guest on this week's q & a. >> if you're in government you're dealing with the daytime

tyranny of the in box. one of my jobs was to represent the secretary of defense, working through the issues, developing options for the principals and the president. a lot of crisis management focus. when you're in a think tank, your whole utility is not trying to second-guess the policymaker on the issues of the day but help to do some work to raise their days, help them look over the horizon to see what are those issues i'm going to confront a year from now, five years from now, ten years from now, and how do i think more strategically about america's role in the world? >> former secretary of defense and co-founder for the center of national security, michelle flournoy on its creation of defense policy issues. sunday night on c-span's q & a. 40 years ago, the watergate

scandal led to the only impeachment of an american president. american history tv visits richard nixon as it considers impeachment of the president and the charge of abuse of power. >> what you have here are questions about what the framers had in mind, questions about whether the activities that had been found out by the committee and by the senate, watergate committee, were, indeed, impeachable, and thirdly, can we prove that richard nixon knew about them and even authorized them? >> watergate 40 years later. sunday night at 8:00 eastern on american history tv on c-span3. and we're live on capitol hill this morning on this friday. david seamus, the director of the white house office of outreach is testifying before the house oversight committee.

he was to testify last week on the same committee but he didn't show up. the white house council says mr. seamus is immune on matters relating to his official duties and will not appear. expected to testify, u.s. special counsel and associate former counsel to president george w. bush. we expect this hearing to get under way in just a moment. both the committee chair, darrell isa, and the ranking member right there on your screen, elijah cummings, are both in the room, so we do expect it to start shortly.

again, the house oversight and governor reform committee waiting this morning to hear

from david imus. he has been called to testifyonn the office's operations today. he was supposed to testify last week in the same committee, but he did not show up. you can see committee chair darrell isa on the right, and elijah cummings both there ready to get the hearing under way, but if we get a shot at the witness table, none of the witnesses have appeared. so we're not sure exactly what is going to happen here. roll call has this about the hearing. committee chair david isa is offering to have white house political chairman david seamus testify by deposition rather than congressional hearing today with darrell isa planning a vote today to reject the claim for immunity from subpoena for seamus if he fails to show up

for that subpoena. >> we're here to continue a hearing that began july 16, 2014 called sno"white house office o political affairs, its supporting candidates and campaign fundraising and appropriate use of a government office." the purpose of the hearing is to gather facts about the white house office of political and strategic outreach. i'd like to note for the record mr. david seamus, director of the office of political strategy and outreach and assistant to the president is, in fact, not present at the hearing today. mr. seamus was invited to testify to give committee members and the american people an opportunity to hear from the head of an office that has, under several previous administrations, misused government resources for political purposes.

despite being under subpoena, mr. seamus failed to appear at the hearing on july 16. i gave him a second chance to appear today to fulfill his obligation arunder a lawful subpoena. at this point i'd like to put on the record the cooperation of the white house on this matter. the white house has informed my staff for the first time this morning at 7:30 a.m. that mr. simas would not be present at today's hearing. we continue to work with the white house staff on proposed ways to resolve this, however, today's failure to appear is noted for the record and is not excused. mr. cummings, do you have any remarks? >> mr. chairman, a brief statement. just one question. i just wanted to highlight the

letter, the last accordancorres that we put in the record for the members. i want to draw your attention to it, and it's very brief, only three or four sentences. this is dated july 24, 2014. i received your letter of today's date a little after 7:00 p.m. this evening -- that was yesterday -- my staff has reached out to yours to discuss these issues in good faith. i trust they will report back to us on the progress. it would help if you were to withdraw the subpoena to mr. simas as we discussed whether we can reach an appropriate accommodation. sincerely, w. mcneil wilson, counsel to the president. the inquiry of this is very brief, mr. chairman. mr. chairman, before we proceed any further, i just want to confirm what we talked about already. we understand that we are doing -- what we're doing this morning so our members will be clear, we resume this hearing this morning even though we knew mr. simas was not going, and we

won't have ms. lerner's testimony. my understanding is we continue on to the business meeting in spite of mr. simas not appearing. i have a statement i would like to give, and i'm happy to wait until the business meeting is given. >> if you would like to give it now, you may. >> no, i'll wait. thank you. >> mr. couple mipummings, just response, as you know, we have an inherent obligation of oversight. the question before us today is a very straightforward question. are we doing oversight? is it our right and our obligation to do oversight? i believe it is. there is a long precedent that

when this committee asks for someone appropriately and they are not made available and we believe, the chair believes, we need that person, and in the case of an office of only four people, the head is not a big ask to be the most appropriate that we expect that person to come. the record will show that we have negotiated and attempted alternatives, including discussions about possible transcribed interviews and other non-public ways to get the same information. however, the subpoena is, in my opinion, inappropriate to lift because ultimately lifting the subpoena implies and would mean that he may not come. it is the considered opinion of this committee chair that we have an absolute right and obligation to investigate not any wrongdoing, no predicate or claim of wrongdoing, however, this is an office that has a

past. that past, under both republicans and democrats, have been questioned, and there's been an odd situation of saying it was wrong but keeping it for three years. shutting it down and reconstituting it smaller. as you and i spoke, and if you don't mind something we said in private, the question that came from the briefing which i was appreciative that the white house did give us, was that this office controls only the president and first lady, and it does not control members of the cabinet. as the earlier proceeding made clear, we have an obligation to look at all government officials whether covered by the hatch act or not and find out whether or not they are doing political activity with government money and government time unless explicitly exempted. it is the considered opinion at this time of the committee and

ms. lerner, the counsel, that the four people whose purpose it is to schedule the president and the first lady who are exempt from the hatch act is, in fact, potentially a necessary office. because this office was closed by this president as wrong, and if you will, unnecessary operated for three years without finding out if those four individuals are necessary and how their use of our taxpayer dollars are being used is a question. and when we reconvene in probably a second hearing after mr. simas appears at the first hearing will be to ask the second question. if the office only controls the president and the first lady and there are hundreds of potential cabinet, subcabinet officers who then are controlled to go to places where they meet and

participate over political ti t activities or are scheduled to be in districts of senators at times when it might be beneficial for their campaign. so literally fundraising or less literally supportive of candidates' reelection, who is scheduling and how are they scheduling? this was intended to be a short -- and i hope it still will be -- oversight of a relatively small but controversial office of oversight even without a predicate of wrongdoing. i do want to make sure the committee understands on both sides of the aisle that we were going to ask the question of the president and first lady and we believe we will get satisfactory answers. we must then move on to the cabinet, and as you know, under this president, not uniquely -- it happens with past presidents -- we've had two cabinet officers who did, in

fact, commit hatch act violations. that tells us that we have a control responsibility with a predicate, an inherent predicate, for making sure that the organizational systems for cabinet officers and the like is covered. i claim no predicate for the office of the president. i claim oversight. and i believe you would support me in that principle. i think we do have a predicate in the case of the cabinet, but we have no ongoing wrongdoing accusation about the cabinet, we simply have a history under presidents of both parties that this has been an area of concern and past violations. so this has been communicated back and forth with the white house. they understand this is notaling a scandal at any level. but, in fact, doing the oversight that we are pledged to do and that cannot be done by the executive branch can only be

done by our branch. so i look forward to our remarks when we open for the business meeting. i take it very serious that we are going to likely find that the committee believes mr. simas has a responsibility to be here, and once again we are going to insist that he respond in the subpoena either in its original form or if we can reach a mutually agreeable accommodation, that accommodation. >> thank you, mr. chairman. i thank you for what you just said, and what you said is accurate as to what our discussions have been. i want to make that very clear. with regard to -- so that the public and the committee can be clear, so there are no -- and i realize that you're not saying that there needs to be, but you're saying that, if i understand it, to your knowledge, mr. simas has done

nothing wrong and his office has done nothing wrong? >> we're accusing neither the president or this four-person office of any wrongdoing. there is a past history that you and i are both aware of that caused an opinion that needed to be closed and the closing of the office. so inherently, when an office is closed one might say in scandal, and it's a multi-presidential scandal, and then reopened, it is probably inherently the most important oversight we could do and say, in the past this didn't work properly, how do we know it will work properly going forward? i believe the american people have an obligation or we have an obligation to make sure we spend money well and that the american people have a comfort level. but again, you're exactly right, mr. cummings. i allege no ongoing wrongdoing, but it's more appropriate when you have a history like this to look at it than the average

four-person office in the white house. >> there were two cabinet members that you mentioned, and, of course, we would agree that those hatch act offenses took place long before this incident -- before the opening of this office. >> that's correct. although i believe one of them likely took place before the closing of this previous office. and as you and i talked about in the white house briefing, they told us they are not controlling through this office the activities of members of cabinet, which actually raises the concern that i think you and i are going to have to mutually work on is if not this office, then who do we look to to make sure that these inherent calls from a party office, currently the democratic party but it could become the republican party at some day in the future, who allows those? who coordinates them?

