[Senate Hearing 114-771]
[From the U.S. Government Publishing Office]
S. Hrg. 114-771
CONFIRMATION HEARING ON THE
NOMINATION OF HON. LORETTA E. LYNCH
TO BE ATTORNEY GENERAL
OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
----------
JANUARY 28 and 29, 2015
----------
Serial No. J-114-2
----------
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
25-638 PDF WASHINGTON: 2018
Printed for the use of the Committee on the Judiciary
COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont,
JEFF SESSIONS, Alabama Ranking Member
LINDSEY O. GRAHAM, South Carolina DIANNE FEINSTEIN, California
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah RICHARD J. DURBIN, Illinois
TED CRUZ, Texas SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana AL FRANKEN, Minnesota
DAVID PERDUE, Georgia CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
Kolan L. Davis, Chief Counsel and Staff Director
Kristine Lucius, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
JANUARY 28, 2015, 10:03 A.M., and JANUARY 29, 2015, 10:05 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California:
January 28, 2015, prepared statement......................... 322
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa:
January 28, 2015, opening statement.......................... 1
January 29, 2015, opening statement.......................... 119
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont:
January 28, 2015, opening statement.......................... 4
January 28, 2015, prepared statement......................... 330
January 29, 2015, opening statement.......................... 121
PRESENTERS
Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New
York presenting Hon. Loretta E. Lynch, Nominee to be Attorney
General of the United States................................... 7
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting Hon. Loretta E. Lynch, Nominee to be Attorney
General of the United States................................... 6
STATEMENT OF THE NOMINEE
Witness List..................................................... 179
Lynch, Hon. Loretta E., Nominee to be Attorney General of the
United States.................................................. 8
prepared statement........................................... 180
questionnaire and biographical information................... 185
STATEMENTS OF THE WITNESSES
Attkisson, Sharyl, Investigative Journalist, Leesburg, Virginia.. 123
prepared statement........................................... 241
Barlow, David B., Partner, Sidley Austin LLP, Washington, DC..... 125
prepared statement........................................... 244
Clarke, David A., Jr., Sheriff, Milwaukee County, Milwaukee,
Wisconsin...................................................... 133
prepared statement........................................... 246
Engelbrecht, Catherine, Founder, True The Vote, Houston, Texas... 137
prepared statement........................................... 250
Fedarcyk, Janice K., Fedarcyk Consulting LLC, Crownsville,
Maryland....................................................... 128
prepared statement........................................... 256
Legomsky, Stephen H., John S. Lehmann University Professor,
School of Law at Washington University, St. Louis, Missouri.... 129
prepared statement........................................... 261
Newsome, Rev. Dr. Clarence G., Cincinnati, Ohio.................. 126
prepared statement........................................... 281
Rosenkranz, Nicholas Quinn, Professor of Law, Georgetown
University Law Center, and Senior Fellow in Constitutional
Studies, The Cato Institute, Washington, DC.................... 135
prepared statement........................................... 286
Turley, Jonathan, J.B. and Maurice C. Shapiro Professor of Public
Interest Law, George Washington University Law School,
Washington, DC................................................. 131
prepared statement........................................... 296
QUESTIONS
Questions submitted to Sharyl Attkisson by Senator Grassley...... 459
Questions submitted to Sheriff David A. Clarke, Jr., by Senator
Grassley....................................................... 461
Questions submitted to Hon. Loretta E. Lynch by:
Senator Cornyn............................................... 332
Senator Cruz................................................. 343
Follow-up questions submitted by Senator Cruz................ 372
Senator Durbin............................................... 391
Senator Feinstein............................................ 392
Senator Flake................................................ 403
Senator Franken.............................................. 406
Senator Graham............................................... 407
Senator Grassley............................................. 409
Follow-up questions submitted by Senator Grassley............ 448
Senator Hatch................................................ 470
Senator Leahy................................................ 472
Senator Lee.................................................. 473
Senator Perdue............................................... 477
Follow-up questions submitted by Senator Perdue.............. 486
Senator Schumer.............................................. 490
Senator Sessions............................................. 491
Follow-up questions submitted by Senator Sessions............ 501
Senator Tillis............................................... 508
Follow-up questions submitted by Senator Tillis.............. 511
Senator Vitter............................................... 514
Follow-up questions submitted by Senator Vitter.............. 522
Senator Whitehouse........................................... 524
Questions submitted to Prof. Nicholas Quinn Rosenkranz by Senator
Grassley....................................................... 462
Questions submitted to Prof. Jonathan Turley by Senator Grassley. 466
ANSWERS
Responses of Sharyl Attkisson to questions submitted by Senator
Grassley....................................................... 525
Responses of Sheriff David A. Clarke, Jr., to questions submitted
by Senator Grassley............................................ 529
Responses of Hon. Loretta E. Lynch to questions submitted by:
Senator Cornyn............................................... 534
Senator Cruz................................................. 549
Follow-up questions submitted by Senator Cruz................ 588
Senator Durbin............................................... 624
Senator Feinstein............................................ 626
Senator Flake................................................ 638
Senator Franken.............................................. 643
Senator Graham............................................... 645
Senator Grassley............................................. 650
Follow-up questions submitted by Senator Grassley............ 708
Senator Hatch................................................ 730
Senator Leahy................................................ 734
Senator Lee.................................................. 736
Senator Perdue............................................... 744
Follow-up questions submitted by Senator Perdue.............. 764
Senator Schumer.............................................. 771
Senator Sessions............................................. 774
Follow-up questions submitted by Senator Sessions............ 795
Senator Tillis............................................... 808
Follow-up questions submitted by Senator Tillis.............. 812
Senator Vitter............................................... 816
Follow-up questions submitted by Senator Vitter.............. 835
Senator Whitehouse........................................... 839
Responses of Prof. Nicholas Quinn Rosenkranz to questions
submitted by Senator Grassley.................................. 840
Responses of Prof. Jonathan Turley to questions submitted by
Senator Grassley............................................... 848
LETTERS RECEIVED REGARDING THE NOMINATION OF HON. LORETTA E. LYNCH TO
BE ATTORNEY GENERAL OF THE UNITED STATES
Alliance for Justice, Washington, DC, January 27, 2015........... 930
Alliance of North Carolina Black Elected Officials, The, Shelby,
North Carolina, February 23, 2015.............................. 966
Alpert, Stanley N., former Assistant U.S. Attorney, et al.,
Eastern District of New York, December 9, 2014................. 864
Anello, Robert J., former President, et al., Federal Bar Council,
White Plains, New York, January 14, 2015....................... 885
Association of Prosecuting Attorneys (APA), Washington, DC,
January 27, 2015............................................... 943
Barlow, David B., former U.S. Attorney, District of Utah, et al.,
January 22, 2015............................................... 909
Biehl, Richard, Chief, Dayton Police Department, Dayton, Ohio, et
al., December 9, 2014.......................................... 855
Bratton, William J., Police Commissioner, New York City Police
Department, New York, January 26, 20 15........................ 926
Cardozo, Michael A., former President, et al., New York City Bar
Association, New York, New York, January 22, 2015.............. 907
Center for Judicial Accountability, Inc. (CJA), White Plains, New
York, December 17, 2014........................................ 980
Congressional Black Caucus, The, Hon. G.K. Butterfield, a
Representative in Congress from the State of North Carolina,
and Chairman, Washington, DC, January 14, 2015................. 884
County of Durham, Board of Commissioners, Durham, North Carolina,
December 15, 2014.............................................. 877
Federal Bureau of Investigation Agents Association (FBIAA),
Arlington,
Virginia, January 27, 2015..................................... 947
Federal Law Enforcement Officers Association (FLEOA), Jon Adler,
National President, Washington, DC, January 22, 2015........... 906
Field, Arthur Norman, former President, et al., New York County
Lawyers' Association (NYCLA), New York, New York, January 23,
2015........................................................... 915
Freeh, Hon. Louis J. Freeh, former Judge and former Director,
Federal
Bureau of Investigation, January 20, 2015...................... 904
Gilbride, John P., former Special Agent, Drug Enforcement
Administration, Middletown, New Jersey, January 26, 2015....... 917
Gorelick, Hon. Jamie S., former Deputy Attorney General, U.S.
Department of Justice, Washington, DC, January 26,2015......... 948
Guccione, Joseph R., former U.S. Marshal, Southern District of
New York, Wilmington, Delaware, January 23, 2015............... 914
Human Rights Campaign (HRC), Washington, DC, February 11, 2015... 967
Immelt, Stephen J., Chief Executive Officer, et al., Hogan
Lovells US LLP, New York, New York, January 15, 2015........... 902
International Association of Chiefs of Police (IACP), Alexandria,
Virginia, February 25, 2015.................................... 969
Landrith, George, Frontiers of Freedom, et al., January 21, 2015. 970
Leadership Conference on Civil and Human Rights, The, Washington,
DC, January 26, 2015........................................... 919
Legal Momentum: The Women's Legal Defense and Education Fund, New
York, New York, February 25, 2015.............................. 972
Lewis, Hon. John, a Representative in Congress from the State of
Georgia, January 27, 2015...................................... 937
Maloney, Andrew J., former U.S. Attorney, Eastern District of New
York, et al., December 3, 2014................................. 862
Major Cities Chiefs Association, Tom Manger, President and Chief
of Police, Montgomery County Police Department, Maryland,
January 8, 2015................................................ 882
Moss, Sara, Executive Vice President and General Counsel, The
Estee Lauder Companies Inc., New York, New York, January 14,
2015........................................................... 965
National Association for the Advancement of Colored People Legal
Defense and Educational Fund, Inc. (LDF), New York, New York,
and Washington, DC, January 27, 2015........................... 932
National Association of Social Workers (NASW), Washington, DC,
January 27, 2015............................................... 976
National Association of Women Lawyers (NAWL), Chicago, Illinois,
February 3, 2015............................................... 957
National Bar Association (NBA), Washington, DC, January 29, 2015. 952
National Black Prosecutors Association (NBPA), Chicago, Illinois,
January 22, 2015............................................... 961
National Conference of Women's Bar Associations (NCWBA),
Portland,
Oregon, January 28, 2015....................................... 935
National Disability Rights Network (NDRN), Washington, DC, March
3, 2015........................................................ 978
National District Attorneys Association (NDAA), Alexandria,
Virginia,
November 9, 2014............................................... 860
National Immigration Law Center (NILC), Los Angeles, California,
February 3, 2015............................................... 959
National Organization of Black Law Enforcement Executives
(NOBLE), Alexandria, Virginia, December 27, 2014............... 881
National Task Force to End Sexual and Domestic Violence (NTF),
Seattle, Washington, December 9, 2014.......................... 857
National Urban League (NUL), Marc H. Morial, President and Chief
Executive Officer, New York, New York, January 26, 2015........ 922
National Women's Law Center, Washington, DC, January 26, 2015.... 924
O'Connor, Kevin J., United Technologies Corporation, Hartford,
Connecticut, January 22, 2015.................................. 911
Parr, Brian G., Chief Security Officer, Citigroup Inc., New York,
New York, January 25, 2015..................................... 954
People For the American Way, Washington, DC, January 26, 2015.... 928
Rice, Kathleen M., District Attorney, Mineola, New York, November
17, 2014....................................................... 861
Schneiderman, Hon. Eric T., Attorney General for the State of New
York, New York, New York, March 13, 2015....................... 984
Schwartz, Bart M., Chairman, Guidepost Solutions LLC, New York,
New York, January 26, 2015..................................... 955
Strauss, Audrey, Executive Vice President and Chief Legal
Officer, Alcoa Inc., January 13, 2015.......................... 883
Thompson, Larry D., former Deputy Attorney General, U.S.
Department of Justice, Washington, DC, January 27,2015......... 950
Tursi, Elizabeth Anne ``Betiayn,'' Women in Law Empowerment
Forum, January 22, 2015........................................ 913
Walsh, Peter H., Senior Deputy General Counsel and Chief of
Litigation, UnitedHealth Group Incorporated, Minnetonka,
Minnesota, January 23, 2015.................................... 944
Wilson, Benjamin F., Managing Principal, Beveridge and Diamond,
P.C., et al., January 28, 2015................................. 940
Women in Federal Law Enforcement (WIFLE), Arlington, Virginia,
January 27, 2015............................................... 858
Women's Bar Association of the District of Columbia (WBA),
Washington, DC, January 28, 2015............................... 945
YWCA USA, Washington, DC, January 27, 2015....................... 938
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Beck, Charlie, Chief of Police, City of Los Angeles Police
Department, Los Angeles, California, statement................. 985
``Breakdown of the Subsequent Convictions Associated With
Criminal Aliens Placed in a Non-Custodial Setting in Fiscal
Year 2013,'' table............................................. 988
Frum, David, Senior Editor, The Atlantic, ``Reagan and Bush Offer
No Precedent for Obama's Amnesty Order,'' November 18, 2014,
article........................................................ 1026
Marek, Stan, President and Chief Executive Officer, Marek Family
of Companies, Houston, Texas, statement........................ 1033
Martin County, Board of Commissioners, Williamston, North
Carolina, January 7, 2015, resolution.......................... 1035
United States Department of Justice, Office of the Inspector
General, Abbreviated Report of Investigation, Final, January
23, 2015, report--redacted..................................... 1029
ADDITIONAL SUBMISSIONS FOR THE RECORD
Submissions for the record not printed due to voluminous nature,
previously printed by an agency of the Federal Government, or
other criteria
determined by the Committee, list.............................. 1036
Attorney General's Advisory Committee, December 19, 2014, working
draft agenda--redacted,
Part 1:
https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
2014)_Part1.pdf............................................ 1036
Part 2:
https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
2014)_Part2.pdf............................................ 1036
Part 3:
https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
2014)_Part3.pdf............................................ 1036
Part 4:
https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
2014)_Part4.pdf............................................ 1036
Part 5:
https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
2014)_Part5.pdf............................................ 1036
Legal and Administrative Management Evaluation, United States
Attorney's Office, Eastern District of New York, January 23,
2015, draft report--redacted:
https://www.judiciary.senate.gov/imo/media/doc/EARS--
Redacted
%20FINAL.pdf............................................... 1036
CONFIRMATION HEARING ON THE
NOMINATION OF HON. LORETTA E. LYNCH
TO BE ATTORNEY GENERAL
OF THE UNITED STATES
----------
WEDNESDAY, JANUARY 28, 2015,
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
Room SH-216, Hart Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley, Hatch, Sessions, Graham,
Cornyn, Lee, Cruz, Flake, Vitter, Perdue, Tillis, Leahy,
Feinstein, Schumer, Durbin, Whitehouse, Klobuchar, Franken,
Coons, and Blumenthal.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. Good morning. I welcome everyone to this
very, very important hearing. Before we start, I would like to
state a few things. These are some ground rules, pretty much
the same as what former Chairman and my friend Senator Leahy
and others have stated in the past.
I want everyone to be able to watch the hearing without
obstruction. If people stand up and block the view of those
behind them or speak out of turn, it is not fair or considerate
to others. So officers would then remove those individuals. I
know that there is a lot to protest regarding this
administration's policies, but this is not the time or place to
do it.
Before I turn to our opening statements, I want to go over
a couple of housekeeping items and explain how we are going to
proceed. Senator Leahy and I will give our opening statements.
Then I will call on Senators Schumer and Gillibrand to
introduce the nominee. Following Ms. Lynch's opening remarks,
we will begin with the first round of questions in which each
Senator will have 10 minutes. After the first round, we are
going to do 8-minute rounds of questions. I want everyone to
know that I am prepared to stay here as long as Members have
questions that they would like to ask.
I think this is the most fair way to proceed both to the
responsibilities of the Senate and Senators and, most
importantly, to the nominee who has to sit here through all of
this and answer our questions. And I think we all know that
this is a very important position in the Cabinet, and we should
do what we can to move it along within our rules. We have a lot
of ground that we want to cover in live questioning.
One final note on scheduling. I would like to take a short
break of maybe 45 minutes sometime around 12:30 or 1 o'clock,
and I know that we have a series of stacked votes this
afternoon in regard to, I think, 18 amendments we have to vote
on. The plan right now is to keep this hearing going even
though it may be a very chaotic way to do things and maybe not
as respectful to the position of Attorney General as it ought
to be, but I do not know how else to get through the process to
get every question asked that wants to be asked. So I would ask
that all of my colleagues remain very flexible and keep it
going, and that means some accommodation by Members on my side
of the aisle to chair when I cannot be here and am over there
voting.
With that, I am going to turn to my opening statement, then
immediately go to Senator Leahy.
Ms. Lynch, I have had a chance to talk to you privately on
two occasions. I welcome you to the Senate Judiciary Committee.
It is a very big day for you and especially for family and
friends that are proud of you. I congratulate you on your
nomination.
You have already been confirmed by the Senate as U.S.
Attorney, but the process involved to serve as the 83rd
Attorney General is a bit more rigorous. For one thing, U.S.
Attorneys do not even have hearings, let alone one like this.
So my hope is that we discuss some of the most important
matters facing our Nation, and in the process of doing that,
then we will get to know you a bit better. The fact of the
matter is this nomination comes at a pivotal time for the
Department of Justice and for our country. And as I discuss
some of those things, those are probably things you have had
nothing to do with. But you have an opportunity to make some
changes.
The next Attorney General will face some very difficult
challenges, from combating cybercrime, to protecting our
children from exploitation, to helping fight the war on terror.
But I am not just concerned about the tough decisions that
come with the office. There are challenges facing the
Department of Justice that go to the heart of our system of
Government.
How about restoring faith in the bedrock principles like
respect for the rule of law and the fair and evenhanded
application of those laws?
How about restoring respect for the co-equal branches of
Government?
How about taking care that the law is faithfully executed
and not rewriting it?
How about the Department of Justice honoring, once again,
its longstanding duty to vigorously defend our Nation's laws--
even when political appointees disagree with the policy?
Then there is the Office of Legal Counsel. I am interested
in returning that office to its rightful place as the impartial
``crown jewel'' of the Justice Department. Its opinions should
be firmly rooted in the Constitution's text, neutral
interpretation of statutes, and sound judicial precedent. They
should not be transparently self-serving attempts to justify
whatever the President or an Attorney General wants to do for
political reasons.
And let me say it right here: The Office of Legal Counsel
should be sharing with the American public the opinions it is
providing to the President, especially when they supposedly
sanction the unprecedented authority he claims to possess. And
I am going to work to see that it does. The public's business
ought to be public.
Transparency, I believe, and, in fact, does bring
accountability.
These ideals and principles are foundational to the
Republic. But ideals and principles are not simply academic,
and they do not exist in a vacuum.
Over the last few years, public confidence in the
Department's ability to do its job without regard to politics
has been shaken, with good reason.
It is not just Republicans who see the problem or who
recognize it has real-world effects on our own fellow
Americans. The Department's own Inspector General listed as one
of its top management challenges ``Restoring Confidence in the
Integrity, Fairness, and Accountability of the Department.''
The IG cited several examples, including the Department
falsely denying basic facts in the Fast and Furious
controversy. The Inspector General concluded this ``resulted in
an erosion of trust in the Department.'' In that fiasco, our
Government knowingly allowed firearms to fall into the hands of
international gun traffickers, and it led to the death of
Border Patrol Agent Brian Terry.
And then, after Congress called on the leadership of the
Department to account for this foolish operation, what did they
do? Did they apologize to the family and rush to uncover the
truth?
Quite the opposite. They denied, spun, and hid the facts
from Congress and the American people. They bullied and
intimidated whistleblowers, members of the press, and anyone
who had the audacity to investigate and to uncover the truth.
The Department has also failed to hold another Government
agency accountable: the Internal Revenue Service. We watched
with dismay as that powerful agency was weaponized and turned
against individual citizens. And why? What exactly did these
fellow citizens do to make their Government target them? They
had the courage to get engaged and speak out in defense of
faith, freedom, and our Constitution. And for that, they then
were targeted by the IRS.
What was the Justice Department's reaction to the targeting
of citizens based on political beliefs? Well, they appointed a
campaign donor to lead an investigation that has not gone
anywhere and called it then a day. That simply is not good
enough.
Meanwhile, the Department's top litigator, the Nation's
Solicitor General, is arguing in case after case for
breathtaking expansions of Federal power.
I would like to have you consider this: Had the Department
prevailed in just some of the arguments that it pressed before
the Supreme Court in the last several years, there would be
essentially no limit on what the Federal Government could order
States to do as a condition of receiving Federal money.
Another case, the Environmental Protection Agency could
fine a homeowner $75,000 a day for not complying with an order
and then turn around and deny that homeowner any right to
challenge the order or those fines in court when the order is
issued.
The Federal Government could review decisions by religious
organizations regarding who can serve as a minister.
The Federal Government could ban books that expressly
advocate for the election or defeat of political candidates.
And the Fourth Amendment would not have anything to say about
the police attaching a GPS device to a citizen's car without a
warrant and constantly tracking their every movement for months
and years.
