1980s and that case, the Supreme Court instructed federal courts to defer an agencys interpretation of the law if the law is quote ambiguous, unquote. Some of your academic writings express skepticism about the Chevron Doctrine and concern that it allows an ad men straegs to impose its policy preference by avoiding the political process. I can understand why this is appealing to an administration. I also think its a threat to the separation of powers because it transfers power fro the congress and just dish area to the Executive Branch. Thats why ive reversed the Chevron Doctrine. Many members of this committee have cosponsored this ledges london attacks. As someone who has written extensively about the separation of powers, can you tell us why the separation of powers are so important and how it how it
helps to protect individual freedom. Spiration of powers protects individual lebt because it responds to the concern the framers had that Senator Klobuchar yesterday that the accumulation of one power in one body would be the very definition of tyranny. Federal 47 talks about. That federalist 69. The powers protects individual liberty. It does so because congress can pass the laws but you cant enforce the laws. A separate body has to decide to enforce the laws. Even if the law is enforced, a citizen may say, well, i want someone who didnt pass the law or enforce it to decide whether i violated the law or whether the law is constitutional. Thats why we have an independent just dish area to germany tee as an independent matter our rights and liberties. And the three branches, therefore, do separate things because it all tilts toward
liberty. Its hard to pass a law as you know in the congress. And then even if it does get passed, it affects your liberty. A separate body has to decide, usually u. S. Attorneys office to enforce the law. Thats a separate decision. That helps protect your liberty. Even if that happens, you go to a court and say i didnt advise that law or the law is unconstitutional or theyre interpreting that law in a way not consistent with what the law said the court independently decides that. Its not the members of congress or the executives deciding that. Thats how the Constitution Separation Of Powers Tilts towards liberty in all its respects. Now. As to your specific question, senator, one of the things ive seen in my experience in the Executive Branch and in the Judicial Branch is a natural tendency, but its a natural tendency that judges need to be aware of and then respond to
you. So heres the natural tendency, Congress Passes laws but then doesnt cant update the laws so maybe its an environmental law or maybe its some kind of law dealing with National Security. Lets take those two examples to illustrate and then an executive Branch Agency wants to do some new policy. And propose a new policy to congress, but congress doesnt pass the new policy. What often happens or too often ive seen is that the Executive Branch then relies on the old wall as a source of authority to do this new thing and they try to say, well the old law is ambiguous so we can fit this new policy into the old law as justification for doing this new thing. And ive seen this in National Security cases. Ive seen it in environment am. You see it all over the place. Its a natural phenomena. Because the Executive Branch wants to implement what it
that normally isnt an issue during Supreme Court hearings. You testified before this committee in both 2004 and 2006 as part of your nomination to the d. C. Circuit court. Then you were nice enough to come by my office and chat with me last month. I asked you if you changed anything in your prior testimony and you said no. Is that still your position . It is, senator. I told the truth. I was not read into the programs. Im not asking what you did. Im asking you if you would change anything id like to explain if i can. I will give you a chance, i will ask you a couple questions. Go ahead. I want to explain that at the last hearing if 2006, in particular, you were concerned understandably because there had been two just terrible nominees
who had been involved in the legal memos in the legal discussions around crafting the Enhanced Interrogation Techniques and protection policies. You were concerned whether i also was involved in that. And i made clear in response to those questions that i was not read into that program. That was 100 accurate. Its still accurate today. I think senator feinsteins report in the office of professional ethics said i was not involved. There were two judicial nominees. I want to go into that a little bit. I dont want to go over my time as the appreciating senator did. Senator, i want to be clear, i want to reassure you. I will go into it and give you a chance to speak more. Without im not going to take time away from you. I want to explain something. I said yesterday that if a question is asked within the 30
minutes, that he can finish the question and it can be answered. So i he did not go over his time. Sorry. I did not mean to hit a sensitive area. Let me ask you this, between 2001, im new here, between 2001 and 2003, two republican staffers on this Committee Gregogre regularly hacked into Computer Files of six senators, including mine. These republican staffers stole 4,670 files. They used them to assist in getting President Bushs most controversial just official nominees confirmed. Now, the theft by these republican staffers became public in late 2003 when the Wall Street Journal happened