who spends a government dime when that call comes in, scheduling or talking about why the secretary of blank should go support the congressmen of what? >> so as i hear you, bringing in mr. simas in one respect is sort of trying to create a prevention, do something to prevent something that could possibly happen in the future based upon what happened under previous administration? is that what you're trying to say? >> not only that, but i think if a sens -- in a sense, and i hope we all look to this as we look at this office and others, if congress looks at support and says we see nothing wrong with support, and the system is

executed and something bad happens, then it's not a scandal, it's a need for further reform. and i'll give a current example. we voted -- we broadly voted in 2008 for a law on immigration that now is at the center of some problems. and we as a government are looking to fix something, but it isn't a scandal that people are taking advantage of 2008 law. the american people, i think, currently understand the immigration question. it is simply something we looked at, we voted for and now we see that. if we look into these various activities and we see nothing wrong in the system as explained to us and in what we're told is happening, then, in fact, in a sense we add to the ease with which the administration and future administrations can feel this is an appropriate way to operate. it's one of the reasons that we've been communicating with carolyn lerner, it's one of the

reasons that we want her input, because in the past, they issued a scathing report finding that under both president bush and in an ongoing sense through 2011, the administrations of those two presidents were using an office that was inherently flawed. and that's what we're making sure we look at before this goes much longer. >> thank you. just one or two more questions. mr. chairman, you know, when i read the letter that you wrote yesterday, i think it was, there were two new issues that came up with regard to the president going on trips, official trips, and then doing some campaigning, if i remember correctly. and i had not seen those allegations before. the reason why i raise this is because -- >> and mr. cummings, if you could, it's not an allegation.

it's an observation. all presidents do both, and this office's coordination is a very simple question of it, so i appreciate that. >> and i guess what i'm concerned about is -- two things. one, it seems as if -- i just wonder when the questions end. in other words, this was a question that was presented yesterd yesterday, and mr. simas -- i'm sorry, mr. eagleson's response was, well, we'll continue to work with you. and it seems like -- i'm just wondering whether there is a constant movement of the goalposts and the public needs to know that our staffs met with the white house for 75 minutes and they answered just about every question. and then some other questions

came up, and i know that things like that happen. but i guess at some point, where does it end? but more significantly, you understand the concern of the white house? and it's not just this white house. there will be future folks who occupy the white house who will be of the republican party, and we may be up in heaven somewhere. but -- somebody laughed, but anyway. >> what you're implying is this isn't heaven? >> i guess my concern is, the white house's concern -- and the republicans, too -- certain advisers, that they have this freedom to -- >> the gentleman's point is a good one, and i want to make sure we come to an

understanding. oversight is ongoing. and we are not looking to ask about on a trip what did the president say or the communication. we understand the nature of that advice. and we're not asking why did you decide in consultation with the president to have the president do x and y? the organizational questions, which included one in the letter, are how do you decide? what is the system? and how do we know, again, that dollars paid to federal employees, even though they're supporting community efforts, that they're absolutely necessary and the best positive use of the president's time and money and the people's time and money simply because we have a unique situation with the president that we don't want him going down to the democratic national committee for briefings.

we don't want the first lady out and about or having to go back ask for and forth to the residence. these are accommodations unique in that we're using taxpayer dollars in support of campaigns but only because of the unique security considerations for the president. so for that reason, the process is, in fact, important. but we're not moving the goalposts, to be honest. we have a lot of questions. i don't know that all have been asked. and i'm absolutely positive that if we go through this process, many of your members will have additional questions, and we would want to make sure that all relevant questions, all questions related to the american people's taxpayer dollars and the necessity of this are answered. so i look forward to eventually having that dialogue for all involved. this meeting, this committee stands in recess.

>> it's estimated that welcome back at 10:15, folks. 10:15.

remarks from chair darrell issa and elijah cummings in this brief gathering to hear from the office of political oversight and outreach, david simas. he's been offered to testify by deposition. it's unclear whether mr. simas will respond in that way. this was to be his second appearance on capitol hill before this committee. he failed to show last week when he was called.

the white house council has said mr. simas is immune to testify about matters relate to go his official duties and will not appear. the company, as you heard, going into recess for now. they will return for a business meeting at about 10:15 eastern. we're likely to hear more about this during today's white house briefing. that is said to begin at 1:00 p.m. eastern and you'll be able to hear that and watch it on c-span2. the house judiciary committee's task force is holding another in a series of hearings this morning regarding the overfederalization of the criminal justice system according to a new report from the congressional resource service, there were 103 statutes created, making 500 statutes with criminal hearings. veterans issues remain a hot

topic on capitol hill. senate democrats spoke briefly with reporters yesterday to address the status of the bill to improve the health care for veterans and their services. members of both the house and the senate met earlier to negotiate differences between the respective bills. senator sanders has stated he has objections to congressman miller's plan but he says he's hopeful about the administration. >> thanks very much for coming. and i have with me a number of colleagues from the senate committee on veterans affairs. it is no great secret to the american people that the congress today is dysfunctional, and despite enormous problems, we are getting virtually nothing done for the people of our nation.

my strong hope has been, and remains -- and remains -- that on this issue, the need to address the very serious problems facing the veterans of our country and the veterans administration, that at least on this issue we can overcome the dysfunction and the partisanship that has done so much damage to our nation. in the last four years, some 2 million more veterans have come into the va for health care. primarily because of the wars in iraq and afghanistan. in addition, the veterans administration is treating an aging veterans population with many folks having serious medical needs. to give you just one small example of the challenges facing the va -- and this is really quite amazing. some 500,000 men and women have

come back from iraq and afghanistan with either ptsd or traumatic brain injury today. today over 49,000 veterans are getting outpatient mental health appointments. today, tomorrow, monday, tuesday, wednesday, every day. that's just outpatient mental health appointments. everybody knows that there are unacceptably long waiting times for tens of thousands of veterans in many facilities throughout our country. and everybody with common sense knows that to accomplish the goal that we are striving for, to provide quality health care to our veterans in a timely manner, the va needs more doctors, needs more nurses, needs more medical personnel, and in many, many facilities needs more space. now, congress asked the new

acting secretary of the va, sloan gibson, to assess the needs of the va. we said, sloan, you're in there, tell us. what are the needs of the va? what he has told my committee, and i understand today has told the house committee, is that, in fact, the va needs more doctors, more nurses, more medical personnel and more space so that we do not, two years from now, find ourselves in the exact same place that we are today. but it's not just sloan gibson. yesterday 16 major veterans organizations, these are the people who in many ways know the va better than anybody else, because these are the folks going into the va. 16 major veterans organizations, including the vfw, the disabled american veterans, the vietnam veterans, the paralyzed veterans of america, the iraq-afghanistan veterans of america and many

