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Continuation of FBI Director Confirmation Hearing. Aired 11:30a-12n ET

Aired July 12, 2017 - 11:30   ET


SEN. JOHN CORNYN, R-TEXAS: -- after violent and repeat gun offenders is warranted?


WRAY: I do think it's a very important part of that effort. I prosecuted as a line prosecutor quite a number of straw purchaser, you know, gun-trafficking cases. And then, of course, as you mention, Project Safe Neighborhoods -- I think the model of having coordination between federal and state and local, and figuring out which cases can be done more effective federally is a powerful deterrent effect on gun criminals throughout the country.

And so I think that was a very effective program and a model that we ought to be looking at going forward. The FBI's role may be more limited within -- I mean, ATF, I think, would play in some ways a bigger role on a lot of the gun issues. But the FBI does have an important role to play and would need to be in a very significant seat at the table.

CORNYN: That's a conversation I'd like to continue once you're confirmed.

Thank you.

WRAY: I look forward to it.

GRASSLEY: Senator Whitehouse?

WHITEHOUSE: Thank you, Chairman.

Welcome, Mr. Wray. I'm delighted that you are here, and I wish you well. I would like to ask, as a question for the record, that you provide the committee with a complete description of what you know about how it is that you came to be selected -- if you could lay that out. We had a similar question and answer from Judge Gorsuch, and I think in this case it would be helpful.

But let me ask you a specific question to that here, which is during the course of coming to this table today and being nominated, you mentioned that you will owe your duty of loyalty only to the Constitution and the rule of law. Has anybody asked you otherwise?

WRAY: No, Senator. No one has asked me for any loyalty oath, and I wouldn't offer one. As I said, my loyalty is to the Constitution, the rule of law and the mission of the FBI.

WHITEHOUSE: You've kind of answered the question when should the FBI director unilaterally take over the role of attorney general of the United States. And I read your answer to be never. But let's say you're presented with a situation in which you don't have confidence in the attorney general in a particular matter because of a conflict of interest, because of perception issues -- for whatever reason it is that you have lost confidence in the attorney general on that matter.

What, then, if you're not going to just unilaterally take over the role of attorney general and hold your own press conferences and make your own announcements as if you were the attorney general, what would plan B be? Who do you go to? Do you go to the attorney general anyway, even though you've lost confidence? Do you go to the DAG and say "I have a problem" and try to work something out? What's the -- what would be the proper way to face that problem in the Department of Justice?

WRAY: Well, Senator, as you know from your own time as U.S. attorney, I think the deputy attorney general is the proper place to go under that scenario.

WHITEHOUSE: Good answer. I agree with you. And I gather your answer to when should the FBI disclose derogatory investigative information about an uncharged subject is also never. But you went on to say that the protocol against disclosing derogatory information is there for a reason. Could you state the reason? WRAY: The reason, Senator, is that if the department has negative information to share about somebody, then the proper way for it to manifest that is through charges. Because then the person who is accused has an opportunity to defend themselves against those charges. And it would be resolved by a jury or a judge, if it's a bench trial. So there's a place for the accused to vindicate or fail to vindicate the charges against him. With uncharged conduct, there's the old saying, "Where do I go to get my reputation back?"

WHITEHOUSE: And it is a corollary of the rule that the FBI does not disclose derogatory investigation -- investigative information about an uncharged subject, that even when a subject has been charged, you limit yourself to the conduct that is charged in the indictment or information in the charging documents, or in subsequent court filings. Correct?

WRAY: Right, exactly...


WRAY: ... the prosecutors try to stay within the four corners of the charging documents and the public record.

WHITEHOUSE: Even when you have a charge subject, it's still not open season with derogatory investigative information.

WRAY: If we have derogatory information to share, it should be manifested in a charging document of some sort.

WHITEHOUSE: Correct. Great. Thank you.

I may be going over re-plowed ground, but I really want to make sure that I get this right. There was the, in my view, infamous Yoo- Bybee 2002 torture memo that gave the department's approval to waterboarding. That memo omitted a number of things. It omitted a 5th Circuit decision upholding a conviction, by the Department of Justice, of a Texas sheriff for waterboarding criminal suspects. Pretty big thing to overlook in a legal memo, in my opinion.

It overlooked the court-martial of U.S. soldiers, in the Philippines, for waterboarding Filipinos. Again, a little bit out of the direct lane of criminal prosecution, but you'd think that an office of legal counsel would be able to figure that out and know that the United States had this history. And, third, it overlooked the military tribunals, that prosecuted Japanese soldiers, for the war crime of waterboarding U.S. prisoners.