These positions are not mainstream, in my judgment. At the
end of the day, the common thread that binds all these
challenges together, in my judgment, is a Department of Justice
that is very deeply politicized. But that is what happens when
an Attorney General of the United States views himself--and
these are his own words--as the President's ``wingman.''
I do not expect Ms. Lynch and I will agree on every issue.
But I for one need to be persuaded that she will be an
independent Attorney General. And I have no reason to believe
at this point she will not be. The Attorney General's job is to
represent the American people, not just the President and not
just the executive branch.
So today we will hear from Ms. Lynch. As far as I know, Ms.
Lynch has nothing to do with the Department of Justice's
problems that I just outlined, but as a new Attorney General,
she can fix them.
Tomorrow we will hear from a second panel of witnesses,
many of whom will speak directly to the many challenges facing
the Justice Department.
As I listen to both panels, I will be considering whether
Ms. Lynch has what it takes to fix the Obama Justice
Department.
We need to get back then to first principles, and that
starts with depoliticizing the Department of Justice, because
the American people deserve better. So I hope Ms. Lynch can fix
these flaws.
Senator Leahy.
OPENING STATEMENT OF HON. PATRICK J. LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Senator Leahy. Thank you. I will not speak as long because
I just want to focus on Loretta Lynch and not on all the
problems that some may see in this country.
It is a pleasure to welcome her to this Committee. She is
smart, she is tough, she is hard-working and independent. She
is a prosecutor's prosecutor, and her qualifications are beyond
reproach. She has been unanimously confirmed by the Senate
twice before to serve as the top Federal prosecutor based in
Brooklyn, New York, and I hope we have another swift
confirmation for Ms. Lynch.
As U.S. Attorney for the Eastern District of New York, she
has brought terrorists and cybercriminals to justice. She has
obtained convictions against corrupt public officials from both
political parties. She has fought tirelessly against violent
crime and financial fraud. She has remained determined to
protect the rights of victims.
Ms. Lynch has worked hard to improve the relationships
between law enforcement and the communities they serve, and
that is probably one of the reasons why her nomination enjoys
strong support from both. She has prosecuted those who have
committed crimes against police officers, as well as police
officers who have committed crimes. Her record shows that, as
Attorney General, Ms. Lynch will effectively, fairly, and
independently enforce the law.
I hope we all remember that she is the nominee for Attorney
General, and that is why I am focusing on her. She was born in
North Carolina, the daughter of a Baptist preacher and a school
librarian, and we are honored to have members of her family
here with us today. And I know you will be introducing them
later.
She grew up hearing her family speak about living in the
Jim Crow South, but she never lost faith that the way to obtain
justice is through our legal system. And her nomination is
historic. When she is confirmed as the 83rd Attorney General of
the United States, she will be the first African-American woman
to lead the Department of Justice.
Really, I cannot think of anyone more deserving of that
honor.
She is going to lead a Justice Department that faces
complex challenges. Nearly one-third of its budget goes to the
Bureau of Prisons, and that drains vital resources from nearly
all other public safety priorities. Think of that. A third of
the budget goes to prisons.
A significant factor leading to this budget imbalance is
the unnecessary creation of more and more mandatory minimum
sentences. Passing new mandatory minimum laws has become a
convenient way for lawmakers to claim that they are tough on
crime--even when there is no evidence that these sentences keep
us safer. And it is one of the reasons why we have the largest
prison population in the world. It is why I oppose mandatory
minimums. I hope we can find a way to face this mass
incarceration problem.
And the Justice Department needs strong leadership to keep
up with the rapid development of technology. We must stay ahead
of the curve to prevent and fight threats to cybersecurity and
data privacy. Think what it would have been like the last few
days in the Northeast if a cyberterrorist could have closed
down all of our electrical grids.
The growing threat of cybercrime is very real, but so is
the specter of unchecked Government intrusion into our private
lives, particularly dragnet surveillance programs directed at
American citizens. The intelligence community faces a critical
deadline this June when three sections of the Foreign
Intelligence Surveillance Act are set to expire.
I believe we have to protect our national security, but we
also have to protect our civil liberties which make us unique
as a country. So we have to reform our Nation's surveillance
laws so we can realize both goals.
The next Attorney General is going to play an essential
role in protecting all Americans. All Americans. The
President's selection for Attorney General, no matter who the
President is, deserves to be considered swiftly, fairly, and on
the nominee's own record. I believe Americans realize that a
role this important cannot be used as just one more sound bite,
a Washington political football. I am confident that if we stay
focused on Ms. Lynch's impeccable qualifications and fierce
independence, she is going to be confirmed quickly by the
Senate. She deserves a fair, thoughtful, and respectful
confirmation process. And the American people deserve an
Attorney General like Ms. Lynch. So I thank you for your years
of public service. I look forward to your testimony.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Grassley. For those of you who are new to a
hearing, it is tradition that Senators from the home State
introduce nominees from their State. So I am now going to call
on Senator Schumer and then Senator Gillibrand, the Senators
from New York, to do that. And since we are under such a tight
schedule, if I could ask you to keep it to 5 minutes, it would
be very nice. Thank you.
PRESENTATION OF LORETTA E. LYNCH, NOMINEE TO BE
ATTORNEY GENERAL OF THE UNITED STATES, BY
HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW
YORK
Senator Schumer. Thank you, Mr. Chairman. I want to thank
you and Ranking Member Leahy and the Members of the Committee.
It is my great privilege to introduce Loretta Lynch, a proud
New Yorker and the nominee to be the next Attorney General of
the United States.
Born in North Carolina, her father was a fourth-generation
Baptist minister, a man who grew up in the segregated South,
and her mother picked cotton when she was a girl so her
daughter would never have to.
Well, their daughter grew up to be one of the keenest legal
minds our country has to offer, someone who has excelled at
every stage of her education and her career, while cultivating
a reputation as someone who is level-headed, fair, judicious,
and eminently likable. If there is an American dream story, Ms.
Lynch is it. And adding to the American dream story, Ms.
Lynch's late brother Lorenzo was a Navy SEAL.
Still, despite her intellectual and career achievements,
Ms. Lynch has always been a nose-to-the-grindstone type, rarely
seeking acclaim, only a job well done. She has earned a
reputation for keeping her head down and avoiding the
spotlight. Just like me.
[Laughter.]
Senator Schumer. At just over 5 foot and with her
consistent understated approach to the public spotlight, some
might underestimate Ms. Lynch. But as hundreds of criminals
have learned the hard way, looks can be deceiving, and Ms.
Lynch packs a powerful punch.
When you look at the breadth and depth of the cases she has
handled, it is clear Loretta Lynch is law enforcement's
renaissance woman. One I would mention: the Abner Louima case,
where she convicted police officers who horribly abused a
Haitian immigrant.
As we have seen, these types of cases can create great
tension between the police and the community. But despite the
high-running emotions that accompanied this notorious case, Ms.
Lynch was praised by lawyers on both sides, as well as
community leaders and police officials, for her judicious,
balanced, and careful approach.
Mr. Chairman, Members of this Committee, in this age of
global terrorism, the AG's role in national security has never
been more important. It makes apparent that the confirmation of
a new Attorney General cannot and should not be delayed any
longer.
Today we have already heard and will hear a lot more about
issues completely unrelated to Ms. Lynch's experience and her
qualifications. If anything, that just goes to show how
qualified she is. No one can assail Loretta Lynch, and no one
has, who she is, what she has done, and how good an Attorney
General she would be. So instead some are trying to drag
extraneous issues--Executive orders on immigration, the IRS--
into the fray to challenge her nomination because they cannot
find anything in her record to point to.
Let me be clear: Attempts to politicize this nomination, to
turn this exceptional nominee into a political point-scoring
exercise, are a disservice to the qualified candidate we have
before us today.
I originally recommended Loretta Lynch for the position of
U.S. Attorney in 1999 because I thought she was excellent. Sure
enough, she was. When President Bush took office, she went to
the private sector to earn some money.
But when I had the opportunity to recommend a candidate to
President Obama, I was certain I wanted Ms. Lynch to serve
again. So I called her on a Friday afternoon. She was happy
with her life in the law firm. But I was confident that, with
the weekend to think it over, she would be drawn to answer the
call to public service. And sure enough, her commitment to
public service was so strong that she called me back on Monday
to say yes.
She passed unanimously out of the Senate twice already.
Wouldn't it be nice if we could pass her unanimously out of
the Senate a third time? Based on her record, we should. Mr.
President, if we cannot confirm Loretta Lynch, then I do not
believe we can confirm anyone. And I would like to remind my
colleagues that the President's immigration policies are not
seeking confirmation today. Loretta Lynch is.
When we move to vote, hopefully sooner rather than later,
you will not be voting for or against the President's policies.
You will be voting on this eminently qualified law enforcement
professional, first-rate legal mind, and someone who is
committed in her bones to the equal application of justice for
all people.
Thank you, Mr. Chairman.
Chairman Grassley. Thank you, Senator Schumer.
Senator Gillibrand.
PRESENTATION OF LORETTA E. LYNCH, NOMINEE TO BE
ATTORNEY GENERAL OF THE UNITED STATES, BY
HON. KIRSTEN E. GILLIBRAND, A U.S. SENATOR FROM THE STATE OF
NEW YORK
Senator Gillibrand. Thank you, Mr. Chairman and Ranking
Member Leahy. I am honored to be here today with Senator
Schumer to introduce United States Attorney for the Eastern
District of New York, Loretta Lynch, as President Obama's
nominee to serve as the next Attorney General of the United
States.
To serve as United States Attorney General requires deep
experience in the field of law. It also requires a brilliant
intellect, and it requires a steady moral compass.
I met with Ms. Lynch 2 months ago, and I can tell you she
meets all of those criteria. She is strong, tough, independent,
and fearless, and as one of our country's most accomplished and
distinguished women serving in law enforcement, I urge my
colleagues to support her nomination.
She is an outstanding candidate for this job. Ms. Lynch
began her service as the U.S. Attorney for the Eastern District
of New York in 1990 where she rose quickly to serve as Chief of
the Long Island Office and then Deputy Chief of General Crimes,
and Chief of Intake and Arraignments. For 15 years, she has
been a prosecutor in the U.S. Attorney's Office for the Eastern
District of New York, and since 2010, she has served admirably
as the United States Attorney for the Eastern District of New
York. In that position, she has demonstrated a superior sense
of judgment and remarkable legal expertise.
Ms. Lynch has dealt with an impressive array of cases on
subjects ranging from civil rights to organized crime to
terrorism. These are each issues that our new Attorney General
will have to engage with constantly from Day 1 of her tenure.
Ms. Lynch's experience as a Federal prosecutor in New York
will undoubtedly serve her exceptionally well in Washington.
She is extraordinarily well qualified, and I believe she
deserves a quick confirmation process.
Thank you, Mr. Chairman.
Chairman Grassley. Thank you, Senator Gillibrand.
[Pause.]
Chairman Grassley. Before you seat yourself, would you take
an oath, please? Would you raise your hand? And I will give the
oath. Do you affirm that the testimony you are about to give
before the Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Ms. Lynch. I do.
Chairman Grassley. Thank you.
The Committee welcomes you, and I know that it is an honor
for all of us to have you before us. But it is also an honor
for you to be selected by the President, and it is quite an
honor for your family. So I would ask, before you make your
statement, if you would like to introduce anybody to the
Committee and speak about them any way you want to.
And then if there are people that are not introduced by you
that you would like to have their name in the record and you
would submit their names, I would be glad to include that in
the record.
So would you proceed as you choose?
Senator Leahy. Turn your microphone on.
Chairman Grassley. Yes, I think the microphone is not
automatic.
STATEMENT OF HON. LORETTA E. LYNCH, NOMINEE
TO BE ATTORNEY GENERAL OF THE UNITED STATES
Ms. Lynch. Thank you, Senator. Let me introduce for the
record: I am delighted to welcome numerous family and friends
here with me today.
I would like to introduce, first and foremost, my father,
the source of my inspiration in so many ways. He is to my
immediate left, the Reverend Lorenzo Lynch.
Immediately to his left is my husband, Stephen Hargrove,
who has supported me in all of my endeavors, no matter how poor
they make us.
[Laughter.]
Ms. Lynch. Immediately to his left is my younger brother,
the Reverend Leonzo Lynch, who is the fifth generation of
ministers in a direct line in my family; and my sister-in-law,
NiCole Lynch.
I am also here with several other family members and
friends whom I would love to introduce, but I am informed that
you have a schedule for the afternoon, so I will keep to that.
But let me say to all of them how tremendously gratified I am
for their support, not just today but over the years.
Chairman Grassley, Senator Leahy, distinguished Members of
this Committee, I am honored to appear before you in this
historic chamber, among so many dedicated public servants.
I want to thank you for your time this morning, and I also
want to thank President Obama for the trust he has placed in me
by nominating me to serve as Attorney General of the United
States.
It is a particular privilege to be joined here today by
members of my family that I have introduced, as well as the
other numerous family and friends who have come to support me
and for whose travel and service I am so appreciative.
Mr. Chairman, one of the privileges and, in fact, one of my
favorite things in my position as United States Attorney for
the Eastern District of New York is welcoming new attorneys
into my office and administering to them the oath of office. It
is a transformative moment in the life of a young prosecutor
and one that I actually remember well.
And as they stand before me, prepared to pledge their honor
and their integrity, I remind them that they are making their
oath not to me, not to the office, not even to the Attorney
General, but to our Constitution, the fundamental foundation
for all that we do. It is to that document and the ideals
embodied therein that I have devoted my professional life. And,
Senators, if confirmed as Attorney General, I pledge to you
today and to the American people that the Constitution, the
bedrock of our system of justice, will be my lodestar as I
exercise the power and the responsibility of that position.
I owe so much to those who have worked to make the promise
of that document real for all Americans, beginning with my own
family. All of them--and so many others--have supported me on
the path that has brought me to this moment, not only through
their unwavering love and support, which is so beautifully on
display today, but through their examples and the values that
have shaped my upbringing.
My mother, Lorine, who was unable to travel here today, is
a retired English teacher and librarian for whom education was
the key to a better life. She still recalls people in her rural
North Carolina community pressing a dime or a quarter into her
hands to help support her college education. As a young woman,
she refused to use segregated restrooms because they did not
represent the America in which she believed. She instilled in
me an abiding love of literature and learning and taught me the
value of hard work and sacrifice.
My father, Lorenzo, who is here with me today, is a fourth-
generation Baptist preacher who in the early 1960s opened his
Greensboro church to those planning sit-ins and marches,
standing with them while carrying me on his shoulders. He has
always matched his principles with his actions--encouraging me
to think for myself, but reminding me that we all gain the most
when we act in service to others.
It was the values my parents instilled in me that led me to
the Eastern District of New York, and from my parents I gained
the tenacity and resolve to take on violent criminals, to
confront political corruption, and to disrupt organized crime.
They also gave me the insight and the compassion to sit with
the victims of crime and share their loss. Their values have
sustained me as I have twice had the privilege--indeed, the
honor--of serving as United States Attorney, leading an
exceptional office staffed by outstanding public servants, and
their values guide and motivate me even today.
Senators, should I be confirmed as Attorney General, my
highest priorities will continue to be to ensure the safety of
all of our citizens, to protect the most vulnerable among us
from crime and abuse, and to strengthen the vital relationships
between America's brave law enforcement officers and the
communities they are entrusted to serve.
In a world of complex and evolving threats, protecting the
American people from terrorism must remain the primary mission
of today's Department of Justice.
If confirmed, I will work with colleagues across the
executive branch to use every available tool to continue
disrupting the catastrophic attacks planned against our
homeland and to bring terrorists to justice.
I will draw upon my extensive experience in the Eastern
District of New York, which has tried more terrorism cases
since 9/11 than any other office. We have investigated and
prosecuted terrorist individuals and groups that threaten our
Nation and its people, including those who have plotted to
attack New York City's subway system, John F. Kennedy Airport,
the Federal Reserve Bank of New York, and U.S. troops stationed
abroad, as well as those who have provided material support to
foreign terrorist organizations.
And I pledge to discharge my duties always mindful of the
need to protect not just American citizens, but American
values.
If confirmed, I intend to expand and enhance our
capabilities in order to effectively prevent ever-evolving
attacks in cyberspace, to expose those wrongdoers and bring
those perpetrators to justice as well.
In my current position I am proud to lead an office that
has significant experience prosecuting complex, international
cybercrime including high-tech intrusions at key financial and
public sector institutions. If I am confirmed, I will continue
to use the combined skills and experience of our law
enforcement partners, the Department's criminal and national
security divisions, and the United State's Attorney community
to defeat and hold accountable those who would imperil the
safety and security of our citizens through cybercrime. I will
also do everything I can to ensure that we are safeguarding the
most vulnerable among us.
During my tenure as U.S. Attorney, the Eastern District of
New York has led the prosecution against financial fraudsters
who have callously targeted hard-working Americans--including
the deaf and elderly--and stolen not just their trust, but
their hard-earned savings. We have taken action against abusers
in over 100 child exploitation and child pornography cases and
we have prosecuted brutal international human trafficking rings
that have sold--sold victims as young as 14 and 15 into sexual
slavery.
If confirmed as Attorney General, I will continue to build
upon the Department's record of vigorously prosecuting those
who prey on those most in need of our protection, and I will
continue to provide strong and effective assistance to
survivors, who we must both support and empower.
Senators, throughout my career as a prosecutor, it has been
my signal honor to work hand-in-hand with dedicated law
enforcement officers and agents who risk their lives every day
in the protection of the communities we all serve. I have
served with them. I have learned from them. I am a better
prosecutor because of them.
Few things have pained me more than the recent reports of
tension and division between law enforcement and the
communities we serve.
If confirmed as Attorney General, one of my key priorities
would be to work to strengthen the vital relationships between
our courageous law enforcement personnel and all of the
communities we serve.
In my career, I have seen this relationship flourish.
I have seen law enforcement forge unbreakable bonds with
community residents and I have seen violence-ravaged
communities come together to honor officers who have risked all
to protect them. And as Attorney General, I will draw all
voices into this important discussion.
In that same spirit, I look forward to fostering a new and
improved relationship with this Committee, the United States
Senate, and the entire United States Congress--a relationship
based on mutual respect and constitutional balance. Ultimately,
I know we all share the same goal and commitment to protect and
to serve the American people.
Now, I recognize that we face many challenges in the years
ahead, but I have seen in my own life and in my own family how
dedicated men and women can answer the call to achieve great
things for themselves, for their country, and for generations
to come.
My father, that young minister who carried me on his
shoulders, has answered that call, as has my mother, that
courageous young teacher who refused to let Jim Crow define
her. Standing with them are my uncles and cousins who served in
Vietnam, one of whom is here to support me today, and my older
brother, a Navy SEAL, all of whom answered that call with their
service to our country.
Senators, as I come before you today in this historic
chamber, I still stand on my father's shoulders, as well as on
the shoulders of all of those who have gone before me and who
dreamed of making the promise of America a reality for all, and
worked to achieve that goal.
I believe in the promise of America, because I have lived
the promise of America. And if confirmed to be Attorney General
of the United States, I pledge to all of you and the American
people that I will fulfill my responsibilities with integrity
and independence. I will never forget that I serve the American
people from all walks of life who continue to make our Nation
great, as well as the legacy of all of those whose sacrifices
have made us free.
And I will always strive to uphold the trust that has been
placed in me to protect and defend our Constitution, to
safeguard our people, and to stand as the leader and public
servant that they deserve.
Thank you all once again for your time and your
consideration. I greatly appreciate this opportunity to speak
with you today. I look forward to your questions and to all
that we may accomplish in the days ahead together in the spirit
of cooperation, shared responsibility and justice.
Thank you for your time today.
Chairman Grassley. And thank you, Ms. Lynch, for that
statement.
Before my 10 minutes starts for the first round, I would
like to talk to my colleagues just a minute, because of the 18
votes that are coming up this afternoon and because of the
chaotic situation, and the more important thing is getting this
hearing over in one sitting--in one day, even if it goes into
the evening.
I hope my colleagues will be cognizant of what we normally
do. Between Senator Leahy and I, we are fairly liberal on
letting people go over, and whether we have five-, seven- or
10-minute rounds in any hearing, my practice is generally if
you have got one second left, you can ask a question. But this
time, I would prefer that you kind of stick to the 10 minutes.
And I am not very good at gaveling people down, so take care of
my timidity, will you please?
[Laughter.]
Chairman Grassley. Now again, before the first 10 minutes
starts, I would like to make something clear, just for myself--
I cannot speak for my colleagues--and it takes on two things.
One, what you said about you wanted to improve relationships
with the Committee and with Congress. I--we welcome that very
much, and that will be very, very helpful, particularly in
regard to our responsibilities of oversight.
Secondly, taking off on something Senator Schumer said, and
just speaking for myself, if I use this subject or that subject
or another as a basis of maybe questioning what the President
or an Attorney General's done, I want it clear that that is not
the issue for me now. The issue is whether or not the
Constitution or the laws have been violated or whether the
Justice Department has acted in an appropriate way.