others, they made the same exact point. and the point that they made is, yes, we have to provide emergency contracted care to private facilities, community health centers, whatever, but we have got to strengthen the va so they can provide quality care in a timely manner. these organizations, and we also believe that veterans living more than 40 miles away from a va facility should be able to go to a private doctor. but the issue is whether or not va is going to have the doctors and nurses and space that they need. now, as all of you know, legislation passed here in the senate, overwhelming vote, bipartisan vote with the strong help of senator mccain by a 93-3 vote, that legislation, according to the cbo, was going to cost $35 billion. at the same exact time, the

house of representatives passed their legislation. that legislation was estimated to cost $44 billion. now, we have been working very, very hard on this legislation. let me tell you something, i have been accused by some of moving the goalposts. well, i guess i have. we have moved the goalposts to a much lower and more realistic number. the proposal that we are bringing forth would cost less than $25 billion. that's $19 billion less than what the house passed, $10 billion less than what we passed. and our legislation addresses in a significant way exactly what the veterans community says that we need to do. now, i have been working, and we all have, with our republican colleagues in the house led by jeff miller, chairman of the house committee on veterans

affairs. we have put good faith offers on the table again and again and have tried to meet the republicans more than halfway. but i am sad to say that at this point, i can only conclude with great reluctance that the good faith we have shown is simply not being reciprocated by the other side. just as an example, last night at 10:00 in the evening, the co-chair of the conference committee, mr. miller, announced that there was going to be a so-called conference committee today. and the purpose of the conference committee was to hear his proposal. today just about an hour ago, i received a letter from mr. miller, one-page letter, in which he states, i am -- quote, i am asking you to join me in con ve convening the conference committee monday, july 28, 2014,

on a formal vote on this proposal, end quote. in other words, what he is saying is, take it or leave it. now, every sixth grader in this country understands that the united states congress consists of two bodies called the u.s. house of representatives and the u.s. senate, and every textbook, civic textbook, talks about the needs for the house and the senate to come together on legislation. that is the way it has historically been done. it is not somebody saying, here smi bi is my bill, come to a meeting, vote for my bill, end of discussion. that is not democracy. that is not negotiations. so i say to mr. miller, trust me, i very much will be back in vermont this weekend. believe me, i would. but i am prepared to be here this weekend, i'm prepared to be here tomorrow evening to start serious negotiations in terms of

how we work out our differences so that, in fact, on monday or tuesday the house and the senate can pass some serious legislation. let me -- who is here, patty? want to go? or john? >> thanks, bernie. bernie pretty much laid it on the line. i think if we're going to -- access is the big issue in the va. it is the issue we heard about when the va thing blew up in arizona. it is the big issue around this country. if we're going to address the access issues, it's going to require the va to be able to hire more doctors, more nurses and address the facility concerns that bernie just talked about. i was not here in 2002, but i would be willing to bet anybody that's here that they did not talk about offsetting the wars in iraq when they decided to go in and fight that war. taking care of our veterans is a cost of war. we need to do right by them. they've earned these benefits. we need to come together as a house and a senate, we need to

depoliticize this and we need to do it for our veterans. the fact is, it's going to cost some money. we need to do it. >> i want to thank our chairman, and i believe like all of us do, that when it comes to caring for our nation's heroes, we cannot accept anything less than excellence. and there has been major bipartisan efforts in both the house and the senate to move legislation addressing the problems we know are plaguing our men and women in uniform. in fact, as chairman sanders said, six weeks ago the united states senate voted 93-3 to pass a bill to reform the va system. so there is no reason republicans and democrats, house and senate, can't come together on behalf of our nation's heroes, and i'm very disappointed it hasn't happened already. but there's still time, and right now there is more policy that we agree on than we disagree on. i would like to remind all

members of our committee, one of the most important things that is agreed on is the commitment that we have made not only as a congress but as a nation. when we sent these brave men and women to war, our service members have sacrificed so much, and we need to make sure our country is there for them when they come home no matter what. no matter what. it is clear there is some good and reasonable ideas on the table right now for how we can get this done. but i'm concerned that the proposal that's been put forward by house republicans this morning is moving us in the wrong direction. so i hope our republican counterparts can step back, look at why we are really here and work with us to build on the bipartisan momentum that we saw in this congress just a few weeks ago to truly address some of the immediate accountability and transparency concerns plaguing the va and fix its deep-seated structural and

cultural challenges. the clock is ticking and our nation's veterans are waiting. >> thank you. the whole premise behind a conference committee is that there are co-chairs. a chair from the house side, the chair from the senate side. there is no such thing as one chair, co-chair, unilaterally saying, here's my bill and we're going to take a vote on it. that just isn't the way things should happen. every single state has thousands and thousands of veterans who are calling on us to do the right thing, and remember, just a few months ago, this whole issue of wait times and how we have a commitment to support the veterans to the benefits and health care that they earned and deserve, that was the big news. we should stay the course. i am pleased to be a member of the conference committee. every single state has veterans, and in hawaii, the senate bill, which was practically passed unanimously, has items that helps our veterans in hawaii to

create a new clinic in the community, to work with native hawaiian health care corporations so we can expand the capacity for veterans' care. there are other items for every single member of both the house and the senate. so we need to get on with the business at hand, and that is to keep to the promise that we made to our veterans and not to be fooling around with unilateral take it or leave it provisions. thank you. >> last month the president of the united states nominated a republican from my state, bob mcdonald, to be the secretary of the va. he was confirmed and he was passed out of committee yesterday unanimously out of the veterans committee. he got support from both parties. he was hired by the president to do what our legislation in the senate does. he was hired by the president to support what the veterans service organizations from the legion and the vfw to the dav to the paralyzed vets to the polish american veterans and every

other organization wanted. that is primarily three things. it's bring accountability to the va, number one. number two, it's to help those veterans who have had to take care of those veterans outside the va if they had a wait of 30 days or longer, and third, it's to scale up the va. that means nmore doctors, more nurses, more physical therapists, more expansion of outpatient clinics, more expansion of veterans hospitals all over this country. the president of the united states did not hire bob mcdonald, we're not going to confirm bob mcdonald to be president and ceo of a private hospital. the veterans administration, 6.5 million veterans got care last year. if you're in the va system, you're getting good care. we need to help make sure that everybody has access. that's what this legislation will do long term. that's why it's so important. >> just real quickly, my view is

this letter has a typo. the typo is the reference to this proposal. it should be the proposal. the purpose of a conference committee is to confirm, to have a conference. and to say my way or the highway, take it or leave it, is really a disservice not only to the congress but to our veterans. so i am actually more saddened than angry that we've come this close to an agreement and now seem to be veering away from it. i want to thank chairman sanders for his great work. senator murray before him as chairman of this committee which has been a bipartisan group seeking common ground. the fact of the matter is we have so much more in common than in conflict. we have in common a commitment to our veterans on both sides of

the aisle, both sides of the congress, and we ought to seize this moment, keep faith with our veterans and make sure that we leave no veteran behind. the veterans administration is at a turning point. and time is not on our side. we need to demonstrate that we can be functional if we want the va to overcome its dysfunction. and right now is the opportunity and the challenge to do it. thank you. >> do you have objections -- [ inaudible ] >> of course i have an objection to his plan. essentially, as you heard from all of us, as you know from the veterans organizations, the va today provides good quality

health care for those people who get into the system. and i can tell you, go to vermont and i suspect many parts of this country people will say -- there was just a story in today's paper, television in vermont, va saved my life. that's all over the united states. the problem that we're having is absolutely outrageous wait periods in various parts of the country. and the reason you have those wait periods is we don't have the medical personnel and the space to treat veterans. and that is one of the issues that we have got to deal with, and of course we have to figure out how we best pay for them. dick blumenthal just made the point. you can't talk about negotiating. you can't talk about a conference committee when somebody says i ask you to join me in convening the conference committee for a formal vote on this proposal. that's not the way congress is supposed to work. yes, ma'am. >>