you testified, and you testified repeatedly, that you had never received any stolen materials, you knew nothing about it to the public. You testified that if you had suspected anything untoward you would have reported it to the white House Counsel, or would have raised it with Senator Hatch, especially as mr. Miranda had worked for him. At the time we left it there. We didnt know any better. Today, with the very limited amount of your white house record that has been provided to this committee and it is limited, for the first time we have beenably learn aboable to about your relationship with mr. Miranda and your knowledge of these events. So my question is this, did mr. Miranda ever provide you with highly specific information regarding what i or other Democratic Senators were planning on asking certain
judicial nominees . Senator, let my contextualize, let me see what you are putting up here. That question that, whats up there is 100 accurate. Thats my memory. Okay. So let me ask you this, thats never knew or suspected, true. Never suspected anything untoward, true. And i suspected had i suspected something untoward i would have talked to judge govenz or Senator Hatch. Thats all 100 true. Thats what i already said. But did mr. Miranda ever provide you with highly specific information regarding what i or other Democratic Senators were planning in the future to ask certain judicial nominees . Well, one of the things we
would do as a white house is on judicial nominations, im coming to your answer, i will explain, to meet up here this happens on both times all the time with teams up here about okay the judicial nominees are coming up, how are we going to get them through . Heres a hearing coming up. During those meetings, of course, it would be discussed, well, i think heres what Senator Leahy will be interested in. Its very common, im sure in president Obamas Administration within they had similar meetings, they would have meetings and say, i think this is what senator graham will be interested in. Thats what you do in meetings with so highly specific, would i think,i im not sure what you a getting at i have been here over 40 years, i know what republican and Democratic Administration is
doing preparing. Im not asking about that. Im asking you why before this did mr. Miranda send you an email asking you on july 19ing, 2002, asking you and another bush official why the leahy people were looking into financial ties between two special Interest Groups and pursuant to a particular controversial nominee to the fifth Second Quarter . You would handle that nomination as you know as a judge, you had received a lot of contributions. Did mr. Miranda send you an email asking you why the leahy people were looking into her pry natural ties . Is that what this email is . Im just asking . Can i take a minute to read
nit. Of course. This is four days before the hearing on july 23rd. Did i send any of the emails on this chain . I dont think so. Im ccd or in any event, if he said why are the leahy people looking into this from manny miranda, i dont have a specific recollection of any of this. It would have not been unusual for and this happens all the time i think the leahy people are looking into this the hatch people are looking at that, i think. You say all the time. Two days before the hearing, he told you that the democrats were passing around a related 60 minutes story. He said his intel, television, suggests that leahy will focus on all things money. Well, that appears to come from a stolen email to me, stolen by the republican staff member sent to me the night before and then given to you the next morning. Were you aware that you were getting from mr. Miranda stolen emails . Not at all, senator. It was a part of what appeared to be standard discussion about its common, senator, for the white house, it would be common to hear from our alleged affairs
team. This is, in fact, in this process. Its common to hear. This is what senator x is interested in. This is what in y is focusing is it common to have copies of a private email sent to a particular senator . Copies of a private email sent to a particular center . Yes. Wouldnt that just out at you . What are you referring to in. Mr. Miranda is telling you about emails sent to me the night before, there would be no way that he would even have that unless he stole it. Did that raise any question in your mind . Did he refer to that email in this is this. Yes. Where is that, senator . Ill let you see it. Im not seeing where you are im not sheing what you referring to. Yeah, its not clear. Why dont take one that you do have . You do have this information from mr. Miranda and the very limited amount of material that the republicans are allowing us to see of your information about you, that at least did come through. But in journal 2003, let me go to something very specific, mr. Miranda afforded you a letter from me and judiciary democrats to then majority leader tom daschle. The letter was clearly a draft, it had typos and it wasnt signed. Somebody eventually, we never put it out, somebody ep ventually leaked it in this instance to fox news, im not sure who, i could guess. It was a private letter. At the time i was shocked it existed, it had been leaked. But heres the thing, you had the full text of my letter in your inbox before anything had been said about it publicly. Did you find it at all unusual to receive a draft letter from Democratic Senators to each other before any mention of it was made public . Well the only thing i said on the email exchange if im looking at it correctly, senator, who signed this is this which would imply that i thought it was a signed letter. It was sent to you. Were you surprised to get it . Its obviously a draft. Its got typos and everything else, were you surprised a draft letter Second Quarter lated among democrats ended up in your inbox . By mr. Miranda in. I think the premise of your question is not accurately describing my apparent