So now I would start with my questions.
On November the 20th last year, President Obama announced
that he would defer deportation of millions of individuals in
the country undocumented. Not only is this action contrary to
our laws, it is a dangerous abuse of Executive authority.
If you are confirmed as the next Attorney General, before
you take office, you will take an oath. You will raise your
right hand and swear ``to support and defend the Constitution
of the United States and to bear true faith and allegiance to
the same.'' Your duty as Attorney General is not to defend the
President and his policies; your duty is your oath, to defend
the Constitution.
So my first question, with that oath in mind, I ask you, do
you believe that the President has the legal authority to
unilaterally defer deportations in a blanket manner for
millions of individuals in the country illegally and grant them
permits and other benefits, regardless of what the U.S.
Constitution or--immigrations laws say?
Ms. Lynch. Thank you for the question, Senator, and you
raise a very important issue of how we manage the issue of
undocumented immigrants here in our country, while still
welcoming those who bring such great value to our shores, to
our business community and to our culture.
Certainly I was not involved in the decisions that led to
the Executive actions that you reference, and I am not aware
of, at this point, how the Department of Homeland Security has
set forth regulations to actually implement that, so I cannot
comment on the particulars of what will happen.
I have had occasion to look at the Office of Legal Counsel
opinion through which the Department of Homeland Security
sought legal guidance there, as well as some of the letters
from constitutional scholars who have looked at the similar
issue. And certainly it seems to be a reasonable discussion of
legal precedent, the relevant statute, congressional actions,
along with the enforcement discretion of the agency, and I do
not see any reason to doubt the reasonableness of those views.
I do think, however, that the ultimate responsibility of
the Department of Justice is to always, when presented with
issues by the White House or any agency, to review those issues
carefully, to apply the relevant law and make a determination
as to whether or not there is a legal framework that supports
the requested action.
And I found it interesting, as I was reading the legal
counsel opinion, that some of the proposals that were--that
were set forth and asked about, the Office of Legal Counsel
opined did not in fact have a legal framework, and I do not
believe that those were actually implemented.
So I do think it is very important that as the Department
of Justice, through any of its agencies, be it the Office of
Legal Counsel or in a direct conversation with the President or
any other member of the Cabinet, always ensure that they are
operating from a position of whether or not there is a legal
framework that supports the requested action. And the advice
provided must be thorough, it must be objective, and it must be
completely independent.
Chairman Grassley. Let me take off on one word you used,
``discretion,'' and I presume that may have applied to
prosecutorial discretion that was part of the President's
rationale.
If this is lawfully exercised on an individual basis,
depending on the facts of a specific case, it is in fact case-
by-case. So this is not so much a philosophical question as a
practical thing.
What it does not allow anybody to do is tell whole
categories of people that the law will not apply to them going
forward. No one seriously disputes these broad principles; even
the Office of Legal Counsel opinion on the President's
Executive action accepts them.
So let me ask you this. What are the outer limits of the
doctrine of prosecutorial discretion, and why don't the
President's actions exceed those boundaries? When we are
talking about millions of people, how does this action
realistically allow for a case-by-case exercise of discretion?
Ms. Lynch. Senator, as I reviewed the opinion and looked at
the issues presented therein from the perspective of my career
as a prosecutor and as a United States Attorney, and applying
those principles of the exercise of discretion, I viewed it as
a way in which the Department of Homeland Security was seeking
legal guidance on the most effective way to prioritize the
removal of large numbers of individuals, given that the
resources would not permit removal of everyone who fell within
the respective category.
And that certainly was the framework from which I viewed
that. And looking at it from that perspective, the Department
of Homeland Security's request and suggestion that they in fact
prioritize the removal of the most dangerous of the
undocumented immigrants among us--those who have criminal
records, those who are involved in national security and
terrorism, those who are involved in gang activity, violent
crime, along with, I believe, people who have recently entered
and could pose a threat to our system--seemed to be a
reasonable way to marshal limited resources to deal with the
problem.
As a prosecutor, however, I have had experience, obviously,
in doing similar things and finding the best way to attack a
serious problem with limited resources. But as a prosecutor, I
always want the ability to still take some sort of action
against those who may not be in my initial category as the most
serious threat. And I did not see anything in the opinion that
prevented action being taken against individuals who might
otherwise qualify for the deferral.
Again, I am not aware of how the Department will actually
go forward and implement by regulation this matter. I have not
had the occasion to study that, and I do not know in fact if
those are out.
Certainly, if I am confirmed as Attorney General, I look
forward to learning more about that process and making sure
that we are using all of our resources to protect the American
people, particularly against the dangerous offenders who
rightfully stand at the top of the removal list.
Chairman Grassley. Yes. Well, I think you are telling me
that you can do it for a few thousand or a few tens of
thousands of people that maybe have committed a crime or
something, but it seems to me to be--common sense would dictate
that it is impossible to do prosecutorial discretion the way it
has traditionally been done on an individual basis for the
millions that are left over.
Let us move on. I would like to move away from the
President's refusal to enforce the law and talk a little bit
about this administration's failure to apply the law in an
evenhanded way.
According to the--this goes to the IRS. According to the
Treasury Department Inspector General--now, that is not me, the
Inspector General--the IRS used inappropriate criteria to deny
tax-exempt status to predominantly conservative organizations,
asked unnecessary questions and lastly, slowed approval of
their application.
Initially, President Obama remarked that any IRS actions to
target conservatives would be ``outrageous.'' Then last
February the President said there was not ``even a smidgeon of
corruption'' in what occurred at the IRS. ``A smidgeon of
corruption.''
Yet a few months later, in June, the director of the FBI,
Director Comey, testified before the House Judiciary Committee
that there was a ``very active'' ongoing criminal investigation
into the matter. So this brings me to these questions.
I would like to know how to reconcile these two statements.
If what the President said was accurate, then why in the world
would the FBI be conducting an ongoing criminal investigation?
A rhetorical question: Would the FBI investigation be just for
show? I would like--I am going to take Director Comey at his
word.
So if there is an ongoing criminal investigation at the
FBI, then how could it be possible--be appropriate for the
President to reach a conclusion about the facts before Director
Comey?
Ms. Lynch. Thank you, sir, and let me state at the outset
that with regards to the actions of any of the agencies of our
Government, there is certainly no place for bias or favoritism
or anything other than the evenhanded application of the
relevant laws and regulations. And certainly that has always
been my goal as a prosecutor, and would be my continued goal
should I be confirmed.
With respect to the IRS investigation, I am generally aware
that there is an investigation going on, but it is not a matter
that is either being conducted by my office or that I have been
briefed on as United States Attorney. So I am not able to
comment on the status now, except state that I do----
Chairman Grassley. Based on what you just said, then, I can
shorten this up by asking you this question. You have spent a
career in law enforcement. When would it ever be appropriate
for any President to know the results of a criminal
investigation and then comment on it publicly while the
investigation is still ongoing?
Ms. Lynch. Senator, it--with respect to this investigation
or any other, I am not aware of the context or the basis for
the President's remarks, so I am not able to determine whether
or not they were in fact done after any evaluation of the
investigation or whether they were a matter of opinion. So I am
not able to comment on that specific remark.
Certainly, as part of the Department of Justice's exercise
of its powers, whether at the United States Attorney level or
here in Washington, investigations are handled independently
and without provision of materials or information about them--
before their conclusion--to others in the executive branch or
other agencies.
Chairman Grassley. Senator Leahy. Thank you very much.
Senator Leahy. Thank you, Mr. Chairman.
You know, I have been fortunate that my native State of
Vermont has allowed me to serve here for four decades. I have
listened in several different Committees I have been on to a
lot of statements by nominees. I cannot think of one that is so
moving as your statement, and I intend to make sure I have some
copies for all members of my family and other friends.
You know, my years in law enforcement as State's Attorney
in Vermont gave me a lot of respect for the difficult and
dangerous work we ask police officers to do every day. I know
the toll it can take, not only on the officers, but oftentimes
on their families.
Ms. Lynch. Yes.
Senator Leahy. I have tried to support the work of law
enforcement to keep our communities safe. They have to have the
resources they need, whether it is bulletproof vests or funding
for innovative criminal justice efforts.
I have also been deeply moved by the tragic events in
Ferguson and New York. They have focused on what we know is a
reality--strained relations between law enforcement and the
communities they serve. I appreciate your reference to that in
your statement. But you have worked very hard as a U.S.
Attorney to bring both law enforcement and the communities
together. Could you elaborate on that a little bit more?
Ms. Lynch. Yes, thank you, Senator. I think you have raised
one of the most important issues facing our country today,
which is the need to resolve the tensions that appear to be
discussed and appear to be rising between law enforcement and
the communities that we serve. In my experience as a prosecutor
and United States Attorney, these tensions are best dealt with
by having discussions between all parties so that everyone
feels that their voice has been heard.
With respect to our brave law enforcement officers, we ask
so much of them. We ask them to keep us safe; we ask them to
protect us, literally, from ourselves, and we ask them to do it
often without the resources that they need to be safe and
secure themselves. Yet they still stand up every day and risk
their lives for us.
Many of our community residents, because of a host of
factors, feel disconnected from government in general today,
and when they interact with law enforcement, transfer that
feeling to them as well, even if someone is there to help. What
I have found most effective is getting people together and
simply listening to their concerns, being open, helping them
see that in fact we are all in this together and that the
concerns of law enforcement, a safe society, a free society,
are the exact same concerns of every resident of every
community there.
Senator Leahy. And would you agree that that is something
that has to be considered by not only Federal law enforcement,
but by State and local law enforcement, and that the Federal
Government can help the State and local law enforcement in that
respect?
Ms. Lynch. Absolutely, Senator. One of the most important
roles that the Department of Justice plays is not necessarily
its most visible role, but it is the support that we provide to
State and local law enforcement partners through our grant
program and through our training program. We try our best to
provide them with the resources that they need to carry out
their jobs safely and effectively.
Senator Leahy. You know, we all know that no prosecutor's
office has the resources to prosecute every single crime before
it, and you have to decide which ones have priority. Let me
talk about one.
In State court, there is a case where a child rapist would
receive two years. You obviously disagree with that.
You have brought Federal charges. And I think Bill O'Reilly
on Fox called you a hero and said, ``You should be respected by
all Americans for standing up to gross injustice,'' and I
agree. I agree with Bill O'Reilly on that.
More and more of the Justice Department's budget, as I said
earlier, is going into our Federal prison system, so you have
limited resources. How do you make these kind of judgments? How
do you determine which cases are the important ones? A very
difficult thing, realizing if you go after certain cases, it
means you do not have the resources to go after others.
Ms. Lynch. Certainly, Senator. One of the privileges of
being the U.S. Attorney for the Eastern District of New York
has been the ability to work with so many of my United States
Attorney colleagues across the country.
All of us engage in this process every day, and we start
with a full and frank evaluation, with our law enforcement
partners, of the crime issues facing our particular districts.
We try and determine what are the greatest threats to the
people that we have sworn to serve.
And that is what I do in the Eastern District of New York
every day. We then look at our resources and set priorities and
goals to achieve the safest communities that we can.
But Senator, we do have to always, always maintain the
flexibility to look at specific cases such as the Goodman case
and determine if a Federal interest exists and if, in fact, a
victim has not been protected and has not been heard, and use
Federal resources there as well.
Senator Leahy. Well, let me go into one that takes
resources--we have had some people say to actually go get
terrorists and lock them up in Guantanamo, even though we know
what that has cost the American people, both in respect abroad
and in dollars.
You have successfully prosecuted a number of terrorism
cases in the Eastern District of New York, cases against
individuals--plotting against John F. Kennedy Airport, the
Federal Reserve Bank, and so on.
Just this month, you charged two Al-Qaeda members for
attacking American troops in Afghanistan and Iraq. I was
impressed, not only in your district, but in other parts of the
country, where we have actually brought these terrorists to
trial in our Federal courts. We have shown the rest of the
world we can do it. There have been convictions, Osama bin
Laden's son-in-law being one, and then they have been locked
up.
Now, do you find the criminal justice system--I think I
know your answer--an important terrorism tool?
Ms. Lynch. Senator, it is certainly an important
counterterrorism tool in the arsenal of tools that we have to
deal with this ever-growing and ever-evolving threat. Let me
say, at the outset, my view is that if terrorists threaten
American citizens here or abroad, they will face American
justice.
We work with our counterparts throughout the executive
branch to determine, based on every case, the most appropriate
venue for bringing terrorists to justice, as our primary goal
is to incapacitate them and prevent further destruction.
Certainly within my own career as U.S. Attorney when
cases--when the decision has been made that the case should be
handled by a U.S. Attorney's Office, we proceed in that
fashion.
We also work closely, however, with the Office of Military
Commissions and consult with them and share information to make
those decisions as to what is in fact the best way to manage
every case.
Senator Leahy. I want to ask you a question I have asked
each of the previous Attorney General nominees, and I say this
because I think of the tremendous effort of the Senator from
California, Senator Feinstein, who is sitting here--her
tremendous efforts to confront acts of torture carried out in
our country's name.
Do you agree that waterboarding is torture and that it is
illegal?
Ms. Lynch. Waterboarding is torture, Senator.
Senator Leahy. And thus illegal?
Ms. Lynch. And thus illegal.
Senator Leahy. Thank you.
And I know you are going to be asked a lot about
immigration. Well, it makes me think we should be focusing on
your qualifications for this job. Asking those questions might
also speak to some of the qualifications of Congress.
We worked for months in this Committee, night and day,
hundreds of hours, hearings, markups, debate, and we passed, by
a strong bipartisan majority, an immigration bill that
referenced so many of these things that we now hear discussed.
In my opinion, there were votes enough to pass it in the
House of Representatives, but their leadership decided not to
bring it up. I think that was a mistake. So now we deal with
the question of Executive action.
You did not write the Executive action; you were not
consulted about it, were you?
Ms. Lynch. No, I was not aware of it until it was rendered.
Senator Leahy. And would you say, if you have got millions
of people in this country who may not be in a valid or legal
status, it would perhaps strain our resources to think about
how we would deport 10 to 12 million people?
Would that be a fair statement?
Ms. Lynch. I believe that statement is fair, sir.
Senator Leahy. Thank you.
Thank you, Mr. Chairman.
Chairman Grassley. Senator Hatch is the next one, but I
wanted to inform all the Committee Members that since everybody
on the Committee was here at the fall of the gavel, it will be
done on a seniority basis, as opposed to first-come, first-
served basis.
Senator Hatch is next.
Senator Hatch. Well, thank you, Mr. Chairman. I appreciate
it.
Ms. Lynch, welcome to the Judiciary Committee.
Ms. Lynch. Thank you.
Senator Hatch. I appreciate the service you have given in
this country, and I am impressed with your qualifications, and
I hope I can support your nomination.
It is important to hear what you understand your role and
duty will be. Do you agree that when the constitutionality of a
law is challenged, the Attorney General has a duty to defend
that law if reasonable arguments can be made?
Ms. Lynch. Senator, I believe that one of the first and
foremost duties of the Department of Justice is to defend the
laws as passed by this body.
Senator Hatch. All right. Now, I would like you to answer
these questions. I am trying to get through a number of them. I
think you can answer most of them yes or no, if you can.
If you are confirmed, will you commit to enforce and defend
the laws and the Constitution of the United States, regardless
of your personal and philosophical views on--any matter?
Ms. Lynch. Absolutely, sir.
Senator Hatch. Thank you. I am glad you said that.
Attorney General Holder answered that same question in the
same way. The Justice Department had made reasonable arguments
that the Defense of Marriage Act is constitutional, but then
the Attorney General chose to stop making those arguments
because of his personal views. And by breaking his promise, he
cast doubt about others who make the same commitment as you did
today.
Now, I do not doubt your sincerity. We have met together,
and I have a high opinion of you. But is there any more
assurance that you can give us on something like that?
Ms. Lynch. Senator, it is my view that when it comes to the
position of the Attorney General and the role of the Department
of Justice in defending the statutes as passed by this
Congress, the issue is not my personal view or any issue of
bias or policy, even. But it is the duty and responsibility of
the Department of Justice to defend those statutes.
Certainly, as we have seen, there may be rare instances
where--and again, I was not involved in those--in that
analysis, but there may be certain circumstances where careful
legal analysis raises constitutional issues.
Senator Hatch. But they would be rare----
Ms. Lynch. Those would be few and far between.
I also think that, should we reach that point, if there is
a matter, it is a matter that I would prefer to have discussion
about.
Senator Hatch. Okay. I appreciate that answer.
I am concerned that the administration has exceeded its
lawful authority in several ways in an effort to avoid working
with us up here in Congress. Now, I understand why they might
not want to work with Congress from time to time, but,
unfortunately, the Constitution requires us to work together,
and that the Justice Department has actually facilitated this
pattern of behavior, some people believe.
The Department has done so in a number of ways: in
exceeding and even contravening lawful authority in the
programs it helps administer, such as with the latest Executive
actions on immigration; in purporting to provide legal
justification for other agencies to ignore the law, as
apparently occurred with the transfer of Taliban terrorists out
of Guantanamo without notifying Congress, which is an
obligation; and in taking some extreme litigation positions
which, by my count, the Supreme Court has unanimously rebuked a
record 20 times.
Now, given these disturbing patterns, how can you assure us
that you will be independent, that you will say no to the White
House or other executive branch agencies when they wish to act
beyond the law as it is written?
Ms. Lynch. Senator, I think one of the most important
functions of the Department of Justice is to provide a legal
framework, if it exists, when questions are raised.
Senator Hatch. Right.
Ms. Lynch. But consistent with that, every good lawyer
knows you must also provide the information that indicates that
a legal framework may not exist for certain actions that
someone may want to take. Every lawyer has to be independent,
the Attorney General even more so, and I pledge to you that I
take that independence very seriously.
Senator Hatch. Well, you did that in my office, and I
appreciate that, because I think you will be a great Attorney
General if you will do that.
Last August, you gave a speech in Switzerland in which you
praised Attorney General Holder's initiative to limit mandatory
minimum sentences only to some of the criminals who Congress
said should receive them. But prosecutors, including even the
Attorney General, do not have authority to decide that entire
categories of defendants will not receive a sentence that the
Congress has mandated. Is not that another example of using
prosecutorial discretion to really, in effect, change the law
without Congress?
Ms. Lynch. Senator, with respect to the material that you
are referring to, when I did give that speech, I was referring
to the Department's ``Smart on Crime'' initiative, which seeks
to manage another intractable problem of the large number of
narcotics defendants and the limited resources that we have to
handle those defendants and prosecute them.
Senator Hatch. And I want to help you with that. I want to
help you with that.
Ms. Lynch. Yes, and prosecute them effectively. In fact, in
my own experience both as an Assistant United States Attorney
and United States Attorney, we have had to deal with similar
issues in the Eastern District of New York. We have had
tremendous issues with narcotics importations over the years,
and we have had to work out ways of resolving those cases. Many
of them go to trial, but we also have had to prioritize the
cases that we will seek mandatory minimums for and those which
we seek guideline sentences for.
But, importantly, with respect to the Smart on Crime
initiative, as pushed out and as has been implemented in the
field, every prosecutor from the United States Attorney on down
to line assistants are encouraged to still consider cases that
might fall into a category where initially you would not seek a
mandatory minimum but consider whether they would be
appropriate. And those cases have occurred, and they will
continue to occur.
Senator Hatch. Okay. I understand. As currently written,
the Electronic Communications Privacy Act, or ECPA, requires
only a subpoena for law enforcement to access email that has
been opened, even though a search warrant would be required for
a printout of the same communication sitting on a desk.
To make matters more complicated, ECPA is silent on the
privacy standard for accessing data stored abroad. Without an
actual legal framework in place, this puts the privacy of
American citizens at risk for intrusion by foreign governments.
In the coming days, I intend to reintroduce the LEADS Act,
which will promote international comity and law enforcement
cooperation. Will you commit to working with me on this
important subject? Because it is important we solve these
problems.
Ms. Lynch. Senator, the subject of electronic privacy is
central to so many of our freedoms, and as you point out, in an
era of ever-changing technology, we have to be vigilant to make
sure that we are not only providing law enforcement the tools
it needs but protecting our citizens' privacy. And I certainly
commit to you to working with you on this important legislation
and all the issues that will flow from it.
Senator Hatch. Well, thank you so much.
Trade secrets are among the most valuable assets for
American companies and currently are protected under Federal
criminal law by the Economic Espionage Act and by an array of
State civil laws. Unlike other forms of intellectual property,
however, there is no Federal civil remedy for trade secret
owners. I will reintroduce the Defend Trade Secrets Act in the
coming days with Senator Coons to provide an efficient Federal
remedy for trade secret owners.
Do you agree that trade secret owners should have the same
access to a Federal remedy as owners of other forms of
intellectual property?
