[inaudible conversation] before we have our Opening Statements for this hearing, i have a short statement i want to make on another issue. If mrs. Feinstein has anything on the same thing im talking about, she would get whatever time she wants. Separate from my regular opening statement, i need to talk about a serious threat to this committees Oversight Authority. The need for congress to havee access to information in the executive branch is inherent in the constitution. The Supreme Court has said so clearly and repeatedly. Executive Branch Agencies cannot limit our legislative power of inquiry mary merely by entering into nondisclosure agreements with one another, but thats exactly what the fbi has tried to do. Yesterday i sent a pair of letters to the office of special counsel and the fbi about the most recent example. P nondisclosure agreements are essentially gag orders, plain and simple. They thwart transparency, corner jim account ability and seek to obstruct congressional oversight. The office of special counsel, osc for short is a permanent independent watchdog agency, not a temporary prosecutor appointed by the Justice Department mr. Muller. Following from congress, the office of special counsel investigation of former director james comey. By law, one of the office of special counsel jobs is to enforce the hatch act which makes it illegal for government officials to engage in clinical activity. The office of special counsel began trying together evidence to find out whether james gummy had a political motive for his actions, but there was no, there was one problem. The fbi refused to cooperate voluntarily. Osc could have a caged in the long legal battle to force the fbi to turn over the, but the fbi was apparently less concerned about osc than they are about Congress Oversight opportunities and responsibilities. It demanded the fbi demanded osc promise not to any of the information to Congress Gallagher that was the price of quick access to the tranptation by that agency. So, osc took the deal, but the documents on the Interview Transcripts are vital to this committees oversight of the fbi. We managed to obtain two heavily redacted witness interviews showing that james comey made up his mind and started drafting his controversial announcements month month the investigation was over but we were not until informed and they are doubtlessly agreed to a gag order until after the fact. According to osc, the fbi has never asked for such a gag order for. Neither has any other agency. Why now . Why was the fbi so focused on keeping congress in the dark . Why is it so afraid of shining the light of day on the controversial decision mr. Comey made in the months before he was fired. This isnt the first time the fbi has tried this trick. Ed it also reportedly made all the agents working on then clinton investigation agreement agree special gag order, but the executive branch cannot avoid constitutional oversight by assigning Agreements Committee has Oversight Authority over the department of justice and the fbi. If there is any whiff of inappropriate partisan or political influence in these institutions, under any administration or any party, this committee has a duty to get to the bottom of the process is exactly what we will do. I expect full complete and timely answers to my letters. This committee needs to see the full witness interview and all the documents including drafts and internal fbi memos about his decision to make that controversial Statement Last summer. I will do everything in mymy power to make we do. Do you have anything you want say on that subject. You can have whatever time you want. Thank you very much mr. That i am in agreement the general point of your statement. I have found it should also apply with the sharing of intelligence with this committee, and i have sent a letter to senator burr as a member of the Intelligence Committee. I have been privy to certain pieces of intelligence as would senator cornyn be privy to that. It seemed to me that when i saw it, it was relevant to this committees oversight. Hopefully the Intelligence Committee will be responsive and that matters that involve our oversight, which as we discussed in the investigation, there is clear oversight of the Justice Department and therefore, matters of obstruction of justice are within the jurisdiction of this committee. Hopefully we will be able to obtain that. T a i just havent had a chance to tell you that. Think you. Welcome everyone to this very important committeeee meeting and hearing that has very basic constitutional issues that are connected with it. We have an outstanding panel to help us go through this so todays hearing we will hear testimony related to to bills recently introduced by members of our committee, 1735 introduced by grahamha whitehouse campbell and all as well as their members of the a committee and senator booker who is not a member of this committee and 1741 introduced by senator tillis and coons. These bills have some things in common. Fy each attends to codify d. O. J. Regulations about removals of special counsel. Each bill provides for judicial review of removal decision, and each bill has bipartisan support. It is also clear that each bill is motivated by similar concerns about the Current Special counsel Robert Muller and his investigation into the russian government effort to interfere in the president ial election. One of the bills even specifies that it applies retroactively to the date of robert dollars appointment bills were introduced and media speculation was rampant that President Trump was contemplating firing Robert Muller. The president has that he doesll not