At today's Senate Judiciary Committee hearing, Sen. Sheldon Whitehouse (D-RI) questioned Emil Bove, nominee to be to be United States Circuit Judge for the Third Circuit, and current Deputy AG.
00:00Time begins. May I take a moment to make a point of order? Yes. You indicated, Mr. Chairman, in your opening remarks, that the committee should be constrained by the deliberative process privilege.
00:18Yes. And by the attorney-client privilege in our examination of this witness, it's my understanding that Congress has never accepted the constitutional validity of either such privilege as an inhibition of our constitutional congressional oversight responsibilities.
00:45And so I don't intend to follow that direction because I don't think it's correct. And I think it abdicates really important oversight authorities that we have.
01:04Moreover, particularly when we are in a nominations process and somebody has affirmatively put themselves forward, to then have them seek the shelter of deliberative process and attorney-client privilege puts us in an even worse position.
01:20So I think if we were ever going to do this, nominations are the low ebb of any justification for that.
01:29It gets even worse when the nominee faces questions about official misconduct as a lawyer.
01:37Among other reasons, privileges tend to fall when misconduct is alleged.
01:47And so for all of those reasons, I just as one senator reject the proposition that this committee must yield in its questioning and in its fact-finding in an oversight or nominations matter to those executive privileges.
02:09I don't think Congress has ever taken the position that they supervene our constitutional oversight authority.
02:16And I think it was an unfortunate occasion that that happened this morning.
02:23If Senator Whitehouse is asking this farmer to listen to more lawyers, I'll be glad to consult.
02:31I'd be delighted to follow up on this because I think it's a really bad position for this committee to put itself in with respect to nominees or other oversight matters, particularly when we oversee the Department of Justice that is stuffed with lawyers who can easily cook up an attorney-client privilege defense or a deliberative process defense.
02:52And then we are now in a no-fly zone with respect to our oversight responsibilities.
02:59Nobody takes oversight responsibilities more seriously than you, Chairman.
03:02So I hope we can come to a better accommodation on this than your opening statement suggests.
03:08Right now, I can't say more than I have.
03:10That's fine.
03:11That's fine.
03:12And I'd also like to ask unanimous consent to put into the record, to the extent that has not been done so far, the whistleblower report that has been discussed.
03:21The resignation letters of the career officers in the Adams prosecution.
03:26The resignation statement by Denise Chung in the GGRF matter.
03:32The article that I have here from Politico related to the nominee's management character.
03:42And the Wall Street Journal editorial describing him as a smash-mouth partisan who wields the law as a weapon.
03:49Without objection.
03:51Okay.
03:52With that, thank you.
03:53I guess my clock got started already.
03:56Mr. Bovey, what was your role in Ed Martin's plan to create a unpredicated criminal investigation as a basis for trying to seize greenhouse gas,
04:18greenhouse gas reduction funds.
04:21Were you engaged with him in that plan?
04:25I'm not aware of such a plan, Senator, but I did participate in the matter that you're referring to.
04:31Plan, matter.
04:32Okay.
04:33Did you know that before he took office, he had expressed private opinions about the, I'll call it GGRF for time purposes, before he came in?
04:45I'm not sure what you're referring to.
04:47Okay.
04:48Did you, did he consult with you regarding his efforts to get a document together to present to a magistrate judge to provide a basis for freezing and seizing the GGRF funds?
05:06Senator, like many nominees before me who come to testify before this committee and are at the same time simultaneously serving in the department.
05:18This includes Justice Kagan, Justice Kavanaugh, Judge Katzis, all at various times, but were serving or served previously.
05:28I'm not going to be able to comment on the specifics of matters like that.
05:32I'm not asking you at this point.
05:34I'm asking you, were you consulted regarding that?
05:36And my answer is limited to, I participated in the matter.
05:40And if they're public, if there's public information about the matter that you'd like me to try and address, I'm happy to do my best to do that.
05:47The chief of the criminal division was removed after she refused to sign off on the proposal on the proposed pleading.
05:59Were you involved in her removal?
06:04I've read public reports about that, and to my recollection of those reports, I believe she resigned.
06:11Did you approve the U.S. Attorney demanding her resignation and pressing her out of her office?
06:23I'm not able to go beyond the fact that I participated in the matter that you're referring to, Senator.
06:29Were you aware that U.S. Attorney Martin went into court alone without any other career attorney or any other attorney in the office willing to sign off on the pleading in which he sought the freeze or seizure?
06:53I'm not sure if that's true or not, Senator.
06:56We can look at the pleading.
06:58Nobody else signed.
07:01He ran out the criminal chief for refusing to sign.
07:04Presumably, he went shopping for somebody else who would sign.
07:08Nobody did, so he went in alone.
07:11Will you agree that it is very unusual for a politically appointed United States attorney to file a pleading without the support of a single career prosecutor in the office?
07:23No, I don't agree with that.
07:25I will.
07:26Were you aware that when he did go in alone without the support of a career prosecutor in the office, he was shot down by the magistrate judge in pursuing the order?
07:40Senator, I refer you to my previous answer.
07:43I'm not able to go beyond the fact that I participated in the matter.
07:47Did you agree that ordinarily the Department of Justice does its very best to make sure that its pleadings are sufficiently well prepared that they are not shot down by magistrate judges?
08:04Yes, of course.
08:05After it was shot down by the judge, did you participate in shopping the matter to other offices so that the effort to seize or freeze the GDRF funds could be pursued despite the U.S. attorney's failure?
08:26Senator, I'd refer you to my previous answer.
08:31I'm able to confirm I participated in this matter.
08:34Based on public reporting, I am aware that there are certainly other districts with grantees who receive funds from these programs where under the law that applies to venue, it would be appropriate for similar investigations to take place.
08:46Did you contact them?
08:47I refer you to my prior answer, Senator.
08:52Did you let them know that the effort by interim U.S. attorney Martin had been shot down?
09:03I apologize, Senator.
09:04I'm not trying to be difficult, but I must refer you to my prior answer.
09:08Senator Kennedy.
09:09Just if I may, Chairman.
09:11Proceed.
09:12This is not further questioning.
09:13I know my time is expired.
09:15Do you see my point now?
09:20We have an individual here who is here seeking confirmation to one of the highest judicial offices in the land.
09:28I'm asking quite legitimate questions about potential misconduct in office.
09:34Some of it has nothing to do with the substance of pleadings, but has to do with administrative matters like seeking the removal of a
09:44criminal career chief prosecutor.
09:49Some of it has to do with administrative matters like case assignment.
09:54And the fact that I can't get anything resembling a straight answer in the circumstances that we're in right now, I think signals a really bad moment for this committee.
10:09And I hope we can reconsider.
10:10I said I would be glad to discuss that with you.
10:13Can we get him back then once the rules are clear?