So, to me, that memo was a horrifying low point in the legal scholarship of the Department of Justice. Your name came up in testimony in Congress with respect to a 2003 memo. Could you just let me know what role you had in signing off on any of the OLC torture memos and what you knew about them? I know a lot of people were cut out of them. That's part of the problem with the process. What was your role, with respect to the memos out of OLC, on waterboarding.

WRAY: So, senator, I have no recollection. And, as I said to Senator Feinstein, I'm pretty sure I would recall of ever reviewing, much less providing input on, comments on, blessing, approving, anything of that sort, any memo from John Yoo on this topic.

Later, in 2004, when I was assistant attorney general, the criminal division did have a fairly surgical role, which was not, underline the word "not" -- in approving any particular interrogation technique, but merely commenting on a public, general interpretation memo, by Dan Levin, about what the statute -- what the statutory standard means. And that opinion, as you know, was rescinding prior interpretations that it had occurred, and again, I had not seen.

I did not think it was appropriate for the criminal division to be playing any role in weighing in on particular interrogation techniques because, I think, the criminal division's role is, and we showed it through investigations we brought, to be investigating and prosecuting cases where people go too far in interrogation, not to be providing legal advice. WHITEHOUSE: Like United States versus Lee, which was the case out of the Fifth Circuit, where a Texas sheriff was convicted of federal crimes for doing exactly that.

All right. Well, I'll follow up for the record with what your assessment is of why John Yoo mentioned your name. But there's no point. I've got two minutes left, and I'd like to get on to a couple of other things.

There was a famous confrontation between the Department of Justice and the Bush White House over the warrantless wiretapping program, back in 2004. Acting Attorney General Comey and Director Mueller both had prominent roles in that. You were in the department at the time. There was a group of people who indicated that they -- if it was necessary to do resignations, that they would be a part of the group that would resign if the department's views were not met by the White House. Were you in that group? And do you have any recollections of, exactly, what took place? Any episode in which you made that clear?

WRAY: Yes, I was one of the people who said he would resign.

I was not read into the program at the time. So, my recollection is that I had a conversation with then Acting Attorney General Comey, who shared with me, not the classified contents of the program, but that there was an ongoing dispute about a particular program that was constitutional and legal in nature, and he explained to me some of the people who were read into the program, who all felt the same way he did, and their willingness to resign. And knowing those people, having worked side by side with those people, and knowing that these were hardly shrinking violets in the war on terror, there was no hesitation, in my mind, as to where I stood. And I stood with them. And I said, "I would -- want you to let me know if you guys get to the point where you think you have to resign, because I'll resign with you."

WHITEHOUSE: Last question.

Congress has oversight responsibility over the FBI. Congress also has an obligation to but out of the FBI criminal investigations for very good reason. Yet, in our oversight responsibility, it's important to make sure that cases aren't being tanked for whatever reason. And so I'm interested in what you think the appropriate questions are for members of Congress to ask about an investigation.

For instance, is it appropriate to ask if agents were ever assigned to a matter, and if so, how many, without getting into the details? Is it appropriate to ask if any investigative work was done, if there were any subpoenas, any documents obtained, any interviews done?

Is it appropriate to consider whether the department's process for following a particular matter, like a matter involving a public official, for instance, has special base-touching that has to happen at various places? Whether that actually took place?

Is it legitimate for Congress to look at the process of a criminal investigation, without going into the substantive evidence, to assure itself that a good job has, in fact, been done, that an adequate job has, in fact, been done, as in the case of the Lerner investigation, where quite a lot was disclosed about what had, in fact, been done?

WRAY: Well, senator, I do think that the committee has a very important oversight role that needs to be respected. Obviously, investigations need to be ensured that they're not jeopardized, information isn't compromised, those.

I think they're -- in my experience, there are usually ways to work through some of those issues. The particular examples that you gave, I'd have to think through each one...

(CROSSTALK) WHITEHOUSE: OK. Let's make that a question for the record because my

time is expired. I appreciate your time here and I wish you well, as I said.


WRAY: Thank you, Senator.

WHITEHOUSE: Thank you, Chairman.

GRASSLEY: Senator Sasse?

SASSE: Thank you, chairman.

Thank you, Mr. Wray, and thank you to your family. Thank you for your willingness to serve again. Sir, there's a crisis of public trust in this country. Obviously, this institution has about a 12 percent approval rating. Over the last four decades, we've gone from a net average of about 50 percent public support from most of our institutions, to about 30 percent.

