come forward with allegations of fraud. In this 25th anniversary year of the 1986 amendments, Assistant Attorney General West paid tribute to the bill’s sponsors, saying that “without their foresight, the breadth of the recoveries we announce here today would not have been possible.” He also expressed his gratitude to Senator Patrick J. Leahy, chairman of the Senate Judiciary Committee, and to Senator Grassley and Representative Berman for their support of the Fraud Enforcement and Recovery Act of 2009, which made additional improvements to the False Claims Act and other fraud statutes.
Assistant Attorney General West also applauded Congress’ passage of the Affordable Care Act (ACA) in 2010, which reenforced the government’s ability to redress fraud in the nation’s health care system. Among many other changes, the ACA amended the False Claims Act to provide additional incentives for whistle blowers to report fraud to the government and strengthened the provisions of the federal health care Anti-Kickback Statute.
Enforcement actions involving the pharmaceutical industry were the source of the largest recoveries this year. In all, the department recovered nearly $2.2 billion in civil claims against the pharmaceutical industry in fiscal year 2011, including $1.76 billion in federal recoveries and $421 million in state Medicaid recoveries. These cases included $900 million from eight drug manufacturers to resolve allegations that they had engaged in unlawful pricing to increase their profits. Additionally, GlaxoSmithKline PLC paid $750 million to resolve criminal and civil allegations that the company knowingly submitted, or caused to be submitted, false claims to government health care programs for adulterated drugs and for drugs that failed to conform with the strength, purity or quality specified by the Food and Drug Administration.
Adding to its successes under the False Claims Act, the department obtained 21 criminal convictions and $1.3 billion in criminal fines, forfeitures, restitution, and disgorgement under the Food, Drug and Cosmetic Act (FDCA). The FDCA’s criminal provisions are enforced by the Civil Division’s Consumer Protection Branch.
In addition to health care, the department continued its aggressive pursuit of fraud in government procurement and other forms of financial fraud, including grant, housing and mortgage fraud that emerged in the wake of the financial crisis. In November 2009, President Obama established the Financial Fraud Enforcement Task Force to hold accountable the individuals and corporations who contributed to the crisis as well as those who would claim illegal advantage through false claims for funds intended to stimulate economic recovery. Of the $3 billion in fiscal year 2011 recoveries, these non-war related procurement and consumer-related financial fraud cases accounted for nearly $358 million.
Overall, the department recovered $422 million in fiscal year 2011 in procurement fraud cases, including $89.3 million in recoveries in connection with the wars in Southwest Asia. This brings civil fraud recoveries in connection with the wars in Southwest Asia since January 2009 to $153.4 million, and the total amount recovered in procurement fraud cases during that time to $1.5 billion, again a greater amount than in any previous three-year period.
Assistant Attorney General West expressed his deep appreciation for the dedicated public servants who contributed to the investigation and prosecution of these cases. These individuals include attorneys, investigators, auditors and other agency personnel throughout the Civil Division, the U.S. Attorneys’ Offices, HHS, DoD and the many other federal and state agencies.