Ms. Lynch. Senator, I think that the issue of trade
secrets, again, particularly as American technology becomes
ever more complex and becomes ever more a target from those
both in the U.S. and without who would seek to steal it, is an
increasingly important issue, and I look forward to working
with you to consider that statute. I am not familiar with the
provision that you raise, but it certainly touches on an
important issue of making sure that our companies and their
technology are protected.
Senator Hatch. Well, thank you so much.
I am today introducing legislation to help victims of child
pornography receive the restitution that Congress has already
said they deserve. The Supreme Court said last year that the
current restitution statute, enacted more than 20 years ago,
does not work for child pornography victims, and this
legislation will change that. I am joined by more than 30
Senators on both sides of the aisle, including 4 on this
Committee.
Do I have your commitment that, under your leadership, the
Justice Department will aggressively prosecute child
pornography and use tools like this legislation to help victims
get the restitution they need to put their lives back together?
Ms. Lynch. Senator, throughout my career, I have expressed
a commitment to prosecuting those who would seek to harm our
children, be it through child pornography or the actual abuse
of children, which often go hand in hand.
You certainly raise important issues about how can we make
these victims whole, and I look forward to working with you and
the Members of this Committee in reviewing that legislation as
well.
Senator Hatch. Thank you so much.
Now, I recently read a powerful book. I read it in one day.
It is titled ``License to Lie: Uncovering Corruption in the
Department of Justice.'' The author writes about many things,
including the debacle that occurred in the misguided
prosecution of Senator Ted Stevens, which I thought was out of
this world bad. I was one of the people who testified as to his
character, and he was a person of great character.
As you know, he lost the Senate race because of this type
of prosecution. I know that case. Ted Stevens was a dear friend
of mine, and I testified on his behalf, as I said.
Only after he was convicted did we learn that the Justice
Department prosecutors intentionally hid exculpatory evidence
that could have helped his case.
Now, these were not mistakes. They were corrupt acts that
violated every prosecutor's duty under the Brady v. Maryland
decision to turn over exculpatory evidence so that the trial
will be fair.
Now, I recommend that you read this book because, if even
half of it is true--and I believe it is true--you have a lot of
work to do to clean up that Department. Will you consider doing
that for me?
Ms. Lynch. Thank you, Senator. I will.
Senator Hatch. I appreciate it.
Thanks, Mr. Chairman.
Chairman Grassley. Before I call on Senator Feinstein, I am
going to ask, just as soon as the Finance Committee convenes, I
am going to offer an amendment, so I would ask the most senior
Republican to watch the time and call on the next person in
seniority order.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Ms. Lynch, I sat through six opening statements by
potential Attorneys General, and I just want to tell you yours
was the best.
Ms. Lynch. Thank you.
Senator Feinstein. I see the combination of steel and
velvet. I see your effectiveness before a jury. I see your love
for the Constitution. And I see the determination which is in
your heart and, I think, your being, and it is very, very
impressive. So I want to thank you for really 30 years of
service.
Ms. Lynch. Thank you, Senator.
Senator Feinstein. And I hope it will be a lot longer.
Mr. Chairman, I would like to place in the record Los
Angeles Police Department Chief Charlie Beck's written
testimony on the subject of the President's Executive action on
immigration.
Chairman Grassley. Without objection, so ordered.
Senator Feinstein. Thank you very much.
[The information appears as a submission for the record.]
Senator Feinstein. Ms. Lynch, I am going to ask you three
questions. The first is on expiring provisions of the Foreign
Intelligence Surveillance Act, which will come to this
Committee before June of this year and also before the
Intelligence Committee, on which I serve; a question about
Office of Legal Counsel opinions; and a question on the State
Secrets Act.
Let me begin with FISA. The three provisions that are going
to expire on June 1 are, first, the roving wiretap authority.
This provision enables the Government to maintain surveillance
on a target when he or she switches phone numbers or email
addresses without seeking a new court order.
The second is the lone wolf authority, which enables the
Government to conduct surveillance of a non-United States
person engaged in international terrorism without demonstrating
that they are affiliated with a particular international
terrorist group such as ISIS or Al-Qaeda.
And the third is the business records authority, which
carries with it Section 215 of the National Security
Administration. This enables the Government to obtain a court
order directing the production of ``any tangible thing'' that
is relevant to an authorized national security investigation.
Can you describe for us the importance of these three
provisions and what would be the operational impact if the
three were allowed to sunset in June?
Ms. Lynch. Thank you, Senator. You certainly raise an
important issue about the need to have a full panoply of
investigative tools and techniques to deal with the ever-
evolving threat that terrorism presents against us.
With respect to the provisions that you refer to, I think I
have always found it most interesting that the roving wiretap
provision is actually a provision that was incorporated into
the FISA statute after being utilized extensively for several
years in narcotics prosecutions. It was one with which I was
familiar as a young prosecutor, as many of my colleagues across
the country were as well. And the ability to describe to a
court the nature of the offense, the nature of the activity,
and the use of attempts to shield oneself from electronic
surveillance, which is part of what must be set forth in the
application, have been invaluable tools.
Of particular importance is the fact that all of this must
go to a court. Obviously, in the narcotics area, it was an
Article III Court; in the FISA area, it is to the FISA Court.
But there is judicial review for this, and it has been an
important part of the techniques we have used in the war on
terror, as have the other two provisions that you mention.
I do think, however, that with respect to FISA, there is
always the ability, there is always the need to make sure that
we are current not just with technology, but with the most
effective way to protect privacy as we go forward in this
important act. I know that is something that you have spent a
great deal of time on, as well as many of your colleagues on
this Committee as well as on the Intelligence Committee. And I
look forward to continuing those discussions with you, should I
be confirmed.
With respect to the lone wolf provision, again, I think we
have to obviously examine it carefully. Recent events, however,
have underscored the importance of this as an issue in the war
on terror, and so I would hope that we could move forward with
any proposed changes to FISA with a full and complete
understanding of the risks that we are still facing, and if any
changes need to be made, again, after full and fair
consideration with this Committee, with the Intelligence
Committee, and the discussions that we need to have, making
sure that we can still provide law enforcement with the tools
that they need.
Similarly with Section 215, I believe that the court order
provision in there is an effective check and certainly a
necessary check as we gather data from all types of sources. As
I have always said, I am certainly open to discussions about
how they can be best modified, if we need to modify them,
consistent with the goals of protecting the American people.
And I commit to you, Senator, and indeed to all of this
Committee, that I will always listen to all those concerns, be
it about the FISA statute or any of the techniques we are using
in the war on terror.
Senator Feinstein. Thank you very much.
As a Member of both Judiciary and Intelligence, we have on
both Committees sought access to Office of Legal Counsel
opinions, called ``OLC opinions,'' and these opinions often
represent the best and most comprehensive expression of the
legal basis for intelligence activities Congress is actually
charged with overseeing. So without these opinions, you do not
really know the legal basis upon which an administration has
based certain activities, and it has been very frustrating to
us.
In particular, executive branch officials have previously
advised the Committee of the existence of a seminal OLC opinion
written by Ted Olson decades ago governing the conduct of
collection activities under Executive Order 12333.
My question is: Can we have your commitment that you will
make a copy of this OLC opinion available to Members of both
the Intelligence and the Judiciary Committees? Probably your
first tough question.
[Laughter.]
Ms. Lynch. Well, Senator, I think that with respect to the
OLC opinions, you are correct; they do represent a discussion
and an analysis of legal issues on a wide variety of subjects
when a variety of agencies come to the Department for that
independent advice that we must provide them. Certainly I am
not aware of the discussions that have been had about this
previous opinion in terms of providing it. Certainly I will
commit to you to work with this Committee as well as the
Intelligence Committee to find a way to provide the information
that you need consistent with the Department's own law
enforcement and investigative priorities.
Senator Feinstein. Thank you very much. This particular
opinion is important, and it would be useful if we can review
it, so thank you.
On state secrets, on September 23, 2009, the Attorney
General issued a memorandum establishing new procedures and
standards to govern DOJ's defense of an assertion of the state
secrets privilege in litigation. Among other things, the
memorandum stated that the DOJ would provide the periodic
reports to Congress on the exercise of the state secrets
privilege.
Since 2009, only one such report, from April 2011, has been
provided. That report discussed the two cases in which the
privilege had been invoked under the new policy, but those are
no longer the only two cases.
So I would like to ask you if you could provide the
appropriate Oversight Committees with the second periodic
report on the exercise of state secret privileges that
discusses those cases which the privilege has been invoked on
since April of 2011?
Ms. Lynch. Senator, you raise the important issue of the
need to work with the Oversight Committees, be they this
Committee or Intelligence, in reviewing the actions of the
Department of Justice, not just so the Committees can carry out
their work, but so that the American people can be aware of how
the Department carries out its work.
I am not familiar with the reports that you referred to at
this point. I certainly look forward to reviewing this issue,
and I certainly commit to you that I will do my best to ensure
that the Department lives up to its obligations that it has set
forth.
Senator Feinstein. Good. And I will come back. This is an
important question to us, so I will come back and hopefully can
get an answer, ``yes'' or ``no,'' within the next couple of
weeks. So thank you very much.
Ms. Lynch. Senator, I look forward to learning more about
the issue, and I look forward to sharing that with you, should
I be confirmed, as well as any issues of concern that this
Committee or others have.
Senator Feinstein. Thank you very much.
Thank you, Mr. Chairman.
Chairman Grassley. Thank you, Senator Feinstein.
Now, it is Senator Sessions' turn.
Senator Sessions. Thank you, Mr. Chairman.
It is great to have you here. I appreciated the opportunity
to have a good discussion, I think, in our office, and having
had--I think I just passed my time in the Senate longer than I
spent in the Department of Justice. It was a great honor to
serve that, and I have high ideals for this Department. And we
understand that the Attorney General is the premier law
enforcement officer, the senior law enforcement officer in
America. He or she sets the tone for law in America, the
commitment to law, and must resist politicizing law and do the
right thing on a daily basis.
On occasion, you are called upon to issue opinions.
OLC works for you, the Office of Legal Counsel who issues
these opinions. And you will have to tell the President ``yes''
or ``no'' on something that he may want to do.
Are you able and willing to tell the President of the
United States ``no'' if he asks permission or a legal opinion
that supports an action you believe is wrong?
Ms. Lynch. Senator, I believe you have touched upon one of
the most important responsibilities of the Attorney General,
and let me say also that I appreciated very much the
opportunity to meet with you and discuss these important
issues.
The Attorney General's position as a Cabinet member is
perhaps unique from all other Cabinet members. Yes, a member of
the President's Cabinet, but the Attorney General has a unique
responsibility to provide independent and objective advice to
the President or any agency when it is sought, and sometimes
perhaps even when it is not sought.
With respect to the Office of Legal Counsel----
Senator Sessions. And so you understand that your role is
such that on occasion you have to say ``no'' to the person who
actually appointed you to the job and who you support?
Ms. Lynch. Senator, I do understand that that is, in fact,
the role and the responsibility of the Attorney General and, in
fact, a necessary obligation on their part.
Senator Sessions. Well, you know, people have agendas, and
Attorneys General sometimes do, and they have to guard against
that and be objective, as you basically said to me, now in
Committee.
On April 24th of 2013, Attorney General Holder said this--
and I am raising this fundamentally because I think there is a
lot of confusion about how we should think about immigration in
America, what our duties and what our responsibilities are. He
said this: ``Creating a pathway to earned citizenship for the
11 million unauthorized immigrants in our country is essential.
The way we treat our friends and neighbors who are
undocumented--by creating a mechanism for them to earn
citizenship and move out of the shadows--transcends the issue
of immigration status. This is a matter of civil and human
rights.''
So let me ask you, do you believe that a person who enters
the country unlawfully, that has perhaps used false documents
or otherwise entered here, has a civil right to citizenship?
Ms. Lynch. Well, Senator, I am not familiar with the
context of those comments. I certainly think that you do touch
upon the difficult issue of how do we handle the undocumented
immigrants who come to our country, I believe, for the life
that we offer, I believe, because of the values that we
espouse.
Senator Sessions. Well, I do not want to interrupt you, but
just the question is: Do you agree with that statement that it
is a matter of civil rights and citizenship and work authority,
a right to work in America, for someone who enters the country
unlawfully, that is a civil right?
Ms. Lynch. Senator, I have not studied the issue enough to
come to a legal conclusion on that. I certainly think that
people who come to this country in a variety of ways can
rehabilitate themselves and apply, but that would have to be
something that would be decided on a case-by-case basis.
Senator Sessions. Well, I would just like to hear you
answer that. Is it a civil right for a person who enters the
country unlawfully, who would like to work and like to be a
citizen, to demand that contrary to the laws of the United
States, and when Congress does not pass it, is that a right
that they are entitled to demand?
Ms. Lynch. Sir, I do not think that--I think that
citizenship is a privilege. Certainly it is a right for those
of us born here. I think it is a privilege that has to be
earned. And within the panoply of civil rights that are
recognized by our jurisprudence now, I do not see one such as
that you are describing.
Senator Sessions. I certainly agree. I am a little
surprised it took you that long, but the Attorney General's
statement was breathtaking to me.
Now, Peter Kirsanow, who is a member of the U.S. Commission
on Civil Rights, responded to that some time ago, and here is
what he said: ``To equate amnesty for breaking the Nation's
immigration laws with civil rights betrays an incoherent and
ahistorical understanding of the civil rights movement. Law-
abiding Black citizens of the United States were not seeking
exemption; they were seeking application of such laws in the
same manner that was applied to Whites.''
Would you agree with Mr. Kirsanow's analysis?
Ms. Lynch. Well, certainly I think with respect to the
civil rights movement and the role of African Americans in it,
it certainly was a movement designed to assure equal access to
law and equal application of law.
Senator Sessions. Well, on the 50th anniversary of the
Selma march that is approaching--people were denied
systematically fundamental rights as citizens of the United
States of America. And that was a historic event. It changed
America, and I think it is important that that be remembered.
But I will just tell you, it is quite different, as I think Mr.
Kirsanow points out, to demand your lawful rights as an
American and to ask for--insist that civil rights apply to
those who enter the country unlawfully to have these benefits.
Well, the President's action would give people who came
here unlawfully the right to work, the right to participate in
Social Security and Medicare, when Congress has not done that;
allows them to stay, for at least a period, lawfully.
Let me ask you this: In the workplace of America today--
when we have a high number of unemployed, we have had declining
wages for many years, we have the lowest percentage of
Americans working--who has more right to a job in this country:
a lawful immigrant who is here, a green-card holder, or a
citizen, or a person who entered the country unlawfully?
Ms. Lynch. Well, Senator, I believe that the right and the
obligation to work is one that is shared by everyone in this
country, regardless of how they came here. And certainly if
someone is here, regardless of status, I would prefer that they
be participating in the workplace than not participating in the
workplace.
With respect to----
Senator Sessions. Well, that was--so you think that a
person that is--anybody that is here, lawfully or unlawfully,
is entitled to work in America?
Ms. Lynch. Well, Senator, I am not sure if I know--if I
understand the basis for your question as to whether or not
there is a legal basis for them to work or not.
Senator Sessions. I asked you who had--we were talking
about rights. Who has the most rights? Does a lawful American
immigrant or citizen have the right to have the laws of the
United States enforced so that they might be able to work? Or
does a person who came here unlawfully have a right to demand a
job?
Ms. Lynch. Certainly the benefits of citizenship confer
greater rights on those of us who are citizens than those who
are not.
Senator Sessions. Well, do you think a person that is here
unlawfully is entitled to work in the United States when the
law says that employers cannot hire somebody unlawfully in
America----
Ms. Lynch. I believe that--go ahead.
Senator Sessions. Go ahead.
Ms. Lynch. Sorry, sir. I think that certainly the provision
that you refer to regarding the role of the employer in
ensuring the legal status of those who are here is an important
one and that we have to look at it in conjunction with this
issue in terms of preventing undocumented workers who, as you
have indicated before, are seeking employment. Again, we want
everyone to seek employment, but we have in place at this point
in time a legal framework that requests or requires employers
to both provide information about citizenship as well as not
hire individuals without citizenship.
Senator Sessions. Do you think that someone given--I
understand that you support the Executive order and OLC's
opinion; is that correct?
Ms. Lynch. I do not believe my role at this point is to
support or not support it. My review of it was to see whether
or not it did outline a legal framework for some of the actions
that were requested. And as noted, it indicated that there was
not a legal framework for other actions that were requested.
Senator Sessions. Well, let me wrap up by asking this: If a
person comes here and is given a lawful right under the
President's Executive amnesty, they have a Social Security and
a work authorization card, what if somebody prefers to hire an
American citizen first, would you take action against them? Do
you understand this to mean that those who are given Executive
amnesty are entitled as much as anybody else in America to
compete for a job in America?
Ms. Lynch. Well, I do not believe that it would give anyone
any greater access to the workforce and certainly an employer
would be looking at the issues of citizenship in making those
determinations.
Senator Sessions. Would you take action against an employer
who says no, I prefer to hire somebody that came to the country
lawfully, rather than someone given Executive amnesty by the
President? Would Department of Justice take action against
them?
Chairman Grassley. When you answer that I will move on
then.
Ms. Lynch. Thank you, sir.
With respect to the provision about temporary deferral, I
did not read it as providing a legal amnesty. That is not
permanent status there, but a temporary deferral. With respect
to whether or not those individuals would be able to seek
redress for employment discrimination if that is the purpose of
your question, again, I have not studied that legal issue. I
certainly think you raise an important point and would look
forward to discussing it with you and using and relying upon
your thoughts and experience as we consider that point.
Chairman Grassley. Thank you, Senator Sessions.
Now Senator Schumer.
Senator Schumer. Well, thank you and you know, I think that
even in the short while here, it is clear to my colleagues why
you are such a tremendous--why you have been such a tremendous
U.S. Attorney in my home State of New York and home borough of
Brooklyn, and why you would make such a great Attorney General.
You are just knocking them out of the park.
And speaking of sports analogies, there is another point I
would like my colleagues to know, another testament to your
perseverance, to your loyalty in the face of incredible
adversity. With all due respect to Mr. Tillis, you are not a
Tar Heel or a Blue Devil, you are a Knicks fan. And that
takes--it is a lot tougher being a Knicks fan than going
through these questions here today.
But, anyway, I would like to just go over a couple of
points some of my colleagues made. First on prosecutorial
discretion, there is a myth out there that prosecutorial
discretion policies are tantamount to an illegal failure to
enforce the law. And we know that you have enforced the law
aggressively and will continue to do so, as has the
administration.
Some of my friends across the aisle seem to be suggesting
that the President's announcement of the enforcement policies
for the Department of Homeland Security is tantamount to an
announcement that we will not enforce our immigration laws, but
that is absurd.
We know we have 11 million undocumented immigrants living
in the United States. Congress, this body, only allocates
enough money for DHS to deport 400,000 of them; 11 million
illegal immigrants, enough money to deport 400,000. Obviously
you have to make some choices here. And I am sure when my dear
friend Jeff Sessions, and he is a dear friend, was U.S.
Attorney in Alabama, he used prosecutorial discretion. I know
he did a good job going after violent drug dealers and
criminals.
We want our prosecutors to go after the highest level
crimes if they do not have the resources to do all of them.
Doesn't it make sense to have a general rule to prosecute in a
prosecutorial office with limited resources to go after bank
robbers before you go after shoplifters?
Now, obviously there can be an occasional exception. As you
mentioned, the President's Executive order allows for that
occasional exception. But this idea that going after--having an
office go after the higher-level, more dangerous crimes first
is part of how law enforcement has gone on for hundreds of
years, and it should. So I do not even get this idea that this
is an illegal act by the President.
We arm our law enforcement officials with an array of laws,
but limited resources. They have to make hard choices. And a
straightforward allocation of resources is not political
activism, it is what prosecutors are doing in every
jurisdiction of this land right now.
Immigration is like any other issue. We have limited
resources. It makes eminent sense to go after the hardened
criminals before going after lower-level offenders. So just let
me ask you a couple of questions here.
Don't U.S. Attorney's Offices all over the country
consistently have to make these general type of prosecutorial
decisions on a day-to-day basis? And how do you?
Ms. Lynch. Yes, Senator. With respect to the exercise of
discretion and the setting of priorities, one of the privileges
that I have had of being the U.S. Attorney in the Eastern
District of New York and working with my colleagues across the
country has been getting to know them and learning about how
different every district is. How a crime problem in Brooklyn
may not even appear on the West Coast. And how a crime problem
in the Midwest that has seen an increase in crime due to the
happy accident of increased oil reserves may present issues
that I would never face in an urban environment.
My colleagues and I work together and we share our thoughts
on the best ways to deploy our limited resources to deal with
the crime problems in our districts. My colleagues that have a
large number of Native American reservations in their
districts, for example, have a very different base of problems
than I do. But they are just as committed and just as focused
on keeping those citizens safe as well.
So all of us look at the crime problems in our districts.