>>. [ inaudible question ] >> i am hopeful that we can come up with an agreement, because at the end of the day, i do hope, and i do believe that every member of the united states congress understands what a terrible thing it would be to turn our back on the needs of men and women who put their lives on the line to defend us and many today who have serious problems. and i believe every member of congress who swore an oath to the constitution understands that. that is my hope, and i am prepared to work as hard as i can to make that happen. [ inaudible ] >> i am more than aware of that. where there is a will, there is a way. if there is a desire to do something. >> you say your bill will cost less than 25 billion. can you provide a little more

detail on what less means? >> somewhere between 23 and 25. how is that? [ inaudible question ] >> "i'm asking you to join me in convening the conference committee for a formal vote on this proposal." this proposal means the proposal he put forth. in the meeting they had at 12:00, he didn't even have a proposal. so my request, again, and i will get on the phone as soon as i'm out of here, is to ask him to sit down with me and with other members. i think senator burr should be there, the ranking members of the committee. let's get this thing. we can do it. >> it sounds as though there is a philosophical side that maybe chairman miller is moving toward

trying to traumatize the va? >> i don't want to get into that. the answer is very simple. when i have said that the v.a. needs more doctors, more nurses, more medical personnel, and more space. they need that. and that's what i'm fighting for. >> what did you have to it say to your republican colleagues? >> i have not yet. it just took place. >> representative miller said it's not a take it or leave it, but it's based on the senate bill. and that he said it was just an offer that is out there that talks tip. >> if that's the case, good.

any honest reading is to come to a conference committee to vote on this proposal. that sounds like a take it or leave it. >> he also said acting secretary gibson and others have mentioned there are vacancies, that they have lots of vacancies for doctors and nurses. in other words, they can't fill those jobs. how can they fill even more. >> that's why they have to get going immediately. what i worry about, and you raise a good question, we have a crisis in terms of the numbers of primary care doctors that are out there for the v.a. and for the private sector. we have a crisis in terms of the number of nurses. that's why these guys have to get moving on this right away. and to delay it makes a difficult situation even more difficult. >> i wanted to say in regards to that question because it is an important question, the number of docs and nurses we're short. there is also legislation out there to remove caps on loan forgiveness, which could make a

big difference as far as recruiting to being odocs to th. >> john is right. what we have in our legislation is to give the v.a. the capability of providing debt forgiveness to medical school students who want to work for the v.a. and also to fill residency positions, as well. that's one way we can bring more medical people into the v.a. all right. yes, sir. >> could you describe why they're having so many difficulties? are the working conditions considered bad by doctors? >> no. the pay is low, but also what i worry about very much is we just don't have enough primary care physicians. there is an estimate we need 50,000 more physicians in the next 20 years and medical schools are not graduating them. so one of the provisions that we put in here is not to steal

primary care physicians from other facilities, but to make sure we go into the medical schools, nursing schools, and offer incentives to get those young people to go into the v.a.. >> secretary gibson's recent request for $17 billion comp pli indicate negotiations? >> no. what he said is you you asked me to take over the v.a.. you asked me to assess the problems that we have and i'm trying to be honest with you. i don't want to come back here two years ago in the same position we are right now. and i appreciate the acting secretary's honesty. thank you all very much. coming up here, the house judiciary committee task force will gather for another hearing the overcriminal sairgs and overfederalization of the criminal justice system. we plan to have it live for you here on c-span3.

also better any sanders talking about the meeting yesterday morning to introduce the proposal to reform the v.a. by providing $10 billion in emergency mandatory funding. here's a look the what skref miller had to say. >> thanks for being here. we have a hearing that is actually going on right now in the house. some of our members will be shuttling in and out. i appreciate the opportunity to get together and the purpose of this is not to make five minute speeches. the purpose is for us to prepts an offer to senator sanders. i'm sorry that he's unable to be here today. but i certainly understand his reasons.

without question, i think everybody will agree that our intent has been from the very beginning and continues to be finish our conference committee work, get something to both bodies so they can vote on it and to the president and have us obviously make our votes before we leave and the house leaves next thursday, one week from today. so everybody in here knows that we have continued to make good faith efforts. we have made movement in the process. there has been a lot of give and take from both sides. senator sanders and i continue to communicate on this issue and we will continue to communicate on this issue. and what i wanted to do is try to bring everybody together and say here is what we think in the

house that we in fact can submit and we don't have total buy-in from the folks on the democrat side. so i don't want to insinuate that they do. but they're aware of what our offer will be. i saw a statement a few minutes ago that i was criticized for saying the senator moved the goal posts. the facts are he did it. he requested from v.a. additional dollars and we got a $17.6 billion add in the middle of these negotiations. when i asked for the senate, for your edification when i asked for additional backup material for the $17.6 billion, what i got was two sheets of paper. and i told the secretary today that that was not adequate.

but we are again pledged to continue to work. i thought it was important since we had not gotten together publicly in four weeks, senator sanders and i serve as co-chairs of this conference. i have a desire to show bipartis bipartisanship. tried to do this yesterday and the senator said he didn't want to do it yesterday. we said how about a b. today and he didn't like today either. but here see what our offer is so everybody understands. b. to he didn't like today either. but here see what our offer is so everybody understands.b. tod he didn't like today either. but here see what our offer is so everybody understands.. todae didn't like today either. but here see what our offer is so everybody understands. today didn't like today either. but here see what our offer is so everybody understands.today didn't like today either. but here see what our offer is so everybody understands. we're prepared to accept title i through title vii of the original bill with a small change to include all 27 leases. the senate only had 26, we're saying ahead the 27th lease into that which is what passed the house last tes. provide v.a. with $102 million

for the rest of fiscal year 2014 to address some of the department's internal funding shortfalls and some of those shortfalls are nonv.a. care, emergency space leasing and improvements to rating fiduciary and appeals work. and how we'll fund it is $10 billion in no year emergency mandatory funding to cover the cost of the senate's choice provisions. this is what cbo scored the bill at was $10 billion. i think this provides a more than solid down payment on the first year of this two year program. and the remaining senate provisions would be subject to appropriations.

approve training of managers, treatment for military sexual trauma. it's basically the senate bill except it's not all mandatory funding. what we said is we would move to the $10 billion, make that emergency mandatory funding with no year limit so we can carry it over you because i think most of us expect that we in fact will not spend $10 billion in the choice portion next year because i think this is the critical piece lems laegislation.

and senator mccain, thank you for working so hard to get this in. it's a very simple straightforward offer. with in a i yield. >> let me say when we started this process, every member believed that we should focus on the crisis at hand. the scope of the conference was to address those things that we saw as deficiencies at the v.a.. i think for the most part we have stayed within the parameters and i think that the response from veterans around the country is this will help s us. chairman raises an important issue and that's that the v.a. popped up and said we have other needs here's financially what they are. and those needs were broken down by 2014, '15, '16 and '17.

we either have to trust our appropriations process to address outyears or get -- do away with them. reality is for the scope of this conference, i think it is well within the scope of this conference to address what v.a. says they need in 2014. the chairman has included that in the offer, it's $102 million. and i might say of that, 60 some million dollars is in the vba, not in vha, not in the health care needs. when we talk about the additional whether it's $13 billion or $16 billion, let me just suggest to you i'm not the in any way objecting that the v.a. is wrong. i think there is a burden of proof that both sides of the hill and both parties have asked show us the information that proves how this is going to be used. we have yet to receive that. but that is probably more appropriate for us to look at in

the context of an appropriations process where the request comes from the white house and the request just doesn't come from an agency. so to those vsos around the country, we agree with you. we're willing to look at what additional needs our veterans have pr have, but we want to do it in the normal context. we will address those things that have been identified in this fiscal year that cannot be addressed in the normal appropriations budget. so i thank the chairman for moving board. i believe i said as i came in the room i'm still optimistic we can get a deal that might seem a little odd considering that my counterpart in the senate is not here or his colleagues. but i still believe we can get there. we will never get there if we're not willing to as a conference ent entertain a proposal and