If you're confirmed, you'll have an important responsibility to help rebuild public trust in the bureau. I want to ask you a series of questions about that.

But to begin with, why do you think the FBI director has a 10- year term?

WRAY: I think the FBI director has a 10-year term because there is a judgment made that the role of the FBI, and the role of the FBI director, needs to be one that is independent of partisan politics.

In other words, 10-year terms specifically contemplates that there could, and almost inevitably would be, changes in administration during the course of the tenure. And unlike other presidential appointees, the theory is, I think, rightly, that the FBI has both a criminal law enforcement and an intelligence role that, sort of, transcends political policy positions and needs to be, kind of, kept apart and above from that, and to endure through changes in administration.

SASSE: So, what kinds of conditions would it make sense for an FBI director to be fired under?

WRAY: Well, if an FBI director engaged in misconduct, certainly, that would be a situation. And FBI director's -- nobody's above the rule of law. And an FBI director who doesn't comply with the law should be treated just like anybody else.

SASSE: And when you unpack this concept of independence, because it's critically important that the bureau and its law enforcement functions and its investigative functions not be politicized. And yet, we have three branches of government. So, ultimately, the legislative and the executive branches, the two that are most relevant, at this moment, are accountable to the people. So, there is a boss of the FBI director. But it's not supposed to be

direct political accountability. How do you conceive of, if you're confirmed, who your boss is, when you're the FBI director?

WRAY: Senator, it's the right question, of course. It is true that the president is the head of the executive branch and the attorney general is the head of the Justice Department. And the FBI is both part of the Justice Department and part of the executive branch. I think the independence, when we talk about independence of the FBI, what we're really talking about is not structural or organizational independence, but independence of process.

To me, the FBI needs to be able to follow the facts and follow the law wherever and to whomever they lead. It's a process question about how they go about investigating. That would be my commitment if I was FBI director, and that's a different kind of independence than an org chart kind of independence.

SASSE: So, could you state again -- you've said it here, and it's obvious from your time in the Justice Department in the mid- 2000s. And you've said here, today, that you can imagine circumstances where you would resign. I think it's critically important. When this hearing started and you stood there and you put up your right hand and all the camera clicks went on.

People know that oaths matter. And when you're taking an oath, you're saying, ultimately, that it's the Constitution that you serve, and that the legislature passes laws, the executive branch executes them. But the bureau's role in the execution of those laws is not to be a politicized or a political function.

I think the American people need to hear you, clearly, define the circumstances under which you would resign. Can you help us understand, when you're restoring public trust in the bureau, how do you understand if somebody is trying to politicize the work and the decisions that you're supposed to make as director of the bureau?

WRAY: Well, first, Senator, I would say that former Attorney General Griffin Bell, whose name has come up several times already, today. One of the first things he taught all of us about public service positions, especially one like this, is that you can't do a job like this without being prepared to either quit or be fired, at a moment's notice, if you're asked to do something or confronted with something that is either illegal, unconstitutional or even morally repugnant. And you have to be able to stand firm to your principles.

I've heard many people describe me as understated and low-key. My kids would describe me more as just boring. But no one...


SASSE: There's some head nodding in row one.

WRAY: Exactly.

SASSE: Keep going. WRAY: I don't want to look back, but no one should mistake my low-key

demeanor as a lack of resolve, as some kind of willingness to compromise on principle. Because anybody who does would be making a very grave mistake.

Now, my commitment is to the rule of law, to the Constitution, to follow the facts wherever they may lead. And there isn't a person on this planet whose lobbying or influence could convince me to just drop or abandon a properly predicated and meritorious investigation. SASSE: You've unpacked a little bit the distinction between investigations and prosecutorial decision making. But I'd like to tease out a bit more of that. Can you help the American people understand where the bureau's responsibilities end and the Criminal Division or the deputy attorney general's office or main Justice's responsibilities, kick in in decision making? And how does that work on cases that are below the purview of the director on a day-by-day basis? And on cases where the director is directly involved? What's the line between investigation and prosecution?

WRAY: Well, I think the agents -- whether you do it at a line agent level like when I was a line prosecutor, or at a midlevel supervisor level, or an upper management level. The basic construct is the same. The FBI is doing the investigating, the fact finding, the accumulation of whether or not there is sufficient evidence of a crime to recommend bringing a prosecution against somebody. But the decision, the exercise of prosecutorial discretion, is made by the prosecutors who are trained as lawyers, who are mindful of departments' policies and procedures about charging decisions.