To do that, we work very closely with our law enforcement
partners in looking at how they have determined the nature of
the threat, be it terrorism, be it narcotics, be it those who
would target children.
We also work closely with our State and local counterparts,
not just the law enforcement counterparts, but our prosecutive
counterparts in the District Attorney's Offices.
Many times I will have a matter in my office that is
subject to both Federal and State jurisdiction and it may be
more appropriate for the District Attorney to prosecute that
type of crime because of the nature of the sentence that can be
achieved, because of the impact on a particular victim or
community, or because of the legal issue involving proof and
the admissibility thereof. All of these things go into the
consideration of how we manage individual cases but also how we
set priorities and then deploy our limited resources to best
protect the people of our district.
Senator Schumer. Exactly. Every prosecutor, whether it is
the Justice Department, the U.S. Attorney's Office, sets
priorities and has to, and that is just what the President did
in my opinion in the Executive order.
The next one, we are hearing a lot about Executive action
being unconstitutional. And so I would like to just talk about
that. That is another myth that is out there. No Federal court
has struck down Executive action. The most recent Federal court
to hand down a decision supported it. I have heard it suggested
Federal courts have declared Executive action unconstitutional.
It so happens, in fact, dating back to Chief Justice Rehnquist,
the Supreme Court has repeatedly bolstered Executive discretion
and refused to review agency decisions that are within the law.
With respect to this Executive action there have been two
Federal cases filed--one here in Washington by Sheriff Arpaio,
notoriously anti-immigration activist, that has been dismissed.
The second suit was filed in Texas and is still pending. So no
courts have struck down Executive action.
Now we are hearing that Speaker Boehner and House
Republicans will be suing the President on this Executive
action. I do not think that is a responsible use of taxpayer
dollars, but at least Speaker Boehner and I agree on one thing:
if Republicans disagree with President Obama over the legality
of this policy, they can sue him and let the courts decide. The
confirmation of America's highest law enforcement officer is
not the time or place to vent frustration.
So let me just ask you a couple of questions. You have
answered them, but I want to underscore them. Because some
people are concerned that the, ``rogue Obama administration''
is lawless. Will you commit to following court decisions and
legal process?
Ms. Lynch. Absolutely, Senator, that is my first point of
reference.
Senator Schumer. And specifically if a court happens to
strike down Executive action, will you respect that court
decision?
Ms. Lynch. I will respect that court decision.
Senator Schumer. And let us imagine Congress--I do not
think this will happen--I would try to prevent it as best I
could, but let us say Congress were to pass a bill explicitly
prohibiting President Obama's immigration actions, a bill I
find hard to imagine the President would sign, but let us just
imagine for the sake of argument happened.
If such a bill passed, will you commit to following the new
law?
Ms. Lynch. I will commit to following all the laws duly
executed by this body.
Senator Schumer. Thank you. Okay. Just one other issue
since I have a little more time. Work permits, which my good
friend, again, Jeff, brought--Senator Sessions brought up. Some
have suggested it is illegal for the administration to issue
work permits for recipients of deferred action. Again, they
imply this is unprecedented. That is misleading. Guess who did
it in 1982? Ronald Reagan. They published INS regulations
authorizing work permits for recipients of deferred action--
1982, the Reagan administration. That is not to say workplace
enforcement is not necessary. It is. And in fact, isn't it
true, Ms. Lynch, that you have a strong record of enforcing
workplace immigration rules?
Just tell us a little about the 7-Eleven stores case that
you brought on Long Island?
Ms. Lynch. Thank you, Senator. The case against the 7-
Eleven stores and various franchises was a very important one
to my office because it was one in which we saw a corporate
entity deliberately flouting the labor laws. Individuals mostly
of a particular ethnic group who owned franchises of 7-Eleven
were reaching out to their own community members and hiring
them to work in the stores. This would have been an opportunity
for individuals to earn money for their families and to
essentially become part of the American Dream.
Instead, however, the workers were systematically
victimized. They were forced to work double shifts, triple
shifts, yet only paid for working part-time hours. They were
only given their money in either a 7-Eleven debit card, or cash
as deemed appropriate by the manager.
Even worse than this was the evidence that we uncovered
that the stores were aware that they were violating the labor
laws and simply flouting them.
They also requested--they also required the workers to all
live together in company-sanctioned housing. We essentially
were creating a modern-day plantation system on Long Island and
also throughout the Virginia area with co-conspirators of these
franchise owners.
We spent a long time working on the investigation in
conjunction with our law enforcement partners. The matter is
still being reviewed with respect to other States. And wherever
we find workers being victimized and being discriminated
against, certainly my office has never hesitated to take
action.
Senator Schumer. Thank you, my time has expired, Mr.
Chairman.
Senator Sessions [presiding]. Thank you. I would offer for
the record a consent that the article from the Atlantic
saying--headline by David Frum, ``Reagan and Bush Offer No
Precedent for Obama's Amnesty Order.'' And I think that is
crystal clear.
[The article appears as a submission for the record.]
Senator Sessions. Senator Cornyn, ``Justice'' Cornyn is
next.
Senator Cornyn. Good morning, Ms. Lynch.
Ms. Lynch. Good morning.
Senator Cornyn. Congratulations, again, to you on your
nomination and thank you for coming to my office last--I guess
it was last Friday----
Ms. Lynch. Yes.
Senator Cornyn [continuing]. To visit about this hearing.
And I should say congratulations to you for an outstanding
career as a United States Attorney. The challenge, I think,
that people have when they come to Washington, DC, and they
assume jobs that have political implications is that they sort
of forget their basic mooring in the law and they become
politicians, masquerading as law enforcement officers, and that
is a real challenge. And I will not claim that it is only a
challenge for Democrats, it has been a challenge for
Republicans as well.
But I am concerned--well, let me for Senator Schumer's
benefit, let me just stipulate, you are not Eric Holder, are
you?
Ms. Lynch. No, I am not, sir.
Senator Cornyn. So no one is suggesting that you are, but,
of course, Attorney General Holder's record is heavy on our
minds now and I agree with the Chairman about his concerns when
the Attorney General refers to himself as the President's
wingman, suggesting that he is not--does not exercise
independent legal judgment as the chief law enforcement officer
for the country.
You wouldn't consider yourself to be a political arm of the
White House as Attorney General, would you?
Ms. Lynch. No, Senator, that would be a totally
inappropriate view of the position of Attorney General.
Senator Cornyn. And you would be willing to tell your
friends ``no'' if in your judgment the law required that?
Ms. Lynch. Sir, I think that I have to be willing to tell
not just my friends and acquaintances, but colleagues, ``no''
if the law requires it.
Senator Cornyn. And that would include the President of the
United States?
Ms. Lynch. I think that the obligation of the Attorney
General is to, when presented with matters by the President to
provide a full, thorough, independent, substantive legal
analysis and give the President the best independent judgment
that there is. And that may be a judgment that says that there
is a legal framework for certain actions and it may be a
judgment that says that there is not a legal framework for
certain actions.
Senator Cornyn. And while we have stipulated you are not
Eric Holder, Mr. Holder's record is certainly on our minds,
because I cannot think of an Attorney General who so
misevaluated the independent role of the chief law enforcement
officer and taken on that aspect of the President's wingman and
operated as a politician using the awesome power conferred by
our laws on the Attorney General.
The Attorney General has been openly contemptuous of the
oversight responsibilities of a co-equal branch of Government.
He's stonewalled legitimate investigations by the Congress
including the investigation into the Fast and Furious episode
that Senator Grassley referred to earlier, making bogus claims
of executive privilege in order to keep Congress and the
American people from finding out the facts.
We know that the Attorney General has repeatedly made legal
arguments that have been rejected as unconstitutional by the
United States Supreme Court, and he's harassed States like
mine, and I suspect you will hear from another colleague about
his State on matters like voter ID when the United States
Supreme Court has upheld the validity of voter ID as a means to
protect the integrity of the ballot for people who are
qualified to vote. And at the same time, the Attorney General
has failed to implement laws that Congress has passed in order
to provide--to protect the voting rights of our military
deployed overseas.
He's also politicized the war on terror. He's declassified
top secret legal memos exposing public officials in the
intelligence community to not only ridicule, but threats, legal
and otherwise, for performing actions that they were told by
the highest legal authorities were legal and were necessary to
save American lives. And, indeed, he reopened a criminal
investigation into those same members of the intelligence
community after a previous investigation had not revealed any
basis for criminal charges.
So how do we know you are not going to perform your duties
of office as Attorney General the way Eric Holder has performed
his duties? How are you going to be different?
Ms. Lynch. Senator, if confirmed as Attorney General, I
will be myself. I will be Loretta Lynch. And I would refer you
to my record as United States Attorney on two occasions, as
well as a practicing lawyer, to see the independence that I
have always brought to every particular matter.
I certainly think that going forward, while I am not
familiar with the particulars of the issues that you raise,
they clearly are of concern to you and perhaps to this
Committee. And I do pledge to this Committee that I want to
hear your concerns. I want to listen to your concerns, and I
will always be open to discussing those issues with you.
Senator, I am sure that as we go forward, should I be
confirmed, while it would be wonderful to think that you would
agree with everything that I would do, that may not be the
case.
Senator Cornyn. You may not agree with everything we do.
Ms. Lynch. And that is perfectly appropriate. But, Senator,
I will always be open to discussing with you why I have done
something and the basis for which I have made an action, to the
extent that I am able to do so. I have found that to be the
most effective way of not just for me in terms of learning from
people with whom I disagree, but also working effectively with
people with whom I may disagree on various points, but with
whom, like you, we share a common goal.
Senator Cornyn. Ms. Lynch, I have been married 35 years and
I can guarantee you that 100 percent agreement is an impossible
standard for anybody to comply with. So we do not expect that,
obviously.
But I want to ask you about your commitment to working with
the Committee and Congress and respecting our congressional
oversight authority. A recent letter sent to Senator Leahy on
behalf of Attorney General Holder was dated December the 5th,
2014, and it responds to questions for the record that arose in
an appearance before this Committee on March the 6th, 2013. So
obviously about, this looks roughly a year and a half, more
than a year and a half later. Can we expect a more timely
response from you and the Department of Justice to the
legitimate inquiries of this Committee?
Ms. Lynch. Certainly, Senator. I believe that the oversight
responsibility of this Committee is important, not just for the
functioning of the Committee, but also to the American people
in terms of helping them understand the way in which the
Department operates and the way in which we all work to keep
them safe.
I commit to you absolutely that I will work with this
Committee to ensure that we provide as timely a response as
possible. I am not sure of the particulars of the matter that
you raise, so I am not able to comment on that. But certainly I
would hope to be able to provide you with the information that
you need in as timely a manner as consistent with the
Department's litigation and enforcement responsibilities.
Senator Cornyn. I think it would make it possible for you
to be a more effective Attorney General and it would make it
possible for us to be more effective in our respective roles as
Members of Congress exercising our responsibilities as well.
I want to just ask you a little bit about prosecutorial
discretion which you have heard something about here. My only
regret from this morning's hearing is that the--and Senator
Schumer, the senior Senator from New York who introduced you,
was not available for cross-examination by Members of the
Committee. But we will have a chance to talk later. But he
seemed somewhat dismissive of concerns about this massive--what
I would consider, in essence, refusal to enforce existing law
that is involved in these Executive actions.
There is a difference to your mind, isn't there, between a
case-by-case exercise of prosecutorial discretion and a refusal
to enforce the laws that are on the books? There is a
difference, isn't there?
Ms. Lynch. Senator, there is a difference. And I do not
view the Department of Justice, certainly in my own practice,
as refusing to enforce law, but rather attempting to set
priorities and then exercising discretion within those
priorities.
Senator Cornyn. Well, let me ask you about that. Isn't it
incumbent upon the Department of Justice to ask Congress for
the resources to do the job that Congress has said the
Department must perform before you can come back and say, well,
we are just not going to pursue those crimes and those offenses
because we do not have enough money. I mean, isn't it your
responsibility--will it be your responsibility as the next
Attorney General to come to us and ask us for those resources?
I cannot imagine if Attorney General Holder or the
President of the United States or Secretary Johnson, or others,
had come to us and said, we do not have the resources to
enforce the immigration laws, so we are going to have to, in
essence, decline to enforce them because we do not have those.
I mean, don't you have that responsibility to ask for those
resources before you decline to enforce the law based on lack
of resources?
Ms. Lynch. Certainly, Senator, I am not aware of the
Department of Homeland Security's budget requests before this
body or Congress in general. With respect to the Department of
Justice, I had been involved in reviewing the budget as part of
my work on the Attorney General's Advisory Committee, and
certainly during sequestration spent a great deal of time
looking at the budget to ensure that we did maintain the
appropriate resources to carry out our core mission of
protecting the American people within the constraints that were
placed upon us at that time. And it is my understanding that,
with respect to budget requests that the Department of Justice
makes, that those requests do include information about goals
and priorities across the board as a way of explaining to
Congress why specific resources are needed.
Senator Cornyn. So you do need more money?
Ms. Lynch. I would probably join all of my agencies in
saying that, sir, but I cannot speak for them. Senator Cornyn.
That is what I thought. Thank you.
Chairman Grassley. Thank you, Senator.
Now Senator Durbin and the next Republican will be Senator
Lindsey Graham.
Senator Durbin. Ms. Lynch, thank you for being here. I will
be objective, although I am deferential to women named Loretta.
I have been married to one for 47 years. And I am glad that you
are here today.
When your father lifted you up on his shoulders, at that
Greensboro church, you were a young girl at the time, but a
witness to a moment in history that changed America forever and
literally changed your life. There was no way you could know
that.
One of the central issues that was raised during the civil
rights movement was the right to vote. A right of which Chief
Justice Roberts said, sitting in that very same place, and
quoting a Court decision, ``it's preservative of all rights.''
We are now in a unique position, some 50 years later, about to
celebrate the 50th anniversary of the Voting Rights Act. The
Supreme Court in Shelby County v. Holder struck down major
provisions of the Voting Rights Act, and Congress, which
historically had renewed the Voting Rights Act on a bipartisan
basis, is now, with few rare exceptions, split along partisan
lines as to whether or not there will be a renewal of some
sections.
We are finding States across the Nation, many States, that
are changing the requirements for voting. I chaired the
Constitution Subcommittee of Judiciary. I took the Subcommittee
to public hearings in Ohio and Florida where there were new
restrictions placed on voting by State legislatures. I called
the election officials of both political parties in those
States and asked them if there was any evidence of voter fraud
or voter abuse that led to these legislative changes and to a
person they said virtually none.
What has happened is that the Department of Justice has
stepped in--in some cases that they considered to be extreme
and unfair--and worked to stop the implementation of the State
laws that restricted the right to vote.
As you embark on the possibility of making that decision as
Attorney General, how do you view the State voting rights in
America today and what do you view is your responsibility
should you be our next Attorney General?
Ms. Lynch. Thank you, Senator. Certainly I believe that the
right to vote is the cornerstone of a free democracy and one
that every citizen has the right and, in fact some would argue,
the obligation to exercise.
With respect to how voting rights are being handled in the
country now, I think we are in a time of great debate over
these issues. Those are important issues and I am certainly
open to hearing all sides of it.
With respect to how--and I also think that every State does
have the responsibility and obligation to regulate the voter
rolls and to ensure that the vote is carried out freely and
openly and fairly.
And I do believe that that is the goal of many of our
elected officials, if not most of our elected officials, who
deal with these issues every day.
The concerns that are raised, Senator, are when acts that
are taken with a goal towards protecting and preserving the
integrity of the vote act in a different way and act to
suppress the vote or in some way prevent people from exercising
the franchise.
I would hope that at the first outset, through the
political discourse and discussion, that we could have a
conversation about that and come to a resolution of practices
and procedures that would ensure the right to vote for all
citizens while still protecting the integrity of everyone's
ballot.
Absent that, I believe that when laws are passed, the
Department of Justice has to look very carefully at their
impact in making a decision as to how to proceed. Certainly
there have been instances when voter ID laws have received
approval from the Department under what was previously known as
preclearance because they sought to simply regulate and protect
the ballot as opposed to act in a different way.
But where there is an indication that the vote will somehow
be harmed, I believe the Department of Justice certainly has
the obligation to review that matter, to look carefully at all
of the facts in evidence, and then proceed accordingly.
Senator Durbin. I could not agree with you more, and I find
it ironic and painful that at this moment in our history, as we
celebrate with the movie ``Selma'' and talk about the 50-year
anniversary of the Voting Rights Act, that States, many States,
on a systematic basis are making it more difficult for
Americans to vote, without any evidence of voter fraud to back
up those changes. In one Southern State, it is estimated that
some 600,000 voters were basically precluded from voting in an
election because of new voter ID requirements. In that same
State, a 93-year-old veteran was turned away, a 70-year-old
doctor turned away, people who were proud to vote, wanted to
vote, turned away by new laws. These were people who had a
right to vote, and it troubles me that, amidst all the
celebration of the civil rights movement, we are finding a
reversal of the most fundamental principle in preserving that
right to vote.
I appreciate what you had to say about it.
I would say a word about the Smarter Sentencing Act, which
I introduced with Senator Lee from Utah, who may be still here
today, a bipartisan measure with 32 cosponsors, in an effort to
take a look at the reality that not only does the United States
have more prisoners per capita than any other nation, but in
many instances, lengthy prison sentences do not serve the cause
of justice and deny us resources we need to keep our
communities safe.
Attorney General Holder, who is not held in the highest
regard by some Members of this Committee, has been an outspoken
supporter of this bipartisan measure, and I hope that you would
consider supporting it, too, although I will not put you on the
spot to do that without giving you a chance to look at it.
Let me add one other element. As Chairman of the
Constitution and Human Rights and Civil Rights Committee, which
was its name before this new Congress, we also had a hearing on
solitary confinement. It turns out the United States in its
prison system has more prisoners in solitary confinement than
any other nation. And we had testimony from those who had spent
10 years on death row in solitary confinement in Texas, an even
longer period of time in solitary confinement on death row in
the State of Louisiana and ultimately exonerated. They were not
found to be guilty.
The devastating impact that has on the human mind and
spirit for so many of these people who serve time in solitary
confinement, many of whom are going to be ultimately released,
is something the Federal Bureau of Prisons is now addressing.
You have been a prosecutor for many years. What is your
view when it comes to incarceration and segregation or solitary
confinement?
Ms. Lynch. Senator, you raise important issues about the
management of our prison system, which are charged with being
the ultimate repository for those that we have concluded are
seeking to harm Americans, but are also charged with doing so
in a manner that is constitutional, that is effective, and that
protects the safety of both the inmates and those who are
guarding them.
So these are balances that we have to strike, and I take
the view that certainly as we look at these issues, one of the
benefits, I believe, of discourse like this, and that I hope to
have going forward with this Committee, is continued discussion
on those issues.
There are a number of municipalities, for example, that are
looking at this very same issue. New York City is looking at it
with respect to juvenile detention and looking to remove
solitary confinement as an option for juvenile detention as
well based on many of the similar studies that you are talking
about.
I believe we have to look at those studies. We have to
listen to the evidence that comes before us and make the best
determination about how to handle what can be a dangerous
prison population, but how to handle that prison population in
a way that is both constitutional and effective.
Senator Durbin. Thank you very much.
Thank you, Mr. Chairman.
Chairman Grassley. Senator Graham is next.
Senator Graham. Thank you. Thank you very much, Ms. Lynch,
and congratulations on being chosen by the President. This is
truly an honor, I am sure.
Do you support the death penalty?
Ms. Lynch. Senator, I believe that the death penalty is an
effective penalty. In fact, my office most recently was able to
achieve----
Senator Graham. How about ``yes''?
Ms. Lynch. A death verdict there.
Senator Graham. Yes.
Ms. Lynch. So we have sought it, yes.
Senator Graham. Okay. That is good. Well, that is good from
my point of view. I do not know about other people.
Sequestration. Have you had a chance to look at the impact
sequestration will create on your ability to defend this Nation
as Attorney General, all those who work for you?
Ms. Lynch. Senator, with respect to sequestration, I have
had an opportunity to review that matter very closely through
my work on the Attorney General's Advisory Committee and also
as United States Attorney dealing with the budgetary limits
that came down with the implementation of sequestration. As you
are familiar with the history perhaps far more than I, it did
constrain the Federal budget greatly about 18 months ago.
Senator Graham. Is this a fair statement: ``If Congress
continues to implement sequestration, it will devastate the
Department of Justice's ability to effectively defend this
country''?
Ms. Lynch. Senator, I believe that that is not only a fair
statement, but it is one that warrants serious discussion about
how we manage budgets in a responsible manner, which I know is
important to this body, but also giving us the tools that we
need to protect the American people.
Senator Graham. In your time in this business, have you
ever seen more threats to our country than are presented today?