eventually have a vote. >> thank you very much. i also want to let you know that there is media reports out there right now that say the v.a. talks on verge of collapse are widely exaggerated. we continue to try to resolve the impasse, albeit not a great one in gar scomparison to where started. but we're getting closer. senator mccain. >> mr. chairman, i want to thank you and senator burn and all members here on both sides of the capitol for the hard work that has been done on will issue a this issue and the priority that all of us have given this situation. i don't have to describe the urgency associated with this issue. i did have a conversation with the chairman of the veterans affairs committee. i strongly recommend that as

soon as possible that the four, you would and ranking member and the chair, sit down again this afternoon. i believe thattwould and rankin and the chair, sit down again this afternoon. i believe thatwould and ranking and the chair, sit down again this afternoon. i believe thatowould and rankin and the chair, sit down again this afternoon. i believe thatould and ranking and the chair, sit down again this afternoon. i believe thatuld and ranking m and the chair, sit down again this afternoon. i believe thatld and ranking med the chair, sit down again this afternoon. i believe thatd and ranking mem the chair, sit down again this afternoon. i believe that and ranking memb the chair, sit down again this afternoon. i believe that the only way we will reach a conclusion, if we are, and i believe we must, it's into the not a matter of can, it's must, and it will require a dialogue. i believe that he will understand that there are certain compromises that have to be made as shall have already been made and perhaps more. but i would hope that this afternoon that the four of you could sit down and start some really tough negotiating. because that really -- as we all know, that's the only way we will reach a conclusion. and especially mild mannered people like myself are very supportive of that effort and i thank you for all the great work you all have done and every member. thank you, mr. chairman.

>> let me assure you that the many meetings and phone calls i've had with mr. sanders has been in an attempt to try to negotiate something that both bodies could support, be proud of, and certainly would speed access of care to the veterans. >> i can't spell speak for him, but i'm convinced he's ready to sit down and have a dialogue in the same way we do with every bill. i'm still optimistic and i would remain optimistic. and i thank you for your hard work. >> senator coburn. >> i note that the senate this afternoon will approve a new head of the v.a.. it's my understanding bob mcdonald will go through the senate this afternoon. and i would tell you yyou the

expectation should be lowered until we add title xxxi authority for him. if you cannot hold accountable your employees under your leadership, you will not fix the v.a.. so whatever we do, i recommend title xxxi authority be given to him so in fact he can clean the mess up. >> the accountability piece that we both had is in there. the house believes and our position that it does cover title xxxviii, but i hear you, the intent certainly is there and that's something that we certainly can look at. because i concur with you you, senator. anybody on this side?

>> we pinned secretary gibson what one thing would you you need, and i asked has anyone been terminate baud of their behavior during this and the answer was no. and the reason was because he had to go through all this kree noor mus amount. and he said what one thing do you need and that's exactly. i yooeld back. >> ms. kirkpatrick. >> i want to join in the comments made by senator mccain, this really is about taking care of our veterans. that's the focus. i know everybody here, that's what they care about. and i agree that we have to continue the dialogue because that's how we get things done.

thank you. >> i appreciate your attendance here this afternoon. let me assure you this was not a take it or leave it. this was an attempt for us to make a public offer and the dild log will continue. >> and i wanted to take a moment to brag on you and appreciate the work that you're doing. we're proud you're from florida and proud of the work everyone here is doing. i believe this committee is comprised of individuals serious to bring this to a satisfactory -- luckily his mike was off so nobody heard that. but thank you for the work you're doing and the seriousness you've taken. and it's unimaginable for any of us here to believe that we're going to go home next thursday or friday for a recess and this issue would be unresolved. i think it would be viewed as unacceptable. not just by our constituents in florida, but across the country

and particularly those that the v.a.. so i want to echo the sense of urgency i hear here today. thank you. >> i want to clarify what is going to happen with the independent assessment. the whole management system the way the v.a. works. >> as you and i have discussed, that is a part of the senate bill. that is tantamount to finding out what the future is because v.a. needs to look at itself not only from an internal perspective, but also an external review. and that's what both bodies desire to do. >> i just wachtsed to add my comments to senator rubio's about the urgency of the hour. and i think that we're all cognizant of why we're here because we are talking about a

very urgent situation. it's been almost a month since we met here the first time and i think that we've gotten as far as we have because this has been an extremely bipartisan agreement. this is about our veterans. it transcends politics. it's the heros we defend on. so i think that high hope, and i thing all of us will work diligently to make sure this is done and grafted and agreed upon, our veterans deserve it, the american taxpayers deserve it. so i want to echo those thoughts that i'm grateful we're here today and we're actually moving. >> i think it's important that what we're trying to accomplish is taking care of those veterans that are in need. if you're ill in the ambulance on your way to get care, you didn't want to hear that it's being built in two years. you want to hear where you're

going right now to get care. and that should be our number one priority. and i think we're on the right path with that. >> i agree there is an urgency, but i think it's inappropriate to use this crisis to permanently increase the funding of a poorly performing agency. so i think it's perfectly appropriate on behalf of the taxpayers of this country to make a down payment toward a better system to deal with the you issues the veterans face and allow congressional oversight to work its process so that we can measure the results to make sure it's actually doing what we appropriated the money to do. and your proposal that you you laid out does that, it makes that down payment and then allows the process to work going board. so i don't see how anybody could not be supportive over a proposal that balances the best interests of our veterans and

the interests of our taxpayers. thank you. >> i want to thank you for the work you're doing. i want to echo what senator coburn said. if you listen to the confirmation testimony of bob mcdonald yesterday, you heard from a man that delineated point by point specifically what he's going to do to open up the v.a. to bring about a new attitude in the v.a. and deal with the v.a. in whatever way he has to do it. with the absence of title xxxviii, it will be a problem for him big time. we have somebody who has been there, done it, done his homework. i agree with senator coburn, i will work with you anyway i can to bring this to a successful conclusion so we can invest in our veterans and change the culture at the v.a..

>> and the ranking member also supports amending the bill to allow title xxxviii. >> let me say briefly i appreciate the work everyone has done, what i also appreciate is that on the house side, you have looef leaned forward to accept the senate bill. i think the senate bill was thoughtfully put together. there are a lot of things about the senate bill we can like. the other thing you've done with this proposal this puts burden on us to provide even more significant oversight of the v.a.. what you're saying, we'll make a major town payment here. but we want to see results. and what that means for the senate veterans committee, what

that means for the house veterans committee is that we have to stay on top of this. we need to make sure that the department is turning itself around, that it is using this taxpayer investment and it is getting service. to our veterans and getting the job done. so i think the way you have crafted this is streemgly artful in terms of taking care of veteran, make sure they will get the care they need, but secondly saying to the taxpayers we will make sure that the poorly run department is turning away. and if something is not working, we're going to force to turn around. so i think it's a giant step to get this resolved.

and i compliment you on very thoughtful approach to dealing with a very complex issue. i think it's absolutely good work. >> thank you, sir. any other comments? mr. kaufman. >> i just want to say he hope we get everything done before the august recess. as you have in terms of putting a proposal forward, that recognizes this just isn't a function of resources, but it's about restricting an agency that has not served the needs of our veterans. >> this morning we heard from acting second gibson and from his responses to our questions,

the question for the $17 billion is still a work in progress. they vchaven't figured out how many people they need. so i'm dcurious why it has come forward at this time. i don't think they are ready to make that request to be real honest. >> we had an article in the "wall street journal" yesterday that the problem was money. the problem isn't money. we've had a 16% increase with 17% increase in demand. it's not money.

and if we at this, we will have failed the american taxpayer. but most importantly, we will have failed the veteran. so it is not hone. you just have to look how much the veteran budget has grown in health care and how less efficient it's become every year. and the key is management. waef if the a great leader. what we have to do is give him the tools. >> thank you very much. thanks for coming and joining us. i have drafted a letter that i'm sending to senator sanders outlining our proposal and asking for him to join me in a call that we come back together in a public setting as a conference committee to actually vote on monday afternoon. with that, we're adjourned.