In my experience, it's less of a line than -- in the best practical examples there's a partnership between the agents and the prosecutors working together, both in the investigation stage, where even though the FBI has the lead, prosecutors can often be very effective in participating in the investigation.

And then the best agents that I ever worked with didn't just hand it off to the prosecutor at trial and say goodbye. Even though there was a handoff and the assumption of greater responsibility by the prosecutor, at trial, the best agents I worked with sat side-by-side with me at the counsel table when we tried the cases.

So, there is a shift of responsibility in the system. But again, it's a team effort. And I think that's the way it should be approached.

SASSE: And, obviously, there are not limitless resources. So, at some level, you as the director are going to regularly going to have to make prioritization decisions about counterterrorism investigations versus cyber investigations versus violent crime investigations, public corruption, et cetera. Lots and lots of really important missions that the bureau has.

When you're making those prioritization decisions, when would it be appropriate and when would it be inappropriate for main Justice and beyond, and, I mean, particularly, the White House, to be providing direction about FBI priorities and mindshare and budget investments? WRAY: Well, I don't think the White House should be playing a role in

prosecutorial decisions, period. From a programmatic perspective, which gets reflected in things like the budget that's submitted to Congress, more effort can be focused on particular types of cases.

You know, there could be a period where we focus more on corporate fraud. There could be a period where we focus more resources on gun crime. There could be a period where we focus more resources on counterterrorism.

So there is an effect on the scarcity of resources, and the ability to prioritize certain investigations in that sense, and I think that's a process that occurs with input from law enforcement and the FBI, with input from the department. And at the end of the day, the -- there is a president's budget that gets submitted to Congress for that process.

SASSE: So I think I hear you offering a particular, versus a general distinction, and I want to make sure I'm not putting words in your mouth.

On an annual basis, there are going to be decisions made around budgeting, for instance, about those programs. But it's never appropriate for the White House to be providing -- or political officials to be providing specific direction about specific cases that you're investigating?

WRAY: That's my view.

SASSE: We're nearly at time, and I'm going to stay for a couple more hours for whatever extra rounds we have, and I want to drill in to cyber more deeply there. But first, one specific connection to your last line of questioning. You -- do you believe that the Russians were involved in trying to influence the 2016 election?

WRAY: Well, Senator, as I said before, all I've seen is the public intelligence community assessment. But I have no reason to doubt the intelligence community's assessment. I haven't seen all the rest of the information, but -- but what I've seen, I have no reason to doubt it.

SASSE: For those of us who read intelligence on a daily, or near daily basis, this is indisputable. It's also indisputable that in 2018 and 2020, they're going to be back. And the main tool that those who want to destroy American institutions have is not by creating new problems, but by -- by trying to exploit and exacerbate existing problems. And American public distrust is one of the most valuable targets the Russians have to try to divide us against ourselves. And you're being considered to lead an agency that's going to have to play a front-line role in restoring that public trust. You've got a big and high calling, and many of us are grateful at your willingness to serve.

Mr. Chairman, I'll reserve my questions for the next round.

GRASSLEY: I might add, before they get involved in our '18 and '20 elections, they're going to be involved in the September elections in Germany. Chancellor Merkel already knows that.

Before I go to Senator Klobuchar, put in the record, "letter of support for Mr. Wray from former DOJ officials, a letter was signed by many former senior DOJ officials from across the political spectrum, including a number who worked in the Obama administration. They wrote that Mr. Wray, quote, "...has the judgment, the integrity, independence, experience, and commitment to the rule of law to be an excellent FBI director." End of quote.

And we also support from Mr. Wray's former boss, Larry Thompson, who served as deputy attorney general, Bush administration. He wrote that Mr. Wray's, quote, "...dedication to public service and our great country is deep, admirable and unparalleled." And he praised Mr. Wray as a strong -- quote/unquote, "...strong, independent professional." These records will be included without objection. Senator Klobuchar.

KLOBUCHAR: Thank you very much, Mr. Chairman. Thank you very much, Mr. Wray. It is good to see your wife, Helen, there, and your kids as well. Our daughters are friends. And I learned from non-FBI sources that your daughter flew in on a red-eye tonight, and arrived at 4:30 a.m. And the fact she's kept her eyes open through this entire hearing is a testament to her devotion to her dad.

And on a more serious matter, I know you to be a decent person, and a good and devoted dad. So I think that's a pretty good start here, and I thank you for your answers, particularly the recent discussion you had with Senator Sasse about the irrefutable evidence that you've been able to see on the Russian influence in our election, and the answers you've given the other senators.