Ms. Lynch. Certainly throughout my career as a prosecutor
and U.S. Attorney, we are seeing an increased number and
probably the highest number of threats that I have seen, not
just from terrorist activity but the increased activity in
terms of cybercrime is one that has not only increased
numerically but qualitatively in the type of threat that we
face.
Senator Graham. So we need to up our game in the
cybersecurity area fairly quickly. Do you agree with that?
Ms. Lynch. We do need to make sure we have the resources we
need to keep up with cybercrimes and also to get ahead of these
criminals in terms of detection, in terms of prevention, even
before we get to the apprehension of these criminals.
Senator Graham. And there is just not criminals. Terrorists
also are in the cyberbusiness. Is that correct?
Ms. Lynch. Senator, you have outlined perhaps the greatest
fear of any prosecutor--it is that the combination of a
cyberattack being carried out on behalf of a terrorist entity
is one that we take great pains to prevent, to detect, and to
disrupt. But it is certainly an emerging threat, and it calls
for resources beyond just mere personnel, but in terms of our
own technology also.
Senator Graham. Does it also cry out for Congress to take a
comprehensive approach to our cyberproblems and pass
legislation that would modernize our ability to deal with this
threat?
Ms. Lynch. Certainly a comprehensive approach is necessary.
In my experience both in the Eastern District of New York and
in talking to my colleagues, all of us are struck by the
prevalence of cyberissues in every type of case that we
prosecute now, much more so than even 5 or 10 years ago. And so
we must have not only a comprehensive approach but one that
allows Government to work with private industry as well to come
up with ways to best protect us against this threat.
Senator Graham. Could you give us an estimate--if not now,
in the future--what it would cost to deport 11 million people?
Ms. Lynch. Certainly, Senator, I can--I would not be able
to give you that estimate now, and I would probably have to
reach out to the Department of Homeland Security who would be
charged with that particular action to see if they could
provide that information to you.
Senator Graham. Okay. Do you have a role in the deportation
of people who are here illegally in the Department of Justice?
Do you have any role at all there?
Ms. Lynch. Well, that role is initially--in terms of
deportation, the role is initially handled by the Department of
Homeland Security. There are the immigration courts through
which individuals can seek either asylum or redress from
deportation orders that are handled by the Department of
Justice. But that would be simply actually further along in the
process.
Senator Graham. But that is part of the process.
Ms. Lynch. Yes, it is.
Senator Graham. If you could maybe give us an estimate of
what it would take to deport 11 million people from your lane,
call the Department of Justice and see what they say, I think
it would be instructive to us to see what the bill actually
would be.
Now, do you think the National NSA Terrorist Surveillance
Program is constitutional as it is today?
Ms. Lynch. I am sorry?
Senator Graham. Do you think the NSA Terrorist Surveillance
Program that we have in effect today is constitutional?
Ms. Lynch. Senator, I believe that it is constitutional and
effective. I know that there are court challenges to it, and
certainly we will abide by those court regulations.
Senator Graham. Right.
Ms. Lynch. But it has been a very effective tool in
managing----
Senator Graham. But you are okay with it being
constitutional from your viewpoint?
Ms. Lynch. Certainly constitutional and effective.
Senator Graham. Thank you.
Marijuana. There are a lot of States legalizing marijuana
for personal consumption. Is it a crime at the Federal level to
possess marijuana?
Ms. Lynch. Marijuana is still a criminal substance under
Federal law, and it is still a crime not only to possess but to
distribute under Federal law.
Senator Graham. Under the doctrine of preemption, would the
Federal law preempt States who are trying to legalize the
substance?
Ms. Lynch. Senator, I think you raise very important
questions about the relation of the Federal criminal system
with the States and their ability to regulate criminal law that
they also have, as there is concurrent jurisdiction, and in
terms of matters in which citizens of various States have
voted.
With respect to the marijuana enforcement laws, it is still
the policy of the administration and certainly would be my
policy, if confirmed as Attorney General, to continue enforcing
the marijuana laws, particularly with respect to the money-
laundering aspect of it, where we see the evidence that
marijuana, as I have noticed in cases in my own district,
brings with it not only organized crime activity but great
levels of violence.
Senator Graham. Do you know Michele Leonhart, the DEA
Administrator? I do not know if I said her name right.
Ms. Lynch. She is the Administrator of the Drug Enforcement
Administration.
Senator Graham. Have you ever had a discussion with her
about her views of legalizing marijuana?
Ms. Lynch. Michele and I have not had that discussion,
although we have spoken on any number of other issues.
Senator Graham. Could you maybe have that discussion and
report back to me as to what the results were?
Ms. Lynch. Certainly, Senator. I look forward to speaking
to not just Ms. Leonhart but with you on this issue.
Senator Graham. On August 29, 2013, I think, Deputy
Attorney General James M. Cole advised all U.S. Attorneys that
enforcing marijuana laws against those that are in compliance
with State marijuana laws would not be a priority of the DOJ.
Did you get that memo?
Ms. Lynch. All U.S. Attorneys received that memo, as did I.
Senator Graham. Do you think that is a good policy?
Ms. Lynch. I believe that the Deputy Attorney General's
policy seeks to try and work with State systems that have
chosen to take admittedly a different approach from the Federal
Government with respect to marijuana and determined the most
effective way to still pursue marijuana cases consistent with
the States and the choices that they have made. The Deputy
Attorney General's policy, as I understood it and as it has
been implemented, still requires Federal prosecutors to seek
prosecution of marijuana cases, particularly where we have
situations where children are at risk, where marijuana is
crossing State lines, particularly where you have marijuana
being trafficked from a State that has chosen a legal framework
into a State that has not chosen a legal framework and the
attendant harms therein, as well as those who are driving under
the influence of this.
A great concern certainly within the Department and those
of us who are looking at these issues is the availability of
the edible products and the risk of those falling into the
hands of children and causing great harm there.
Senator Graham. If a State is intending to try to legalize
personal consumption at a small level of marijuana, what would
your advice be to that State?
Ms. Lynch. Well, certainly I am not sure that if a State
were to reach out to the Department for its views--and I do not
know that that has happened or what advice has been given, but
certainly I believe the Department would have an obligation to
inform them of the current Federal status of narcotics laws and
the Department's position that the Federal narcotics laws will
still be enforced by the Department of Justice.
Senator Graham. In 2006, you signed an amicus brief
supporting Planned Parenthood's opposition to the partial-birth
abortion ban. Is that correct?
Ms. Lynch. Yes, I was one of a number of former Department
of Justice officials, although the amicus brief that we signed
was focused on the issue of the facial issues of the law and
how it might impact the perception of law enforcement's
discretion and independence.
Senator Graham. Okay. The only reason I mention that is
that if there is a Republican President in the future and an
Attorney General nominee takes an opposite view on an issue
like abortion, I hope our friends on the other side will
acknowledge it is okay to be an advocate for a cause as their
lawyer. That does not disqualify you from serving.
Same-sex marriage. The courts are wrestling with this issue
right now.
Ms. Lynch. I am sorry?
Senator Graham. Same-sex marriage, this may go to the
Supreme Court very soon. If the Supreme Court rules that same-
sex marriage bans are unconstitutional, it violates the U.S.
Constitution for a State to try to limit marriage between a man
and a woman, that is clearly the law of the land unless there
is a constitutional amendment to change it. What legal
rationale would be in play that would prohibit polygamy? What
is the legal difference between a State--a ban on same-sex
marriage being unconstitutional but a ban on polygamy being
constitutional? Could you try to articulate how one could be
banned under the Constitution and the other not?
Ms. Lynch. Well, Senator, I have not been involved in the
argument or analysis of the cases that have gone before the
Supreme Court, and I am not comfortable undertaking legal
analysis without having had the ability to undertake a review
of the relevant facts and the precedent there. So I certainly
would not be able to provide you with that analysis at this
point in time, but I look forward to continuing the discussions
with you.
Chairman Grassley. Before the Senator from Rhode Island
asks his questions, this would be my plan, and you tell me if
this will give you enough time. The Rhode Island Senator,
Senator Lee, and then Senator Klobuchar, that will take us to
about 12:45. Then I was thinking of coming back about 1:30.
Ms. Lynch. Thank you, Senator.
Chairman Grassley. Is that going to give you enough time?
Ms. Lynch. Yes, indeed. Thank you, Senator.
Chairman Grassley. Okay. The Senator from Rhode Island.
Senator Whitehouse. Thank you, Chairman.
Ms. Lynch, welcome to the Committee and congratulations on
your nomination. I look forward to working with you on a
considerable number of issues as we go forward.
Since there has been a significant amount of commentary
about the President's immigration measures, the Ranking Member
has asked me to put into the record letters from law
enforcement leaders in Ohio, Utah, Iowa, Indiana, and Wisconsin
supporting the President's policies and concluding, ``While the
executive reforms improve a broken immigration system, they can
achieve only a fraction of what can be accomplished by broad
congressional action. We continue to recognize that what our
broken system truly needs is a permanent legislative solution
and urge Congress to enact comprehensive immigration reform
legislation.''
There is a similar letter from the member organizations of
the National Task Force on Sexual and Domestic Violence, and a
similar statement for the record of Stan Marek of Texas, the
president and CEO of the Marek Family of Companies. If I may
ask unanimous consent that those be made a part of the record?
[Pause.]
Senator Whitehouse. Without objection.
[The information appears as submissions for the record.]
Senator Whitehouse. There has also been considerable
commentary about Attorney General Holder in a hearing at which
he does not have the opportunity to defend himself, and it is
my view that a significant amount of that commentary would not
withstand his ability to defend himself if he were here. So let
me say in response to that, there are legal arguments and
policies that fall outside a particular political ideology.
That does not make them outside the mainstream, and it does not
politicize a Department to make those arguments or pursue those
policies.
I would argue actually that it is the effort to constrain
the Department within that ideology that would be politicizing.
I would further note, as a former United States Attorney,
that the Department that Attorney General Holder inherited was
in a very grave state of disarray, and that is not just a
matter of opinion. The Office of Legal Counsel wrote opinions
that were so bad, so ill-informed, so ill-cited to the case law
that pertained that when they were finally exposed to peer
review, they were widely ridiculed and ultimately withdrawn by
the previous administration.
We witnessed efforts to manipulate United States
Attorneys--and I know that you are one, Ms. Lynch--that caused
a very public rebellion among sitting U.S. Attorneys at the
time and that drew in past U.S. Attorneys appointed by both
Republican and Democratic Presidents. We were exposed to hiring
practices within the Department that were on their face overtly
political and had political litmus tests for hiring, a first in
the Department's history--it had not gone down that way
before--and ultimately a series of other issues as well as
those led to the resignation of the Attorney General of the
United States.
So it is easy to critique Attorney General Holder and blame
him for politicizing the Department, but I think history's calm
and dispassionate judgment will reflect that the Attorney
General actually brought the Department back from a place where
it had been, sadly, politicized. And I can say firsthand that a
lot of my U.S. Attorney colleagues, both from Republican and
Democratic administrations, were very, very concerned about
what was happening to the Department back then.
I should not waste the time of this hearing on that, but
with all the things that have been said about Attorney General
Holder, without him having the opportunity to defend and rebut,
I wanted to say that.
These are some of the areas I think we need to work on
together, Ms. Lynch, when you are confirmed, as I hope you will
be.
Senator Graham raised the issue of cybersecurity, and he
has been an extraordinarily helpful and forward-leaning Member
of the Senate on protecting our country from the dangers of
cyberattacks, whether ordinary criminal activity or the theft
of intellectual property wholesale on behalf of Chinese
industries or the really dangerous threat of laying in the
cybersabotage traps that can be detonated later on in the event
of a conflict.
I am concerned about the structure within the Department
for handling cybersecurity. At an investigative level, it is
spread across primarily the FBI, secondarily the Secret
Service, and to a degree Homeland Security. Within the
Department it falls under the rubric both of the Criminal
Division and of the National Security Division.
And I hope that with the assistance of the Office of
Management and Budget, you and I and the Office of Management
and Budget and other interested Senators can continue a
conversation about what the deployment of resources and
structure should look like against the cybersecurity threat in
the future. Will you agree to participate in such a process?
Ms. Lynch. Certainly, Senator. I think you have outlined an
important issue, and if confirmed as Attorney General, I will
look forward to working with you and all of the relevant
partners on this Committee and throughout Congress in making
sure that the Department is best situated to handle this
growing threat.
Senator Whitehouse. There is considerable bipartisan
legislation in the Senate on this subject, and I hope it is one
where we can get something serious accomplished in the months
ahead.
Another area where there is considerable bipartisan
legislation is on sentencing reform. Senator Durbin mentioned
his and Senator Lee's legislation that is at the front end, at
the sentencing end. Senator Cornyn and I have an almost
parallel bill that relates to the end of the sentence and how
to encourage incarcerated people to get the type of job
training, drug and alcohol rehabilitation, anger management,
mental healthcare, family reconciliation, job training,
whatever it is that they need, so that when they are put back
into society, they have less chance of going back to a life of
crime, of recidivating, as they say.
I think we have made a lot of progress on that, and I think
we have very good legislation, and I hope that you and the
Department will continue to be supportive of our efforts.
Ms. Lynch. Certainly, Senator. You have raised I think the
next challenge as we look at how to manage our prison
population and the issue of crime, which is, How do we help
people who are going to be released return to the communities
from which they came and become productive citizens as opposed
to returning to the prior behavior, criminal behavior that not
only landed them in prison but creates new victims? And that
will certainly be an important part of my focus.
Within the Eastern District of New York, we are very strong
participants in reentry programs that are sponsored by our
colleagues at the Brooklyn District Attorney's Office in one of
the most difficult neighborhoods in my district, in
Brownsville. We work extensively with those reentry efforts,
and those reentry efforts work exactly as you said in focusing
on job training and focusing on building skills so that those
coming out of prisons can become productive members of society
as opposed to those who will continue to harm others in
society.
So you certainly have raised very important issues, and I
look forward to continuing the discussion with you and people
on this Committee and throughout this body on those issues.
Senator Whitehouse. Thank you.
Another piece of legislation we will be working on, thanks
to the courtesy and care of our Chairman, Senator Grassley, is
a reauthorization of the Juvenile Justice and Delinquency
Prevention Act. It has been now 12 years since its last
reauthorization. And I appreciate very much that the Chairman
has been willing to work on this and has made it one of the
priorities for this Committee. Obviously, the way in which
juveniles are treated in our corrections system and are
detained have been important issues for the Justice Department,
and I would ask again for your cooperation and active support
of our process going forward to reauthorize the JJDPA.
Ms. Lynch. Certainly, Senator. I think that the way in
which we handle juveniles within the criminal justice system is
something that is of great concern to me in terms of both my
practice in the Eastern District of New York and also talking
to my colleagues, the other U.S. Attorneys across the country
who face these issues.
I believe it certainly is incumbent upon all of us to look
at the latest research on issues of how juveniles develop and
they manage themselves in certain environments and always be
open to reviewing those.
I look forward to working with you and others in discussing
that statute.
Senator Whitehouse. In my last seconds, you and I have both
had the experience of being United States Attorneys and I
suspect we have both had the experience of finding people who
were targets of our criminal enforcement efforts who, if we
look back into their pasts, might have avoided our attention
had they managed their drug or alcohol addiction----
Ms. Lynch. Certainly.
Senator Whitehouse [continuing]. Or gotten the mental
health treatment that they needed. And it is sort of a--I guess
it is almost--it is a societal sorrow when somebody like that
does not get the treatment that they need and ends up in the
criminal justice system and it is a great burden for the
taxpayer.
We have other legislation, the Comprehensive Addiction
Recovery Act, that I hope you will also work with us on to try
to make sure that where we can intervene with appropriate
addiction treatment and mental health treatment, we can steer
people to a more appropriate setting rather than burden the
criminal justice system with what is often an inappropriate
response to their conduct and to their condition.
Ms. Lynch. Certainly, Senator. In my own district, our
court has been very forward-thinking and very effective in
setting up diversion programs and a pre-trial opportunity
program that has provided great support for people and enabled
them to provide treatment and learn to become productive
members of society and, therefore, escape being trapped into a
spiral of criminal behavior and the results thereof.
Chairman Grassley. Thank you.
Senator Whitehouse. Thank you, Mr. Chairman.
Chairman Grassley. Thank you very much. And now Senator
Lee.
Senator Lee. Thank you, Mr. Chairman. And thank you, Ms.
Lynch, for joining us today. Thanks for your service to our
country.
I also appreciated our visit recently when you came to my
office and I am grateful to you for your support for sentencing
reform. The bipartisan legislation that I am working on with
Senator Durbin that he referenced a few minutes ago is
important and I appreciate your views on that as well.
I want to speak with you briefly going back to
prosecutorial discretion. As a former prosecutor, I assume you
would agree with me that there are limits to prosecutorial
discretion in the sense at least that it is intended to be an
exception to the rule and not to swallow the rule itself.
Would you agree with me that far?
Ms. Lynch. Certainly, sir. I believe that in every
instance, every prosecutor has to make the best determination
of the problems presented in their own area, in my case, in my
district, and set priorities and within those priorities,
exercise discretion.
Senator Lee. Right. Prosecutors inevitably have limited
resources and so it is understandable why they would choose,
when they have got to prioritize, to perhaps put more resources
into punishing, for example, bank robberies than they do into
punishing pickpocketers, and perhaps they might put more
resources into going after pickpocketers than they do going
after people who exceed the speed limit.
But at some point there are limits to this and that does
not mean that it would be okay, that it would be a proper
exercise of prosecutorial discretion to issue permits for
people to speed. Right?
Ms. Lynch. Certainly, sir. I think that if a prosecutor
were to come to the view that they had to prioritize one crime
over another, you would always still want to retain the
ability. Even if it was an area that was not an immediate
priority, if, for example, it became one because a particular
neighborhood was being victimized or, again, to use your issue
of speeding, there were deaths resulting from that, you would
want to have the ability to still, if you could, take resources
and focus on that issue. It might not be the first priority,
but you would want to have the ability to go back and deal with
that issue.
Senator Lee. And for that reason, prosecutorial authorities
or law enforcement authorities typically do not go out and say
we are only going to punish you for a civil violation involving
a traffic offense if you speed and then it results in an
accident with injuries. They leave open the real possibility,
indeed, the likelihood that someone can and will be brought to
justice in one way or another for any civil violation they
commit while speeding.
Ms. Lynch. Well, certainly, I cannot speak to all law
enforcement agencies. I know that depending upon the agency,
sometimes the priorities are known. Sometimes they are
expressed. Every office has guidelines. Certainly, the law
enforcement agencies are aware of certain guidelines in terms
of, for example, a dollar amount involving certain types of
crimes.
Senator Lee. But if someone went out and said I am going to
issue a permit to someone saying that they may speed, saying
they may go up to 100 miles an hour without receiving a ticket,
unless that person were also in charge of making the law in
that jurisdiction, that would be a usurpation of the system by
which our laws are made. Would you agree with that?
Ms. Lynch. Again, without knowing more about it, I am not
able to respond to the hypothetical. It certainly does not
sound like something that a law enforcement officer would be
engaged in, but, again, without knowing more of the facts, I am
not able to really respond to your hypothetical.
Senator Lee. Okay. Thank you. Let us shift gears for a
minute. Do you agree that citizens and groups of citizens
should not be targeted by Government, should not be the
recipients of adverse action by the Government based on their
exercise of their First Amendment rights?
Ms. Lynch. Certainly, I think that the First Amendment is
one of the cornerstones of a free society and I believe that
our jurisprudence has set forth great protections for
individuals, as well as groups, in the exercise of their First
Amendment rights to make sure that they are protected and not
targeted.
I also would say that, certainly, as a career prosecutor
and U.S. Attorney, there is really no place for bias or
personal view in terms of how we approach the types of crimes
that we pursue.
Senator Lee. And presumably you would say the same with
respect to someone's exercise of their rights under the Fourth
Amendment or the Fifth Amendment or the Sixth or the Seventh or
the Eighth. Under any of those protections, somebody should not
be punished by Government for exercising their rights under
those provisions of the Constitution.
Ms. Lynch. Certainly, I believe that there are safeguards
in place to prevent that. I think we always certainly have to
balance that with some--with the possibility of an extreme
situation in which we may have to move quickly, for example, to
protect someone or there is an imminent threat therein. But I
believe that there are protections set up for that purpose.
Senator Lee. Second Amendment rights, as well, presumably
then. Right?
Ms. Lynch. I believe that certainly the Supreme Court has
set forth clarity on this issue. And so, therefore, that--
regardless of the amendment--that certainly that is a protected
right.
Senator Lee. Are you aware that there is a program called
Operation Choke Point within the Department of Justice and that
through this program the Department of Justice and some other
Federal law enforcement agencies have on some occasions put
financial pressure on legal businesses, including hardworking
Americans who happen to be involved in the business of selling
firearms and ammunition, by essentially telling banks not to do
business with them?
Ms. Lynch. I am generally familiar with the name Operation
Choke Point and my understanding of it with respect to the
Department of Justice's current work--again, I have not been
involved in either the implementation or the creation of it.