>> i thought four weeks was long enough for us to negotiate behind closed doors. and that we actually show the american people that the house is willing to put money forward to pay for what is going on because there has been some attempts to make it appear that the house did not want to pay . so $10 billion up front is what we would consider a down payment because we have to do this quickly before we get home. >> how long -- >> however long that $10 billion lasts. that's why we call it a no year. we don't lock it into a single

year because we truly believe that the $10 billion is going to last more than a single year. so we call it a no year appropriation. and then go through the normal process for the additional dollars that have been requested. and we will have the benefit of the independent review by which to substantiate moving the needle either up or down as it relates to money. >> outside care or v.a.? >> will you sit down with senator sanders this afternoon? >> i've got a very full schedule. i don't know what senatorsand sanders' schedule is, but we'll have to see. >> there is only one democrat

that was here p h. how can this -- >> you can see the remainder of this conversation in the c-span video library. live to capitol hill now for the overcriminalization task force gathering for another hearing examining the overfederalization of the criminal justice system. this is just getting under way. >> over the past year, the task force has examined many important topics in in this area. the invaluable perspective on the issues from a number of highly qualified witnesses, two of which rejoin us today for today's hearing. i anticipate that they will be able to provide will this body with meaningful insight into the subject of today's hearing and i appreciate their continued cooperation and furtherance of the goals of the task force. despite the fact that it is generally accepted that the federal government does not possess a general police power, recent studies have concluded the number of federal criminal offenses on the books has grown from less than 20 which were

directly related to the operation of the federal government in the years following this nation's founding to nearly 5,000 today which cover many types of conducts undoubtedly by the framers to be left to the individual states. congress passes an average of over 5,000 new crimes every decade. this surge is highlighted by a particularly telling statistic. nearly 50% of the federal criminal provisions enacted since the civil war have been enacted since 1970. the shear number of federal crimes leads to a number of concerns. issues of notice and fairness have difficulty in determines if certain conduct violates federal law and if so under which statute. the disorganization, decentralization and duplicative nature needs to be addressed. i've introduced legislation to

do just that. the bill would tut more than a third of the existing criminal code, reorganize the code to make it more user friendly and consolidate criminal offenses from other titles. there are likely a number of ropes for this rapid expansion of federal criminal law including the fact many criminal statutes are grafted hur ridley in response to fresh from the media or public and as a result often duplicate offenses already on the books and omit critical elements such as a valid mens rea or criminal intent. under the current interpretation, it is possible and not uncommon for new criminal legislation to make its way to the house floor without ever receiving proper scrutiny from the judiciary committee. this committee is comprised of

lawmakers with expertise in drafting criminal provisions and the ability to avoid redundancy through situational awareness of the entire body of federal criminal law. as we move toward wrapping up the business of the task force in addition to other potential recommendations, we should consider pursuing an amendment to the rules clarifying injuries dibs injuries ris diks of the committee. again i would like to thank our witnesses for appearing today. and also the members of the task force. i hope we can come together to address the concerns identified. before introducing mr. scott for his opening statement, i would like to ask unanimous consent to include for the record a

memorandum dated july 221, 21, and crs report entitleded subject updated criminal offenses enacted from 2008 to 2013. subject updated criminal offenses enacted from 2008 to 2013.d sub updated criminal offenses enacted from 2008 to 2013. without objection, it is so order. it is now my pleasure to introduce the gentleman from virginia, mr. scott. >> thank you. we've created this in need to address the explosive growth in the criminal system. too often we've done this in a knee jerk fashion charge charging ahead and addressing the crime of the day instead of legislating thoughtfully and with the benefit of evidence based research.

when it comes to criminal law, only those that need to be handled need to be addressed by the federal government. what purpose is served by creating crimes at the federal level if they duplicate those being enforced by the state. state and local law enforcement investigated carjacking for years. judge kelly reminded us of the following recommendations made in 1995 regarding five types of criminal offenses deemed appropriate for federal jurisdiction. offenses against the federal government or its inherent interests, criminal activity with substantial multistate or international aspects, criminaling a different involving complex commercial or institutional enterprises most effectively prosecuted using federal resources or expertise, serious high level widespread

state or local corruption, and criminal cases raising highly sensitive issues. we've ignored these recommendations. earlier this month the congressional research service informed us that 403 criminal provisions were added to the u.s. code between 2008 and 2013 for an average of 67 new crimes a year. of those 403 new provisions, 39 were not everyone referred to the judiciary committee. the past several years, we've estimated that there were that 00 federal cri 45 pea 4500 federal crimes and now there are 5,000. there are approximately 300,000 federal regulations enforced with criminal penalties. several testified many lack adequate criminal intent or mens rea requirement to protect those who do not intend to commit

wrongful or criminal acts from prosecution. witnesses have suggested enacted default mens rea as an appropriate fix for existing statutes and regulations. we've also heard concerns about promulgation of regulations that carry criminal sanctions. it's time it for congress to put an end to that practice, reclaim that authority and retain sole discretion in determining which sanctions are appropriate. regulations can still be enforced with civil penalties, but when criminal penalties are considered, congress should be involved. it has resulted in growth of policen on p for lags from 25,000 to this 19 # 0 to over 200,000 today, making the united states the world's leader in encars race.

pew center estimates incarceration right over 350 per 100,000, crime reduction value begins to diminish because at that point you certainly have all the dangerous people locked up. we've also learned from the collateral consequences that more than 6500 -- excuse me, 65 million americans are now stigmatized by the criminal convictions bombarded by over 45,000 collateral consequences of those convictions making reentry and job prospects dim. in spite of the research that over 350 better 100,000 population yields diminishing returns, and the pew research center also said anything over 500 per 100,000 is actually counter row duct tifr, the united states leads the world in over 700 per 100,000 because unnecessarily locking up people wastes money that can be put to

better use. making the next generation more likely to commit crimes. over 700 per 100,000 counter productive and we lock up well over 700 per 100,000. in testimony received during these hearings consist entsz l eptsly told us longer sentences is not the answer. mandatory minimums has basically been studied extensivery and been shown to disrupt sentencing patterns, discriminate against minorities, waste the taxpayer's money and often require judges to impose sentences that violate common sense. code is defined as a systemic and comprehensive compilation of laws, rule, regulations that are consolidated and classified according to subject matter. our criminal code is not a criminal code by that

definition. federal criminal offenses are spread all over the 51 titles of the u.s. code making it virtually impossible for practitioners not to mention ordinary citizen to make any sense out of it. it's time not only to move all criminal provisions in to one title, title xviii, but also clean up and revise it as recommended by witnesses and previous task force hearings. we need to consider how to proceed and whether or not it should be done by congress itself or by an appointed commission. it's time we consider evidence based research and make wiser policies. we're wasting billions of dollars. it's time we look for more realistic and rope e reasoned a understanding that not every owe fence requires a long sentence of incarceration. while this is a final task force hearing, there is still much r more to do and i look forward to working with you in drafting a

consensus report and taking the necessary actions to improve our criminal justice system. >> thank you. without objection, all members opening statements will be placed in the record at this point. it is now my pleasure to introduce the witnesses. first is dr. john s. baker jr. who is the visiting professor at georgetown law school, visiting fellow at oxford, and emeritus professor of law. he also teaches short courses on the separation of powers for the federalist society. tr baker previously worked as a federal court clerk and assistant district attorney in new orleans. and has served as a consultants to the u.s. department of justice, u.s. senate judiciary subcommittee on separation of you powers, white house office of planning, usia and chltusaid.