intend to fired Robert Muller and he made the right decision. I hope this investigation proceeds to its conclusion rapidly on what Deputy Attorney general Rod Rosenstein charts it to investigate. The american sure this committe committee, which has jurisdiction over j, fbi, et cetera will take its oversight role over the investigation as seriously as i committee has a reputation for. While there is no doubt that Current Events are significant to the issues we discussed today, it is my hope that during todays hearing the committee will engage in a broader discussion of the grand tradition of the senate. Both of the bills will be discussed today and they raise separation of power concerns that i believe deserve the attention of the committee and respectful discussion of a. The issues that we discussed today are bigger than the president or any of us. They concern the fundamental design of our republic when they drafted the constitution founders of this nation. We are rightfully concerned w that those in power would be tempted to abuse it to favor their own interest. To prevent this, the founders divided power among the three branches of government that i dont have to reiterate but James Madison put it this way ambition is made to counteract inpatient and ambition. It is through this system of checks and balance between the ambitious branches of government that are fundamental liberties are protected. There are those who argue that the rise of the modern administrative state, with itsad federal agencies that are vested with both executive andnd legislative powers and even judicial power sometimes have weakened the separation of power provisions of our constitution or at least changed how we should understand them. I believe our Government Works best when each branch of government has a clearly defined role, and i think even in our modern times, with our greatly expanded federal government, that is not too much for us to hope for. But, it is something that wet as members of congress mustt carefully consider as we look at this draft registration. Some will agree that these bills are good policy and argue by codifying the d. O. J. Special counsel regulations and providing judicial review over removal decisions they provide useful certainty about how disputes over the removal of a special counsel would proceed for the office of special counsel, but there are others who argue these efforts run a foul of the constitution by interfering with the president s ability to control the executive branch and to make sure the laws are faithfully executed. I hope both those who view these bills as constitutional and those who express theirhe doubts, that there constitution can agree on one thing, there is a robust role for congress in overseeing the executive branch including all investigations conducted by the department of justice apply appointed special counsel. The American People also play an oversight role and can apply political pressure to any president who removes a special counsel for reasons they do not consider adequate. Do no finally, the constitution gives congress the ultimate check on the executive branch through the power of impeachment. Every american has a right to expect their government to be ethical, effective and accountable. Ne if there is one thing that i have learned in my career as both a founder and farmer and a senator, where the sun pokes through, there can be no darkness. Ive spent my career as a strong advocate for openness and transparent government but i also believe the separation of powers is essential to preserve the liberties that wei americans enjoy. I look forward today and gorsuch todays hearing. Thank you very much. My ea as i might, let me start with a correction in my earlier remark. The letter i mentioned on the intelligence sharing with this committee was sent to the director of the cia, mike pompeo, and was signed by both the chair and ranking memberd of this committee. We sent it yesterday and id ask that it be incorporated in the record. It will be in the restaurant. Without objection. Thank you for calling this hearing to address the two bipartisan bills to protect the integrity of the special counsel. Today, under Current Department of justice regulations, the specialsp counsel, as everybody knows, cannot be fired for anything but misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause. Since those regulations have been in place since 1999. They were made to ensure integrity and in partiality when department of justice wase of interest. They have been in place during democratic and republican administrations. Neither their necessity nor efficacy has ever been seriously questioned. Both of the bills we are considering today provide extra layers of protection for special counsel. They were introduced on the heels of report that President Trump was contemplating firing special counsel bob muller. A man who has broad bipartisan support and who has served this country with honor and distinction. G i think my colleagues, from both parties, agree that firing him would be a grave mistake. For example, senator grahamio has said that unless special counsel muller did somethingsa wrong, firing him, and i quote, could begin, could beir the beginning of the end of the trump presidency. Senator markey has gone so far to say doing so would be a fullblown constitutional crisis. Firing special counsel muller would be that much more concerning given widespread understanding that individuals post to the president , or even the president himself have tried to tip the scales of the Russian Investigation. N. Weve all heard President Trumps reaction when attorneyse general sessions