But my general understanding of it is that it looks to target
financial institutions that are involved in perpetrating frauds
upon consumers and where there might be a financial institution
that is facilitating, for example, consumer bank accounts being
looted or consumers essentially losing their bank accounts,
that that is the target of that.
Again, I am not familiar enough with the specifics of it to
know about the underlying businesses that the transaction might
have originated from, but that is my understanding of the
program.
Senator Lee. Okay. I assume it is safe to assume that
should you be confirmed, you will work with me to make sure
that legitimate law-abiding Americans are not targeted for
their exercise of their Second Amendment rights.
Ms. Lynch. On that and any other issue of importance to
you, Senator. I look forward to hearing your concerns and
working with you on them.
Senator Lee. Thank you. Thank you. I want to talk about
civil forfeiture for a minute. Do you think it is fundamentally
just and fair for the Government to be able to seize property
from a citizen without having to prove that the citizen was
guilty of any crime and based solely on a showing that there
was probable cause to believe that that property was in some
way used in connection with a crime?
Ms. Lynch. Senator, I believe that civil forfeiture, civil
and criminal forfeiture, are very important tools of the
Department of Justice, as well as our State and local
counterparts through State laws, in essentially managing or
taking care of the first order of business, which is to take
the profit out of criminal activity.
With respect to civil forfeiture, certainly as implemented
by the Department, it is done pursuant to supervision by a
court. It is done pursuant to court order and I believe that
the protections are there.
Senator Lee. What if you just ask the average person on the
street whether they thought the Government could or should be
able to do that, should the Government be able to take your
property absent a showing that you did anything wrong,
thereafter requiring you, as a condition for getting your
property back, whether it is a bank account that has been
seized or frozen, whether it is a vehicle that has been seized,
that you would have to go back and prove your innocence?
So you are guilty, in essence, until proven innocent, at
least guilty in the sense that your property is gone. Do you
think your average citizen would be comfortable with that?
Ms. Lynch. Well, I certainly cannot speak in terms of what
the average citizen would or would not be aware of there. I
certainly understand that there has been a lot of discussion
and concern over asset forfeiture as a program as expressed by
a number of people.
Senator Lee. And particularly at the State level, such that
some States have adopted, in response to a pretty widespread
citizen outcry, laws significantly restricting the use of civil
forfeiture proceedings for that very reason, which leads to why
I raise this with you. It is my understanding that the
Department of Justice has, in many instances, been used as a
conduit through which law enforcement officials at the State
and local level can circumvent State laws restricting the use
of civil forfeiture within the State court system.
In other words, where, under the State courts, the State
law established system, that kind of forfeiture is prohibited,
people can go through the Department of Justice. The Department
of Justice will take out a fee, maybe 20 percent of the value
of the assets seized, and then those can be returned. It is a
process known as adoption.
Do you not think most Americans would find that concerning
if the Federal Government is facilitating efforts to circumvent
State laws that are designed to prohibit the very thing that
they are doing?
Ms. Lynch. I think that a number of people would have
questions about how the Department of Justice manages its asset
forfeiture program, and my understanding is that those
questions have been raised about various aspects of it.
My understanding is that the Department is undertaking a
review of its asset forfeiture program, and certainly, as U.S.
Attorney, I am aware of the fact that the adoption program that
you have just described, which did raise significant concerns
from a number of parties, has actually been discontinued by the
Department--that is the guidance that we have recently
received--with some exceptions for things like items of danger,
explosives and the like.
But it is part of an ongoing review of the asset forfeiture
program and certainly, should I be confirmed, I look forward to
continuing that review.
I would also say, Senator, that I look forward to
continuing these discussions with you as you express concerns
and interests on behalf of constituents or others as an
important part of the Department being as transparent as
possible in explaining how it operates.
Asset forfeiture is a wonderful tool. We return money to
victims. We take the profit out of crime. But as with
everything that we do, we want to make sure that we are being
as responsive as possible to the people that we are serving.
Senator Lee. Thank you. I look forward to those additional
discussions. And I see my time has expired.
Thank you very much.
Chairman Grassley. Thank you, Senator Lee. And now Senator
Klobuchar.
Senator Klobuchar. Thank you very much. And thank you so
much to you. I understand I am the only thing that stands
between you and your lunch and this entire room and their
lunch. We will have a good 10 minutes here. Your dad seemed to
enjoy that one.
[Laughter.]
Senator Klobuchar. I think everyone knows you have an
impressive resume and the one thing that has not been brought
up was something I actually read this weekend in the profile
about you, as I was thinking about this old saying we have in
our household that the obstacles on life's path are not just
obstacles, they are the path. And no one represents that better
than you, Loretta Lynch.
When I read about the story of you scoring so well on a
test in elementary school that they did not believe that you
had taken that test and then you took it again and scored even
higher. The obstacles are the path. Or the time that you became
the valedictorian of your class and the school officials said
that it would be too controversial if you were the only
valedictorian, and so they added some other students to be
valedictorian.
I was thinking of all the Senators in this building: We may
have more than a few valedictorians and I do not think that
ever happened to them.
So I thank you for your courage and your perseverance and
your parents' courage and perseverance that brought you to us
today.
I was going to start with a question. I know you touched on
it with Senator Schumer. As you know, I am a former prosecutor.
My office had about 400 people. We worked really well with the
U.S. Attorney's Office. Some of the U.S. Attorneys you know
that I worked with, Todd Jones, who is now the head of our
Bureau of Alcohol, Tobacco and Firearms, and then also Tom
Heffelfinger, who was the U.S. Attorney under Bush, and now we
have a guy named Andy Luger, who you are also aware of. And it
has been very important, that relationship that we have had
with local prosecutors and the U.S. Attorney's Office.
I wondered if you would talk a little bit more about how
you would view that as the Attorney General in terms of how you
would like your U.S. Attorneys to work with the local
prosecutors, who, as you know, can be very inundated with a lot
of cases. And sometimes we would view the U.S. Attorney's
Office as getting the luxury to spend a lot of time on cases
while we would be handling literally tens of thousands of cases
coming in our doors.
Ms. Lynch. Thank you, Senator. You touch upon an important
part of my practice. One of the benefits of being the U.S.
Attorney, as you have noted, is getting to know the other
prosecutors, not just my fellow U.S. Attorneys, but also the
numerous State and local prosecutors with whom we work so well.
I am so privileged in Brooklyn to have a strong
relationship with the District Attorneys in my district, in all
five counties, but also even outside of my district into
Manhattan, into the Bronx and beyond.
We talk often on issues affecting our community. We talk
often on issues affecting the entire district. I was privileged
to be able to share starting my prescription drug initiative
with the Brooklyn District Attorney's Office and also work
closely with District Attorneys in Nassau and Suffolk County in
handling the problem of prescription drug abuse, which has
spiked, unfortunately, and led to violence and, in fact, deaths
on Long Island.
Senator Klobuchar. I think you know that the stats lately
are that four out of five of heroin users started with
prescription drugs and then they turned to heroin. I think
people are shocked by that, but you see that connection with
the heroin, as well.
Ms. Lynch. We do, indeed, because of the opioid substance
of both drugs and we are, in fact, seeing a resurgence in
heroin not just in my district, but, unfortunately, across the
country.
This problem, like so many others, is one that must be
dealt with in a cooperative and collaborative manner and I am
incredibly proud to say that all of my United States Attorneys
colleagues take very seriously the opportunity and the
privilege to work with our State and local counterparts in
crafting prescription drug initiatives, heroin initiatives,
along with our violent crime initiatives.
We work closely with our State and local counterparts to
determine where is the best place for a case to be brought. We
look at things like the type of sentence that can be achieved
or the type of evidence that is admissible in the different
proceedings, and we cannot have those discussions without
building on a positive working relationship, and it has really
been a hallmark of this U.S. Attorney community.
Should I be confirmed as Attorney General, I intend to draw
upon that strength of my U.S. Attorney colleagues, as well as
my State and local counterparts throughout the country. People
who are at the ground zero of these problems often come up with
the best solutions. They pull in the healthcare community. They
pull in parents. They pull in community leaders and they come
up with a solution that works that can often be replicated in
other places.
I have seen that happen with my U.S. Attorney colleagues
particularly in the area of heroin abuse and some of the
initiatives that they are working on, as well.
So if confirmed as Attorney General, I intend to rely very
heavily on my prosecutorial colleagues.
Senator Klobuchar. Well, thank you very much for that
answer. At some point, I think we have talked about this
before, but Senator Cornyn and I did the drug take-back bill
and we have finally gotten the rules out from DEA on that and
we look forward to working with you on that.
Something else I was--I think I will talk to you later
about your work in Rwanda, but the fact that you have done some
very important international work, as well, but you have also
done prosecution of international terrorists here at home. And
what lessons have you taken from those cases?
I will tell you why this is important from a home State
perspective. As you know, our U.S. Attorney's Office in
Minnesota indicted and successfully prosecuted a number of Al-
Shabaab members who had gone over to Somalia. We also had the
first person killed in Syria fighting with ISIS was actually a
Minnesotan. And our U.S. Attorney recently issued some
indictments against others that have been recruited to fight
over in Syria.
There is a pilot program that the Justice Department has
involving three cities--L.A., Boston, and Minneapolis-St. Paul.
There is going to be an extremism conference coming up.
But, could you, one, talk about your experience with these
kinds of cases, and two, how you think that this pilot program
should be funded? We are concerned because it is coming out of
general funds, and if you would support some kind of specific
funding for the program?
Thank you.
Ms. Lynch. Certainly, just talking initially on the subject
of combating violent extremism, one of the most difficult
things are young men and, increasingly, young women, many of
them American citizens, who are turning to this radical brand
of terror and being recruited to go overseas and become trained
and are being sent back to perpetrate threats against the
homeland.
And the sources of this and the reasons for this are
debated endlessly and I think we need further discussion about
that, but we must take steps to combat this. We must take steps
to understand the level of disaffection that these individuals
are feeling with their current society and also help them and
their families understand the risks that they are facing.
Some of the most difficult conversations I have had have
been when I have visited the mosques in my district and had,
frankly, wonderful interaction with the participants there and
wonderful interaction with the residents there, but we have
talked about violent extremism and I have talked to parents who
have said to me, ``You know, I just don't understand why the
Government is targeting my youth.''
And we have had very frank discussions about how it is
difficult for any parent to know what their children are seeing
on the Internet and how they are responding to what is being
put forth on the Internet and the harm that it does not just to
our society, but also to those families, because they lose
their children. They absolutely lose them when they are sucked
up by this radical extremism and only to come back to be dealt
with, as they will, by American justice.
Certainly, with respect to the number--the types of cases
that my office has seen, we have seen individuals who started
off as relatively peaceful individuals, from what we could
tell, but were brought--were dragged into radical extremism,
did travel overseas, were recruited to then return to the U.S.
and perpetrate attacks there. We have seen that on more than
one occasion.
Senator Klobuchar. And the funding, are you aware of the
pilot program that we have going in the Twin Cities?
Ms. Lynch. Yes. Yes. A very important program.
Given the nature of the problems that have emanated from
that community and how it--the devastation that it has
essentially wrought within those families and within that
community, I think those issues are very important.
Certainly, I look forward to working with you on finding
the most effective way to fund those programs, because they
have a lot to teach all of us who are working in this issue.
Senator Klobuchar. Thank you. And the last thing I am going
to ask about is sex trafficking. And I know you have done an
impressive job of prioritizing the investigation and the
prosecution of trafficking cases.
This is something Senator Cornyn and I again have a bill on
sex trafficking, which is called the Safe Harbor bill, which is
supported by a lot of the groups, which creates incentives for
States to enact laws which treat the victims of sex
trafficking, the children, as true victims and not as
perpetrators themselves.
We think we can build better cases that way so people will
come and testify against those that are running the sex rings.
Could you talk about your work in this area and how you
view these safe harbor laws?
Ms. Lynch. Certainly, I think these safe harbor laws are an
essential next step in helping the victims of this horrible
scourge.
My office has been privileged to lead the way in
prosecuting numerous individuals who have essentially tricked
women through lies, deceit, also coercion and duress, even
rape, before they are brought to this country and forced to
work here as sexual slaves.
It is a tremendously degrading process to these women and
one in which they find it difficult to escape because of either
a language barrier or the fact that, sadly, often their
children are being held in their home country to force them to
behave and to force them to continue this activity.
And certainly some of the work that I am most proud of has
been the efforts my office has undertaken with a number of the
organizations that help victims of human trafficking and also
with other governments to reunite these children with their
mothers after the cases are over.
Senator Klobuchar. Thank you. And I also look forward to
working with you. We also have a number of domestic victims, I
think 80 percent of the victims actually are from the U.S. as
well.
Ms. Lynch. Absolutely.
Senator Klobuchar. Especially when you get to the oil patch
of North Dakota and those kinds of places where the U.S.
Attorney's Office has played a major role.
So thank you very much. Thank you for your grace under
pressure today, and I hope the Chairman will let you get some
lunch.
Thank you.
Ms. Lynch. Thank you, Senator.
Chairman Grassley. Are things going okay for you, Ms.
Lynch?
Ms. Lynch. Yes, and thank you for inquiring, Mr. Chairman.
Chairman Grassley. We will now adjourn until 1:35.
[Whereupon, at 12:46 p.m., the Committee was recessed.]
[Whereupon, at 1:40 p.m., the Committee reconvened.]
Chairman Grassley. Welcome back, Ms. Lynch. Hope you are
ready to continue.
Ms. Lynch. Thank you, Senator.
Chairman Grassley. Okay. And according to the seniority
arrangements that we are doing, Senator Cruz of Texas is next.
Senator Cruz. Thank you, Mr. Chairman.
Good afternoon, Ms. Lynch.
Ms. Lynch. Good afternoon, Senator.
Senator Cruz. And congratulations on your nomination.
Congratulations to your family, who I know are justifiably
proud of you for being nominated to this post.
Ms. Lynch. Thank you, sir.
Senator Cruz. You know, I will note a number of my friends
and colleagues who practice law in New York have reached out to
me with words of praise for you, describing your tenure as U.S.
Attorney there as that of a no-nonsense prosecutor and as a
U.S. Attorney who honored and respected the law. And so for
that, I congratulate you.
You began your remarks by describing how, with new
attorneys in your office, you remind them that they take an
oath not to the Attorney General, but to the Constitution.
That same thing is true for the Attorney General of the
United States, and I have long expressed my very deep concerns
with the conduct of the current Attorney General, Eric Holder.
The Attorney General has a long and distinguished history,
a bipartisan history, of being willing to stand up to the
Presidents who appointed them. Attorneys General in both
parties have demonstrated fidelity to law and to the
Constitution, even when it meant telling the President of their
own party ``no.''
Now, that is never easy to do, but part of what has made
the Department of Justice special is that Attorneys General,
both Democrat and Republican, have honored that commitment, as
you noted to your young lawyers, to the Constitution, not to
the President who has appointed them. My single greatest
concern with the tenure of Attorney General Eric Holder is that
I do not believe he has upheld that tradition. I believe that
the Department of Justice has behaved more like a partisan
operation for the President than an impartial law enforcement
agency.
And so I want to ask you at the outset the simple question
of, if confirmed, how would your tenure as Attorney General
differ from that of Eric Holder's?
Ms. Lynch. Well, Senator, I think you have raised an
important issue of the role of the Attorney General. As we have
discussed, it is an incredibly important Cabinet member, but
the Attorney General is a Cabinet member unlike other Cabinet
members in that the obligation of the Attorney General is first
and foremost to represent the American people, to protect and
defend the Constitution, and to faithfully execute the laws as
passed by this body.
In interacting with the White House or any agency, if
confirmed as Attorney General, I would do so in the manner in
which I have conducted myself as United States Attorney--with a
full and fair evaluation of every matter brought before me,
with a full and fair review of all of the relevant laws, with
discussion with career prosecutors as well as even the most
junior people, whom I have found to often have the best insight
into matters. And only then will I make a determination as to
the step to be taken.
Going forward, every Attorney General creates their own
path. You have asked how I will be different from Eric Holder.
I will be Loretta Lynch. I will be the person that I have
always been as I have led my office through two terms as United
States Attorney, focusing solely on the protection of the
people of my district----
Senator Cruz. Excellent.
Ms. Lynch. And, if confirmed as Attorney General, on the
protection of all of the American people.
One thing I do wish to say, Senator, is that with respect
to the issues that you raise, I greatly appreciate your sharing
them with me, both now and during the discussion that we had in
your office.
I look forward to more discussions with you and your
colleagues, and I want to pledge to you now that I will always
listen to your concerns. I will consult with this body where
appropriate, because there is a great collective wisdom here
and experience, both prosecutorial and legal. And I look
forward to having a dialogue with you and, frankly, crafting a
positive relationship, not just with this Committee, but with
Congress.
Senator Cruz. Well, Ms. Lynch, I thank you for that.
That commitment is welcome and would mark a sharp break
from the practices of the current Department of Justice.
One of the frustrations of a number of Members of this
Committee is that the Department has not been responsive to
this Committee's requests and indeed, that--were that to
change, that would be highly welcome.
Let me focus on one and, if time allows, two specific areas
where I believe the Department has gone with partisan politics
instead of upholding the law. And let us start with
immigration, which has been a topic of much discussion already.
You mentioned in your opening statement that you had now
taken the opportunity to review carefully the OLC opinion on
the President's Executive amnesty. Do you agree with the legal
analysis in the OLC opinion?
Ms. Lynch. Senator, I have had occasion to review the OLC
opinion that dealt with the Department of Homeland Security's
request for a legal framework in how to prioritize removal of
certain undocumented immigrants--or really, all the
undocumented immigrants under their jurisdiction.
I did not see a grant of amnesty there or a pathway to
citizenship. Certainly, as I reviewed the opinion as well as
the letters from some scholars who wrote in support of it, it
seemed to be a way to look for the legal framework based up on
case law precedent, prior action of Congress, as well as the
discretionary authority of the Department of Homeland Security
to prioritize this removal.
And certainly, placing those most dangerous of the
undocumented immigrants at the top of that list seemed to me to
be a very reasonable exercise. Certainly I would want to hope--
I would hope that the protection of those communities where
undocumented immigrants involved in, for example, violent
crime, gang activity, terrorism, would be at the top of the
list.
Senator Cruz. Ms. Lynch, you said now and before in your
opening statement that you found the legal analysis reasonable.
OLC operates in the place of the Attorney General of the United
States, and an OLC opinion operates as the legal judgment of
the Attorney General as the chief legal officer for the United
States.
And so my question is quite simply do you agree with the
legal analysis in that memorandum? Would it have been your
legal analysis, had you been asked the same question?
Ms. Lynch. Well, Senator, I certainly am not able to say at
this point what my--if my legal analysis would have taken the
same pathway and the same steps, because I have not reviewed
all of the cases and reviewed all of the memoranda that I am
sure went into that.
But what I can say is that, again, as the opinion seeks to
talk about the exercise of Executive discretion, it seemed to
be looking at precedent, actions of Congress, as well as the
immigration laws, to see if there was a legal framework for the
requested actions.
And what I noted was that for some of the actions, the
Office of Legal Counsel found that there was a legal framework
for some of the actions that the Department of Homeland
Security wanted to set in place, but for some of the requested
actions, the Office of Legal Counsel found that there was not
the appropriate legal framework for some of those actions and
said--and my understanding is advised the Department of
Homeland Security that they should not proceed along certain
ways. And my understanding is that that advice was taken. So I
do believe that the Office of Legal Counsel has the important
obligation to look at the law, look at the facts, look at the
action that is being brought before it and say where there is
an appropriate legal framework, as well as where there is not
an appropriate legal framework.
Senator Cruz. Ms. Lynch, I would note that I have twice
asked you if you agree with the analysis, and you are a very
talented lawyer and so I suspect it is not an accident that
twice you have not answered that question. You have described
what OLC did, but have not given a simple answer.
Do you agree with that analysis or not?
Ms. Lynch. Senator, I have told you that I did find the
analysis to be reasonable. I did find it to recognize the
issues and it did seem to provide a reasonable basis.
Senator Cruz. Well, in 2011, before the last election,
President Obama said, ``With respect to the notion that I can
just suspend deportations through Executive order, that is just
not the case, because there are laws on the books that Congress
has passed.'' Now, do you agree with what President Obama said
in 2011?
Ms. Lynch. Senator, I do not know what legal opinion he was
relying on at the time. Certainly the subsequent legal opinion
talks about the temporary deferral of deportation in a way that
does provide a legal framework for it, but I do not know if the
President was speaking of this exact same issue or not. I
simply could not provide a legal opinion about the President's
comments at this time.
Senator Cruz. Now, the Executive action--in my view, the
OLC opinion has no legal basis whatsoever. It hinges upon the
notion of prosecutorial discretion, and you rightly described
how any prosecutor will prioritize some cases over others, for
example, focusing on more violent criminals.