he serve as law clerk in federal district court and assistant district attorney in new orleans before joining lsu in 1975. while a professor, he has been a consultant of the state department and justice department. he has served on the aba task force which issued the report federalization of crime. he received his bachelor of arts from the university of dallas, jd from university of michigan law school and ph.d. in political thought from the university of london. mr. steven d. benjamin is the president of the national association of criminal defense lawyers. the nacdl is a professional bar association founded in 1958. its members include private criminal defense lawyer, public defenders, active duty u.s. military, defense counsel, law professors and judges committed

to preserving fairness within america's criminal justice system. he is in private practice at the virginia firm of benjamin and deport. he serves as special counsel to the virginia senate courts of justice committee and is a member of the virginia board of information ren secretaforensic. he previously served as president of the virginia association of criminal defense lawyers. i would like to ask each of you to confine your remarks to five minutes. you know what the red, yellow and graeene lights mean. without objection, your full written statements will placed in the record. lights mean. without objection, your full written statements will placed in the record. to being o doc baker, you're first. >> thank you. i've testified here twice before and i appreciate -- >> turn the mike on. >> i've testified here twice

before and i thank the committee for allowing me to come back. actually i'm coming back on the issue that i started out on on my own which was counting federal crimes. and i have to concur with everything that i've heard about the problem of federal courts and i began with the newspapers. and while numbers are not everything, they do tell a certain story. so i want to do three things quickly. one, talk a little bit about whathe numbers are, two, where we are going, and three what is the significant of the numbers. i mentioned the tremendous number of federal crimes and really the unknown number of federal regulatory offenses. after that, this this task force the congressional research service to conduct a count from 2008 to 2013 which is where my last count left off. they came up with the number of 403 new federal crimes. that's not counting regulatory

offenses. that is just from the u.s. code. and it's important to say that the counts from crs, my count and the department of justice counts have used fundamentally the same methodology. and that's important for consistency. what is significant second point about where we're going to seems to me is what this says about the average number of crimes and the total number of crimes. when i did the count in 2008, as of 2008, there were 4450 crimes at least. crs has note that had d that we additional 403 crimes. so that brings us up to almost 5 thourks crimes. it means that essentially congress is passing 500 new crimes a decade. the aba task force that i served

on back in the '90s, the notation was that since the civil war, 40% of all federal crimes since the civil war had been passed since 1970. from 1970 until about 1996. well, when you add what is going on since 1996, we're approaching 50% of all federal crimes ever enact in this country have been enacted since 1970 and that was the beginning of the war on crime which we haven't been winning that war too well. what does it mean for the future? well, the right of crimes appears possibly to be did my 5 a year. theirs shows 67 something per year. in 2002008, congress passed 195

crimes. what is the significance? if you talk to an assistant u.s. attorney and i've debated a number of former assistants u.s. attorney, they will tell you that the numbers mean nothing. they at any time use all these crimes. and they're right. in a certain sense, they don't mean that much to the ross duties tore or to the judges because will it are only so many cases that you can bring in federal course. but where they're really important is in law enforcement. we have plenty of law endorsement agencies out there that do searches and seizures and arrests in cases that never actually get even indict much less trial. given the broad array of crimes, there is swrernlgly nothing that you can't get a basis for probable cause on, which is the basis for arrests, certainly and seizure. there is a lot of concern in this country rightly about privacy. but i think people ought to be focusing on the fact that surveillance is not just a

matter of, quote, privacy, it's a matter of the police power. the federal government has no general police power. in reality de facto, it has complete police power and we'll see it in surveillance. people have been focusing on nsa, but think about drones. there is nothing a drone can't search basically because there is every possibility for coming up with the basis of it. and some of the federal agencies will conduct raids that will never result in an indictment. or if it does, will not result on those crimes. it is easy to come up with a rico charge and money laup der itting charge and go out and seize somebody's property. that's the reality of where the real power is. i think this task force has done an amazing job of identifying

the problem. now it is necessary for your colleagues in both houses to understand what the problem is. they're taking this tremendous power and dumping it in the executive branch with various agencies that in reality have their owned a skren todayen aw . they're not bad agendas, but they are again today thank you. >> mr. benjamin. >> mr. chairman and members, my name is steve benjamin and i'm the immediate past president of the national association of criminal defense lawyers. advancing the goals of justice and due process. on behalf, i commend the committee for creating the overcriminalization task force and i congratulate the task force for its impressive work over the past year. i'm grateful for the leadership and support of two members of my own congressional delegation

whose work on this critical issue demonstrates the danger of overcriminalization transcends the ideological divide. this problem is real and it affects us all. the shear number of federal offenses, 4800 at last count with 439 new enact mtss since 2008, competes only with our number of prisoners a number greater than any nation on earth as the most visible consequence of overcriminalization. one such cops defennsequence is difficulty of being a law abiding citizen. fairness and reason require adequate advanced notice of conduct that is considered criminal. adequate notice of prohibited conduct permits people to conform their conduct to the law. and at the same time, justifies

punishment when they cross a clearly drawn line. this is especially important in a legal assume that presumes knowledge of the law. we should at least ensure that the law is knowable. this is especially true where the conduct is not wrongful in itself and the offense requires no criminal intent. criminal laws must be accessible not only to law persons, but also to the lawyers whose job it is to identify those laws and advise their clients. the problem, however, is that the federal statutory crimes in the 10,000 to 300,000 regulations are scattered throughout 51 titles of the code and 50 chapters of the cfr. nacdl does not have a position on whether all should be organized in to a single title. common sense would dictate most criminal provisions should reside in a single title unless

clear evidence exists that a particular criminal division belongs elsewhere. fair notice goes i don't understand being able to locate criminal statutes within the code. it includes clarity in drafting precise definition and specificity this scope. with rare exception, the government should not be permitted to punish a person without having to prove that she acted with the wrongful intent. and criminal law should be understandable. when the average citizen cannot determine what constitutes unlawful activity in order to confirm her conduct to the law, that is unfairness in its most basic form. unfortunately, when ledges latsing criminal offenses, congress has failed to speak clearly and with specificity, has failed to determine the necessity of new criminal provisions and has failed to assess whether targeted conduct is already prohibited or better addressed by state law. while the cause of these failures is not clear, solutions are. moving forward, congress should approach new criminalization with caution and ensure that the drafting and review of all criminal statutes and

regulations is done with deliberation, precision and by those with specialized expertise. given the unique qualifications of the committee which alone possess special competence and perspective to properly draft criminal laws, this congressional evaluation should always include judiciary committee consideration prior to passa passage. require every bill that would add or modify criminal offenses or penalties to be subject to automatic sequential referral to the relevant judiciary committee. the members of this committee are far better suited to take on this critical role and to encourage other members to always seek judiciary committee review of any bills kanksing i new or modified criminal offenses. hopefully this would result in more specific understandable criminal defenses with

meaningful intent requirements and reduce the number of times it would be delegated to regulators. these comments are limited for the issues i was invited to address. the problems are pervasive and measures necessary go much further than committee oversight. further discussion is contained in my written testimony. i thank you for your bipartisan commitment to the task of ensuring our nation's criminal laws are not themselves a threat to liberty. nacdl will continue to support you and assist you however we can. >> the chair will reserve his questioning to the end of the questions assuming we still have time and before the bell rings. and the chair at this time recognizes the gentleman from alabama, mr. bachus. >> i thank the chair. i was looking at mr. benjamin's

testimony, both your testimony, but i think we're to the point where we're ready to act hopefully. we know the problem. it's been reinforced sefrld times. we've gotten the message. and the key is what do we do. and on page nine of your testimony, mr. benjamin, you suggest at least four things i hear. one is by changing congressional rules to require every bill that would add or modify criminal offenses or penalties be subject to automatic referral to the relevance judicial committee. and i think that's very importan important. as you say, this is the committee with expertise. two, enact statutory law

establishing the default criminal intent requirement to be read into any criminal offense that currently lacks one. three, and it says this requirement should be protective enough to prevent unfair prosecutions and should apply retroactively to all or nearly all existing laws. and i actually know that's a radical idea, but i believe in that. and i think there ought to be something where you can go before a judge and present evidence or go before a board, particularly some of these environmental crimes. i could mention several cases of where people discovered hazardous waste on their property and reported it, but they weren't -- couldn't afford to do it is pose of it fast enough. and a lot of these cases i talked to a former congressmand