recused himself from the russia investigation. Even though the attorney general acted properly, the president berated him because the recusal led to the appointment of the special counsel. Hear several months ago, we also heard from former fbi director james comey who testified before the senate Intelligence Committee that he felt pressured by the president , to quote, let flynn go, and to lift the cloud even though an fbi investigation was ongoing. Simply put, i have strenuous concern about President Trump respect for the rule of law. The president must know that congress will not stand idly by if he attempts to undermine independent, criminal investigations. Crimi turning to the bills themselves, first, they bothth require good cause because before the special counsel may be removed, this means the attorney general could not fire the special counsel absent some sort of misconduct, illegal act, or violation of Justice Department policies. Secondly, if the attorney general finds good cause to remove the special counsel, both bills allow a court to review that finding. The two bills differ a bit. The bill introduced by senators graham and booker and cosponsored by senators whitehouse and blumenthal would require a court to determine that good cause exists before the removal of the special counsel. The bill introduced by senators tillis and coons would allow the special counsel to ask the court for reinstatement after the fact t if the removal was not for good cause. That bill also provides that if the attorney general is recused, only a department of justice official, confirmed by the senate, could fire the special counsel. We are j were joined today by a panel of distinguished legal experts , and i very much look forward to this discussion. Co i expect much of it will cover Supreme Court precedent and whether the precedent applies to todays situation. While precedent is certainly important in this discussion, i am hopeful we wont let a discussion of legal theory prevent us from speaking about the real world problems, these bills address. We are aware that in 1973, president nixon wanted to fire special prosecutor called cox conducting the watergate investigation, but the Watergate Special prosecutor could only be removed by the attorney general, and only for good cause. Nixons order to fire the special prosecutor led to the saturday night massacre and resignations of attorney general elliott, richardson and deputy general William Rocco house who determine there was not good cause to fire cox. Although cox was ultimately dismissed, it was not beforere to Justice Department officials had sounded the alarm on president nixons interference with the investigation. That is proof that protections like the ones we are discussing today are not only necessary, but they also work. If past is prologue, what we are discussing today could not be further from being merely theoretical. With that i turned to the chairman. Thank you. Senator feinstein already referred to our analyst as distinguished panelists, and ive noted, my staff has noted for me, all the publications you have all done. If i refer to every one of those publications you will never get a chance to give your remarks. Im going to give a relatively short introduction of each of you, but you can go to record everything that is in my opening remarks will be in the record. You will know that i have absorbed that you are all well published and distinguished in your profession. Our first witness is professor Akhil Reed Amar, sterling professor of law and Political Science at yale university. He teaches constitutional law. He is also won awards from the american bar association, the Federalist Society and others. He is authored dozens of lawha review articles that i will put in the record. Our second witness is professor eric, the kirkland and ellis distinguish Service Professor of law, university chicago. He writes about antitrust legal theory and constitutional law including the law of president ial powers. He has written more than a hundred articles and academic journals in more than a dozen books including two of thepr president ial power, one entitled the executive unbound after the madisonian republic, and then he has published in various important newspapers and other articles. Those will be put in record. Our third witness, professor steven, professor at the university of texas school of block, senator cornyn and i, i was going to introduce these folks. Was i supposed to give deference to you. No, sir. Go ahead mr. Chairman. I am glad to have someone with the university of Texas Law School today. We discussed by the reauthorization yesterday in austin. Im glad to have him here. Professor steven, a professor at the university of texas school of law teaches federal jurisdiction, constitutional and National Security law. His works appeared in a variety of news forms and publications including harvard law review and yale. Our final is john duffy. S he is at the Virginia Law School and teaches tort, administrative law, patent law and intellectual property law. It he has also served as director editor for the university of chicago law review and was awarded the olin fellowship in law and economic, professor duffy clerked for judge Steven Williams on the u. S. Court ofnd appeals for the d. C. Circuit first glia, served as attorney advisor in the Department Justice office of Legal Counsel and practice law at covington and birmingham. He has also published much the committee has also received a letter from Professor John harrison, the James Madison distinguished professor of law at the Virginia Law School and he expresses his views that both of the bills th