And I thought your opening statement reflective of the fact that you see the gravity of this moment in time, when you're coming in to lead an agency, and be nominated to lead an agency of people who put themselves on the front line every day, without fear or favor. And we owe it to them, but we also owe it to this country to bring back the trust that Senator Sasse has talked about in terms of the -- this government in Washington.

So my first question is, when you ran the Criminal Division in the Justice Department, did you ever receive a request from the president or other high-ranking officials to just let a case go?


KLOBUCHAR: And I think you answered one of my colleagues, if the president asked you to do that, I think you said you would try to talk them out of it, and if a president would not rescind that request, you would resign, is that right?

WRAY: I would (inaudible) to all appropriate action, which would include potentially having to resign, yes.

KLOBUCHAR: OK, and from time to time, probably in your career, when I was a prosecutor for eight years, I would sometimes get comments from people: "Oh, that case. Don't do anything about that." Whether it be at a dinner, or someone calling my office, and I had a process where I would tell my deputy. I would most likely not tell the prosecutor working on the case -- I had 400 people -- unless I thought for some reason they needed to know that. But if I did, I would tell them, "This cannot at all influence what you're doing."

And I think you know that this happens, not just to the FBI director, but it happens to people underneath you. And so that's why I appreciated your answer about the process. You have to have processes in place, because it's not just the FBI director that get those calls. Do you want to respond to that?

WRAY: Yes, Senator, thank you. I -- I think you said it very well. To me, process is so important, and the -- and the reason process is so important is because people need to have confidence in the outcome. If there is a decision to charge somebody, people need to have confidence that the process that led to that was fair, impartial, and consistent with the law.

Likewise, if there's a decision to close an investigation without charges, people need to have confidence that if there was something there, the process would have found it.

So process is terribly important, and I think the tone needs to be set at the top. And I will say that having worked with lots of FBI agents, the thing that is distinctive about all of them is that they will follow the facts, and the law, wherever it takes them. And sometimes people don't like it. But that's what makes it such a beautiful thing to behold, if you're a prosecutor.

KLOBUCHAR: Right. How about your view of working with local law enforcement? We have a very good group in Minnesota, our FBI there. They stepped in, a special agent in charge, Rick Thorton (ph) and his group stepped in when we had the stabbing at the shopping mall this last fall. Worked very well with our local law enforcement and our chief. Do you want to briefly comment on your views on working with local law enforcement?

WRAY: Thank you, Senator. I -- I think working with state and local law enforcement is -- is hugely important, especially because there is so much on the FBI's plate right now, that there needs to be partnership between the FBI and other federal law enforcement agencies, and state and locals, and sort of a force multiplier way. There's all kinds of support that FBI can provide to law enforcement, whether it's partnering on investigations, training... The National Academy is a great thing that, you know, when I talk to people in state and local law enforcement, they consistently praise.

I'm gratified by the support that has come in over the last several days from lots of state and local law enforcement organizations, and I think that's just a terribly important relationship. Because the reality is, the threats we face are way too many for one agency, much less the FBI, to do all by itself.

KLOBUCHAR: Yeah, I think Director Comey thought that way as well, and I had respect for how he worked with local law enforcement, and I appreciated your words about him. From time to time, there have been proposals to split up the FBI's

criminal and national security missions, and remove matters like counterterrorism, counterespionage, from the FBI's jurisdiction, to kind of spin them off. Some have even advocated the creation of an American version of -- of the way the Brits handle this. And when this was discussed in the early 2000s, and FBI Director Bob Mueller rejected it. He said it would be a step backward. Do you agree with his assessment about this type of proposal? WRAY: Senator, I remember being fairly actively involved in that issue back in the early 2000s, working with people at the FBI. I thought it was a terrible idea then. And it's hard for me to imagine circumstances have changed that would make me think it's a good idea now.

I think the one thing we learned from 9/11 is about the danger of walls between criminal law enforcement and intelligence. And the idea of now splitting things up, and creating new walls strikes me as just not the right way to go about it. And my limited understanding in 2017 is that in the time that has passed since I left law enforcement, that other foreign agencies have started moving more in the direction that we have. I -- I have great respect for our colleagues in the U.K. and their system, but I don't think that's the right model for us.

KLOBUCHAR: Thank you. Election infrastructure: Senator Sasse raised this a bit. When you look at what happened in this last election, what may happen going forward,


one of the jobs of the FBI is to coordinate --