enough. and a lot of these cases i talked to a former congressmanu enough. and a lot of these cases i talked to a former congressmant enough. and a lot of these cases i talked to a former congressman enough. and a lot of these cases i talked to a former congressmani enough. and a lot of these cases i talked to a former congressmans enough. and a lot of these cases i talked to a former congressman enough. and a lot of these cases i talked to a former congressmans enough. and a lot of these cases i talked to a former congressmans. and a lot of these cases i talked to a former congressmani enough. and a lot of these cases i talked to a former congressmanp. and a lot of these cases i talked to a former congressman and we had a lot of these cases in the '80s and early '90s but we couldn't figure out what to do. and maybe that's because it wasn't judiciary. the next thing, and i'll ask your reaction, on strict liability, your association urges strict liability not be imposed in a criminal law as a general matter where strict liability is deemed necessary the body only employ after full deliberation and then only if explicit in the statute. i think that -- we ought to say if it's not explicit in the statute, there is no district liability. and the fourth one is that i did not know this, but -- and ii'm t

the bottom of the page, he says supreme court has caution the against the imposition of strict liability in criminal law and has stated that all but minor penalties may be constitutionally impermissible without any intent requirement. we've said several times in our deliberations and witnesses have that without apintent requirement -- i can see a minor mine. but when you're talking about putting someone in jail for a year and a day, that's pretty scary. but i would just say i would ask both of you to give us five or six specific statutes that we can do or your associations and even, you know, draft some just as a model. and we could look at them. and i think that would be particularly helpful. i really appreciate your testimony. dr. baker, you've been here

before. this to me is such an important thing because i think we have seen travesties of justice. people withintent. and if anything else, the government can use that power to force them to do things just with the threat. you know, they don't have to get a conviction. they can just -- and you could really, it could be used in a way that we see some countries around the world that use the judicial process simply to put people in jail that will stand in their way of whatever their goal is. and i hate that on certain cases people with agendas have maybe done that here. that's a shame because that's not america. that's not what our constitutional forefathers envisioned. my time is up. so -- >> time of the gentleman is

expired. the gentleman from virginia, mr. scott. >> thank you, mr. chairman. dr. baker, what problems could occur if we defer to states for prosecution of virtually all cases that do not have a bona fide federal nexus? >> well, even today, most cases, the overwhelming number of cases are still prosecuted at the state level. it's moeshls on a selective basis that is prosecutors pick cases. sometimes there are conflicts between local law enforcement people in terms of where the jurisdiction is, fighting over certain cases, high profile cases. other in times it's cooperation based on money. when i was prosecuting in new orleans, we had longer sentences than the federal, if you can believe that. and so all of the federal drug cases, the federal agents would steer into our courts because

the longer sentences. some states, the drug people will steer the case still into state court if there is a tougher provision on search and seizure. so law enforcement people are very practical and so to give a general answer to it, you'd have to be specific place by place. i'm not exactly sure what you're trying to -- would it overwhelm the state? is that what you're talking about? >> no, just as a general matter, we ought to defer to the states. one of the previous witnesses said in ascertaining when you go through the list of things that you want to consider, the differenceal in penalties was not on their list of things that were legitimate to consider. do you agree with that? >> no. >> that you can pick and choose your jurisdiction based on the. >> absolutely, we did it. >> well, yeah, you did it. >> i mean we did it.

>> and then we did it in richmond and people brag about the fact that project exile worked. >> i have an article against project exile. i'll show it to you. >> without pointing out in richmond the crime rate went down because it had project ex-etch i'll but in other cities in virginia that didn't have project exile, the crime rate went down more. >> exactly. i point that out in my article. >> mr. benjamin, you mentioned notice. how do you get notice -- if you have mens rayia, obviously you had notice because you had criminal intent. how else would you get notice out there so the people know that they're committing a crime? >> well, you make the laws accessible. now, if someone wants to determine in advance whether their conduct, their proposed conduct is criminal, they've got to the hire a lawyer to answer that question. and then the lawyer has got to find the statute within the 51

titles of the code. it's nearly an impossible task. and that's why we always hedge our bets. few lawyers are going to say you can do that. it's because the law permits such uncertainty. it is so ambiguously written that it's impossible to know. even by lawyers whether proposed conduct is truly lawful or unlawful. >> is why the rule of lynn nitty is so important. >> that's exactly why the rule is so important. >> can you say a word about the overlapping crimes in state and federal and what it does for the so-called trial penalty? >> i certainly can. the trial penalty is the penalty for going to trial. meaning that full -- let me back up because i think it is a unique and cherished american value consistent with freedom and liberty that if the government accuses us of a crime and threatens to take away our

freedom, we have that right to stand up to the government and not only deny it but make them prove it to say oh, yeah? prove it. but we have completely lost that right because if we go to trial, either because we want to make the government problem their allegation or we want to challenge the constitutionality of a dubious statute, or because we are innocent, we can no longer do that because if we lose our bid to challenge the government, then we face staggering mandatory minimum sentences that can be stacked by the prosecution to beat us into guilty pleas. that's not how our system was designed. >> are there problems in consolidating all of our codes into title 18 or would it be

better to have them spell all around where the subject matter crime goes with the subject matter like the agriculture code? >> well, first of all, is when the proposed federal criminal code back in the '80s came before the judiciary committee, the real problem was in organizing the code -- people didn't pay attention to all of the many provisions. in one sense, it was a code. but in another sense, the federal government should not have a code because a code is a comprehensive statement of criminal law, and if you believe as i do constitutionally that congress has only limited powers and has to justify it on particular enumerated powers, then the idea of a comprehensive criminal code is very difficult to create without in effect expanding federal power. my main concern about a general code like that would even with

an attempt to limit federal power, it would defacto end up expanding federal power. >> the gentleman's time has expired. the gentleman from michigan,ing mr. conyers. >> thank you, mr. chairman. i want to thank both of you gentlemen and this is our tenth hearing, and both of you have been here before. so this is a good place and a good point to begin with is, how do you see the cumulative effect and impressions and understanding that we've gleaned out of these ten hearings this year and last year? dr. baker, why don't you start us off on that. >> well, i -- if i compare back to federal criminal trials that i sat back through when i was a law clerk and federal trials today, biggest thing that

strikes me is the imbalance of power. and how the power has shifted so dramatically towards federal law enforcement to the point where not everyone but there's a certain arrogance that pervades the prosecutors. and it goes with the territory. unfortunately. when you give anybody too much power, they're going to use it. and i don't mean that they're using it for what they perceive to be bad things. they believe that what they are doing is the right thing. of course, when he this he then resign and become criminal defense attorneys they get a different perspective and they realize, well maybe, maybe we were a little too aggressive. and i can tell that you i have been on panels with former ausas and they have said that, now that they're on the defense side. reality is, there are three perspectives, the prosecutor, the defense and the judge or jury. and they're not the same perspectives. and there has to be a balance

between the two sides and i think at this point that the balance is too much in favor of federal prosecution. >> but still state crimes are far more numerous than are federal. >> they do, but here's the difference. you know from detroit, and i can tell you from new orleans, people trying to prosecute and arrest, they are running around trying simply to deal with the violent crimes that they have to. very few prosecutors in major cities have time to go looking for things. they can't find what's already been done. that's not the case in federal court. in federal court, you convene a grand jury and you go out looking. you've got the defendant, potential target and you figure out, what can we nail him on. that's not the way local prosecutors work. >> attorney benjamin, would you

weigh in on this discussion, please in. >> i agree absolutely with dr. baker that the most striking facet of the current state of the criminal justice system and the biggest, the most dramatic change from when i first began 35 years ago to defend criminal cases is the overbalance of power. federal criminal defense now is all about negotiating a resolution. >> sentence. it's that you will it does. >> that's all it is. it's no longer about guilt or innocence. guilt is presumed at least by the prosecution and they have the tools available to compel the guilty plea so that that's not even a question. it's all about snitching out, cooperating, doing whatever you have to get the leniency, the fair treatment that you