recollection or understanding at the time because i wouldnt have said who signed this if it was, if i thought it was a draft. My email says who signed this . Sow den realize what you had was a stolen letter signed by me that you had a letter that had not been sent to anybody fought made by the public in. All i see is a letter that says who signed this . Thats all i see. Let me ask you some more. So much of this came from mr. Miranda, who was a republican staffer, who what was as we now know stealing things. Did he ever ask to immediate privately with you in an offsite location other than somewhere at the white house or capitol hill . I think sometimes, senator,
that the meetings with Senate Staffers and white house and justice departments im asking you about one particular one with mr. Miranda. Yes, sometimes, usually it would be at the white house or the senate. I think sometimes wed meet or doj, but sometimes it could be somewhere else. Did he ask to meet with you privately to give you information about Senator Biden and senator feinstein . Im not remembering anything specific, but thats certainly possible. Again, senator, i just want to be clear here, because its very common when are you in judicial Selection Process to determine what are all senators interested in for upcoming nominee or upcoming hearing. That is the cone of the realm. Senator x is interested if focusing on administrative law. Senator y is going to ask about
an environmental law. A senator is concerned about your past work for this client and thats very common kind of discussion. Did you ever ask, had you meet him not at the white house, not at the capitol, but at his home . I dont remember that. Okay. Did he ever ask to meet you outside of the white house or the capitol . I cant rule that out. But again that wouldnt have been typical. Did he ever hand you material separately from what would be emailed back and forth . Im not remembering, if you are referring to something in particular, i could answer that. Let me ask you this did you ever receive information via mr. Miranda, Information Marked Confidential informs you that my staff was sharing with other
democrat democrats . I dont know the answer to that, senator. Again, its not always the case, at least my understanding, that the people on for example your staff and Senator Hatchs staff were necessarily working at odds. It seemed like a lot of times the staff was cooperating at times, not at other times, obviously, but at times about just dish nominations. So it wouldnt have raised anything in particular in my mind if we learned, oh, Senator Leahy is concerned about this. Did my staff ever send you confidential material from Senator Hatch that was stolen from his emails . Well, not the last part. But the i certainly did talk to your staff working on the airline bill on the september 20, 2001 airline bill. I did remember being here all
night one night with your staff. Im sure we did talk about what other senators thought. That was the airline bill where as i think you recall Speaker Hastert was involved and we were out there with the l b team. With that i worked hard with your staff. It struck me as not uncommon at all to be talking with your team what both sides think. It doesnt strike me as it was armed camps. No, and oftentimes it was not. Here you are getting obviously very private democratic emails. You werent concerned how mr. Miranda got them . Im sure im not sure about your premise. Were you at all concerned where mr. Miranda got some of the material he was showing you . I dont recall that. But the premise of your last question, i wanted to step back to that, im not sure i agree
with the prem es. I want to say, you saw something marked confidential, wouldnt you assume thats not something shared back and forth . Unless it was shared. This is the thing, if the staffer says heres what were sending to you all should be aware of this we will be opposed to this judicial nominee, just to be clear, it seemed to me sometimes there were judicial nominees you were very a posed to, sometimes you were supportive of. Sometimes in between and there would be messages passed back and forth. You were transparent, in other words, when you had problems with nominees, i recall transparency, when you were supportive, you were at the may 9th event at the white house the president announced his first court of nominee, you were
supportive of many of them. As you know i voted for lot of republican nominees, both the Supreme Court and the district course. What i opposed with the judge when i was raising very questions about funding getting from people that were before her court, that might have raised a red flag that i had some concerns about it. Now when you work at the white house, did anyone ever tell you they had a mole that provided secret information related to nominations . I dont recall the reference to a mole which sounds highly specific. Certainly it is common again the people behind me can probably refer to this its common i think for everyone to talk to each other at times and share
information. At least this was my experience, this is 20 years ago almost where you talk to people and the committee. You never received an email with information coming from spying on a democratic mole . Im not going to rule anything out, senator, but if i did, i wouldnt have thought that the literal meaning of that. It wouldnt have surprised you that few got an email, saying somebody is spying . Well, is there such an email, senator . I dont know. Wed have to ask the chairman what he has in his consideredtial material. But heres the, if you are referring to something particular. Heres what i know. Just stop a minute here, referenced twice in your 30 minutes, dont take this off of his time, you made reference
this, are you talking about the period of time that he was white House Counsel . That material is available to everybody. So that bit of material about hi