In your office, as U.S. Attorney, you have certainly
exercised prosecutorial discretion. Was it your practice for
any category of crimes to suggest to those who may have
violated the criminal laws that they can come into your office
and seek a written authorization exonerating them of their past
crimes and authorizing them to continue carrying out crimes for
a large categorical group of offenders?
Ms. Lynch. Senator, we would not have that type of direct
dealing with offenders. They would come to our attention as
part of an investigation or part of an issue where they would
already be under suspicion of some sort of wrongdoing. So we
would not have that type of discussion with someone who might
be represented or might have other rights. We would not have
that type of discussion with someone.
Senator Cruz. So that is not anything you ever did?
Ms. Lynch. No. We do have priorities within my office. We
do have guidelines within my office. Those are shared with our
law enforcement colleagues. We also share them with many of our
State and local colleagues as we discuss where to best place
certain types of cases.
Senator Cruz. Thank you very much, and we will continue
later on in the day.
Chairman Grassley. Thank you, Senator Cruz.
Senator Franken now.
Senator Franken. Thank you, Mr. Chairman, and
congratulations on being the Chairman.
Chairman Grassley. Thank you. I am glad to be Chairman, I
can tell you that.
Senator Franken. Yes, I know. I know you are.
[Laughter.]
Senator Franken. Ms. Lynch, congratulations on your
nomination.
Ms. Lynch. Thank you, Senator.
Senator Franken. I was very--it was great meeting with you.
Your reputation for being smart and tough precedes you.
And you did not disappoint in our meeting, and thank you
for the wide-ranging conversation we had--how was lunch?
[Laughter.]
Ms. Lynch. Excellent. Thank you, sir.
Senator Franken. Yes. You enjoyed lunch?
Ms. Lynch. Yes, sir.
Senator Franken. Good.
I discussed a couple of things, or a number of things, when
you were in my office, and I want to bring them up again and
talk about them. One is our prison system. We have----
Ms. Lynch. I am sorry.
Senator Franken. Our prison system, I want to talk about
our prison system. The United States has 5 percent of the
world's population, 25 percent of the prison population, and I
think one of the biggest problems is that we have used our
criminal justice system as a substitute for a well-functioning
mental health system. We have a lot of people in prison, in
jails in this country who should not be--probably should not be
there, and who--it is not serving anybody any purpose.
We have young people and others with mental illness who are
in solitary confinement and it just makes their mental health
worse. What I want to do to address that is something called
the Justice and Mental Health Collaboration Act. It is a
reauthorization of MIOTCRA, which is the Mentally Ill Offender
Treatment and Crime Reduction Act, which has been very
bipartisan in the past and should be--in fact, it is
bipartisan. It has been carried by a Republican in the House.
And I just want to ask you for your support, as we go
forward, in making sure that our criminal justice system is not
just wasting money, but wasting lives, and that you will work
together with me on that.
Ms. Lynch. Senator, I look forward to working together with
you on that as well as other important issues.
I think you have highlighted--one of the most important
developments in criminal justice research and literature has
been the ongoing research that has been done into the root
causes of so much of our criminal activity. In particular,
where the mentally ill are involved, we continue to learn more
and more about how that illness impacts them as they make their
way through the criminal justice system. And I look forward to
taking advantage of that new knowledge with you and working
with you on that and other important issues.
Senator Franken. Some of this involves--I do not know if
you have heard of crisis intervention training, but crisis
intervention training is teaching both police on the ground and
corrections officials in prisons to recognize when they are
seeing someone with a mental health problem, and to deal with
it in the correct way.
Ms. Lynch. Certainly. Certainly, because I think the
research has shown--and certainly anyone with experience with a
family member or friend who has a mental illness knows--that
sometimes conditions may manifest themselves in ways that
appear to be disruptive but are, in fact, a reflection of the
illness.
Senator Franken. And so what I will be doing with this is
doing mental health courts so that if a prosecutor and an
arresting officer and the defense attorney and the judge say
this person belongs in a mental health court so that they can
be treated and not go to prison, where it is going to clog up
the prison system and make this person's condition worse, then
we will do that.
And also, to do veterans courts, because we have so many
veterans that are coming back with invisible wounds.
Ms. Lynch. Yes.
Senator Franken. And sometimes those invisible wounds will
be medicated by drugs or by alcohol, and instead of going to
prison, maybe it is time we can go to a veterans court.
Ms. Lynch. Certainly, Senator. I know that some of my U.S.
Attorney colleagues have been instrumental in working on the
concept of veterans courts in particular as part of the
Department's strong commitment to protecting all of the rights
of veterans.
You are so correct. We ask so much of our men and women in
uniform, and they come back to us often different from how they
left, with wounds that we can see and wounds that we often
cannot see. And I believe we have an obligation to provide them
the best treatment, to thank them for their service to our
country.
Senator Franken. Fabulous. I look forward to working with
you on that, should you be confirmed, which I hope you will.
Let me move on to something kind of specific. I was Chair
and now will be Ranking Member of the Privacy, Technology and
the Law Subcommittee. And there is a lot of technology out
there that is new, that we are learning about some unforeseen
consequences of it. There is a thing called stalking apps; I do
not know if you know about it. Yes, we discussed this.
And--incredible. When I first did a location Privacy
Subcommittee hearing, my first hearing, I got some testimony
from the Minnesota Coalition for Battered Women. And they told
us a story about a woman who had an abusive partner, and she
went to a county building in St. Louis County in Northern
Minnesota. And while she was there, on her phone she got a text
from her abuser, ``Why are you in the county building? Are you
going to the domestic violence place?'' Well, it scared her so
much they took her to the courthouse to file an order against
him. While she is there, she gets this text from him saying,
``Why are you at the courthouse? Are you getting a restraining
order against me?'' This terrified her. And it turns out--and
we have had testimony on this--this is very common.
Now, DOJ does have the authority under existing wiretap
laws to prosecute the creator of apps that allow stalkers to
listen to their victims' phone calls, intercept text messages
or otherwise intercept content from victims' phones. And DOJ
has prosecuted one app developer who created an app to do this
thing, and I would ask that you continue to do that.
But looking ahead, would you work with me? I have a bill to
stop these things, to stop the marketing--the manufacturing of
stalking apps. And also would ask that DOJ keep data on this.
Because the last real data we have on this is, like, from 2006.
And I do not know how much you keep up with technology, but
since then, a lot more people have these smart phones, and this
is a real problem.
Ms. Lynch. Senator, you have outlined a very important
issue as it relates to the victims of domestic violence or
anyone who fears that someone that they thought was close to
them might turn on them instead. And certainly I look forward
to working with you and keeping you apprised not only of the
Department's efforts in the continued prosecution of these
matters, but to look at this statute with you and provide
whatever assistance we can.
Senator Franken. Thank you. I look forward to that as well.
And one last thing; I have about two minutes. I am very
concerned about the telecommunications industry consolidating,
and I am specifically concerned about Comcast's proposed
acquisition of Time Warner Cable. This is the largest cable
provider and the second-largest cable provider. It is the
largest broadband Internet provider and the third-largest
broadband Internet provider.
To me, this is just too big, and they would have
unprecedented power in the telecommunications industry. I
have--there has been a lot of comment on this, including my
comment on this to the Antitrust Division. Will you commit to
reviewing the serious concerns about the proposed Comcast-Time
Warner deal that I and so many others have raised? And just do
all that you can to ensure that the Antitrust Division is
empowered to stand up to telecommunications giants like
Comcast, if that is what it deems necessary?
Ms. Lynch. Certainly, Senator. The Antitrust Division plays
an extremely important role in keeping our markets competitive
and open for everyone, and I look forward to learning more
about this case, to reviewing those issues and to working with
you to make sure that all of the concerns about this are
brought to our attention so that they can be dealt with by the
Antitrust Division as we move forward.
Senator Franken. Okay, then, I will probably vote for you.
[Laughter.]
Senator Franken. Thank you. Thank you, Mr. Chairman.
Chairman Grassley. Thank you, Senator from Minnesota.
Now we go to Senator Flake.
Senator Flake. Thank you, Mr. Chairman.
And thank you, Ms. Lynch. I appreciated hearing your life
story and seeing your family here, and appreciated the meeting
we had in my office a few months ago as well.
I brought something up there and I will bring it up to you
again with regard to the border situation in Arizona.
We have had, obviously, ongoing problems on the border; we
share such a large border with Mexico. But there have been some
considerable successes, and one of the successes over the past
several years has been in the so-called Yuma Sector, where we
have seen apprehensions go from about 140,000 in fiscal year
2005 to about 6,000 last year. And so, considerable success.
That contrasts with the Tucson Sector, which has seen a
drop, I think, because of the economy; we have seen a drop
anyway, but not nearly as significant. In fact, there were
about 87,000 apprehensions in the Tucson Sector.
One of the things that I think just about everybody
attributes success in the Yuma Sector to is something called
Operation Streamline, and it allows a so-called consequences
program to be implemented where first-time crossers are met
with consequences. And it is pointed to by certainly law
enforcement organizations in Yuma and along that sector, and
just about everyone else recognizes it has been successful.
The problem is just last year it looks like DOJ has said
that they are no longer going to implement parts of that, and
that first-time offenders, unless there is some other
circumstance, they will not be prosecuted.
What are the specifics of this new policy, as you
understand it, with Operation Streamline?
Ms. Lynch. Certainly, Senator. I have had the opportunity
to know somewhat about this matter from my discussions with my
colleagues, the U.S. Attorneys, not just along the Arizona
border, but also in Texas and California.
And they work hard every day to keep our border safe and
essentially to protect the people in their districts, but also
to deal with this ever-growing problem.
And I believe that--again, I am not familiar with the
current status of Operation Streamline, but as it relates to
first-time prosecutions of individuals.
Individuals are still being prosecuted, and to the extent
that a first-time crosser would not be prosecuted, they still
would be subject to just pure removal without there being a
criminal case involved.
And I believe that the issues in managing the program had a
great deal to do with resources, particularly with the budget
constraints that offices have found themselves under in recent
years. But I can assure you, Senator, that the commitment to
protect the border is strong, not only among the U.S. Attorneys
who work on the border, but throughout the U.S. Attorney
community and the Department, and would be one of my priorities
also, as Attorney General.
Senator Flake. As I mentioned, this is what distinguishes
the Yuma Sector from the others--it is the success with this
program. If you are saying now that it is a budget issue, why
haven't we seen concern about the budget or those budget
aspects? Why hasn't DOJ come to Congress and said, we are
having issues here, and so in order to continue with this
program, we are going to need additional funding? To your
knowledge, has that happened?
Ms. Lynch. I am not aware of what has gone into the
specifics of the Department's budget. I am generally aware of
the budget as it relates to U.S. Attorneys, but not the
Department as a whole or as it relates to specific programs, so
I am not able to provide that information to you.
Certainly, this is certainly something that I would be
working closely on, should I be confirmed as Attorney General.
Senator Flake. I guess I will put it this way. Barring
budget issues, is this a program that you are committed to, or
do you have other issues with it?
Ms. Lynch. Certainly it is a program that I think has been
effective. I think there have been concerns raised about
resources and about the way the program has been managed, from
the judiciary and others. We are always trying to be responsive
to all of the parties involved in these.
But with respect to the issue itself, I am certainly
committed to working on that issue with you and the Members of
this Committee, be it through Operation Streamline, if it can
be maintained, or in an equally effective program.
Senator Flake. Okay. Well, the record--we have not, to my
knowledge, received any concerns about budget issues with
regard to Operation Streamline. It seems to have been another
decision that was made. And I will be following up with you.
We want to make sure that--let me just step back. I believe
we need to do a lot with regard to immigration policy. I am a
sponsor of the comprehensive bill that went through the
Congress two years ago, through the Senate, and did not get
through the House. So this is not all we need to do, but it is
a significant part of what we need to do.
And Arizonans have paid the price, a disproportionate
price, for a long time for the Federal Government's failure to
have a secure border. And so when we have programs like this
that work and we see success in one sector, and everybody can
point to that, then it is very disturbing when DOJ pulls back
on that. And we fear that the Yuma Sector, as the economy kicks
up again and the crossings are more frequent, that we are going
to have the same problems that we had a few years ago. And we
cannot go on with that.
Secretary Johnson is in Arizona, or just visited Arizona
and visited the border. He's done that a few times, met with
the ranchers, with some of their concerns, particularly in the
Tucson Sector. And there is still a lot that needs to be done,
and it is going to require a real partnership between a lot of
people to make sure that it works.
Switching gears, some of my colleagues have mentioned trade
secrets and economic espionage. But just to focus specifically
on the theft of trade secrets and foreign governments, last May
the Department of Justice announced the indictments of five
Chinese military hackers for foreign theft of trade secrets and
economic espionage, among other crimes.
When announcing these charges, Attorney General Holder said
that the administration will not tolerate actions by any nation
that seeks to illegally sabotage American companies and
undermine the integrity of fair competition and free markets.
This case will serve as a wake-up call to the seriousness of
ongoing cyberthreats, he said. Would you agree with Attorney
General Holder's statement, as well as other statements by the
executive branch that this is a growing and persistent threat?
Ms. Lynch. Senator, I would agree with those statements,
and I would add that I have seen through cases in my own
district that this is a growing and increasing threat. My
office has also worked on matters involving foreign nations
attempting to obtain technology under false pretenses. We have
worked closely with our colleagues in other agencies to bring
these cases to fruition. I am very proud of the work that we
have done.
And it is an ever-growing concern, certainly, and has also
been expressed by the FBI, not only under the current director,
but under former Director Mueller. So I look forward to working
closely with our law enforcement partners and with this body to
deal with the numerous ways that we have to fight this problem.
Senator Flake. Last Congress I introduced the Future of
America Innovation and Research Act, or the FAIR Act, that
provides companies with a legal remedy when their trade secrets
are stolen from abroad.
The concern is that since the Economic Espionage Act was
enacted in 1996, I think there have only been 10 convictions
under Section 1831. That is a lot of time for just a few
convictions. Since the FBI cannot investigate and DOJ cannot
prosecute every single theft of trade secrets, does it make
sense that there might be a Federal civil action, cause of
action that could help these companies through another remedy?
Does that make any sense?
Ms. Lynch. Well, certainly, Senator. From my experience in
advising companies, boards, and general counsel, I understand
the importance of corporations being empowered to act on their
own behalf and protect their intellectual property and their
trade secrets.
I have not had the opportunity to study the bill that you
discuss, but I certainly look forward to doing so and having
further discussions with you.
Senator Flake. Well, I appreciate that.
Victims services, another area that has been of some
concern. Last year Congress passed the Victim of Child Abuse
Act Reauthorization and I was pleased that the sponsors of the
bill agreed to include an important provision that clarified
Congress' intent that the money from the crime victims' fund
should only be used to assist victims of crime. Will you commit
to follow that new law and direct the victim advocates in the
U.S. Attorney's Offices that this money only be used for
victims? In the past we have seen it used for witness travel
and other administrative duties and not actually focus on the
victims.
Ms. Lynch. Certainly the management of the issue of how to
provide not only restitution but support to victims is an
important one to the Department and to me as a United States
Attorney. And I think that we would have to work to implement
the law that you have discussed. My understanding is that it is
being implemented, certainly that guidance has gone out to
ensure that the victim advocates and offices are being
appropriately focused.
I know in my own office we have victim advocates who work
closely with the victims of crimes--families who have suffered
incredible loss--and provide great support to them.
And I fully support empowering those professionals.
So, yes, Senator, I believe that the law that you mention
is one that is being implemented. I certainly will commit to
ensuring that it is so.
Senator Flake. Okay. Thank you and should you be confirmed,
I look forward to working with you.
Ms. Lynch. Thank you, sir.
Chairman Grassley. The next person is Senator Blumenthal
and when Senator Coons comes back, obviously we skipped over
him, I will call on him as the next Democrat.
Senator Blumenthal. Thank you, Mr. Chairman. And thank you
for your courtesy and thoughtfulness in the way that you have
conducted this hearing and I am proud to serve under you as
Chairman.
Chairman Grassley. Thank you.
Senator Blumenthal. And thank you, U.S. Attorney Lynch, for
being here today and also for having your family here. Welcome
to your husband, Stephen, and your dad, Lorenzo. The two most
common words, I think, that have been used to describe you are
``smart'' and ``tough.'' And I can see from your dad and I am
sure it is true of your mom, that you come by those qualities
honestly.
Ms. Lynch. Yes.
Senator Blumenthal. In the best sense of the word. And you
should be very proud of your daughter. Your testimony has been
among the most accomplished and impressive that I have seen as
a Member of this Committee.
And I am sure you have done yourself a lot of good today,
not that you necessarily needed it, but thank you for your very
forthright and erudite answers.
I want to begin by focusing on human trafficking. You have
a great record on human trafficking. I count 10 major
prosecutions that you have done while United States Attorney,
focusing particularly on targeted sex trafficking while also
pursuing labor trafficking.
And in a case that you brought against the 7-Eleven
franchisees, you stated publicly that the defendants were
running a modern-day plantation system and the system looked a
lot like modern-day slavery.
You brought the case relying on statutes relating to
immigration enforcement and identity theft and wire fraud, not
on the statutes that specifically focus on criminalizing human
trafficking. I wonder whether you could relate to us whether
you think those statutes need to be strengthened?
If you could not, in a sense, rely on them, to bring those
cases based on human trafficking, whether we should perhaps
strengthen them. And in particular, the Trafficking Victims
Protection Act of 2000 provided mandatory restitution for
trafficking victims, a provision that is unfortunately more
unenforced than enforced, in fact rarely enforced, I think, to
provide for restitution.
A recent study by the Human Trafficking Pro Bono Legal
Center took a look at how this requirement works in practice
and they found that in only about 36.6 percent of the cases did
prosecutors bother to request restitution. So my question is
really two-fold.
Number one, do the statutes need to be strengthened, and
number two, can you and would you do more to make sure that
restitution is provided to the victims of human trafficking?
Ms. Lynch. Certainly, Senator. The issue of restitution for
the victims of human trafficking is an important one,
particularly as we do increase the number of cases that we
bring.
Certainly sometimes there are situations where a court may
not impose restitution because the funds are not there, or for
other legal reasons. But where we can, we always do seek a
restitution order for the victims.
We, in particular, have worked with other governments to
provide them information where we have found, for example, that
certain small cities in Mexico have been a prime source of
those who would traffic women into the United States, into the
Eastern District of New York. We have worked with the Mexican
government to provide them information so that they could
possibly effect asset seizures that we could not, under our
particular asset forfeiture laws.
So it is a very, very important issue to me as United
States Attorney, and should I be confirmed as Attorney General,
it would be one that I would look forward to working with you
on to make sure that all of the laws involving victim
protection are as strong as possible.
With respect to the 7-Eleven case, we did not have the
evidence that the workers had been moved across State lines to
effectuate the crime. And so, therefore, we would not have been
able to use the trafficking laws per se. But as with that case,
with every case, we look at the relevant facts and the laws and
bring the strongest case that we can. And certainly where we
have seen numerous, numerous incidences of children and women
being trafficked from within the United States, sometimes even
simply just crossing one State border as well as from overseas,
we have never hesitated to act. And, should I become Attorney
General, it will be one of my priorities.
Senator Blumenthal. I would welcome that priority very much
as the Co-Chairman of the Human Trafficking Caucus in the
Senate. It is a very bipartisan one; the Co-Chairman is Senator
Rob Portman of Ohio. So I look forward to working with you on
it.
First of all, I welcome your comments about the invisible
wounds of war. Thank you to your uncles and cousins for their
service in Vietnam.
Ms. Lynch. Yes.
Senator Blumenthal. And to your brother for his service as
a Navy SEAL. I say that as a dad of a Marine Corps Reserve
veteran who served in Afghanistan and another son who is
currently in the Navy. And I would hope that you will continue
to focus on those issues relating to post-traumatic stress and
traumatic brain injury as they may be a cause of certain kinds
of conduct that may be unwelcome, may even be criminal, because
what we found is that a better understanding of those invisible
wounds of war and the inner demons that many of our veterans
bring back with them can lead to more thoughtful and humane
treatment through our criminal justice system.
I want to ask you, finally, in the time that I have, about
one of the criticisms that has been made of the Department of
Justice in its allegedly too-lenient treatment of certain
corporate defendants as being too big to jail, so to speak.
In remarks that you made after the Department of Justice
entered into a settlement with HSBC for money laundering--I am
sure you recall it--you said that the settlement had deterred
that company, but you were not sure that it would deter other
companies. So my question is whether more can be done to more
aggressively prosecute white-collar crime, corporate crime, to
dispel at least the widespread impression or perception that
perhaps the Department of Justice has been too lenient, and in
particular would you work with me on a bill that I have offered
that would make certain corporate officers criminally liable if
they are aware of the significant, potentially deadly risk to
workers--workplace safety problems--and fail to act or make it
public?
So this bill is called Hide No Harm. It is a bill that is
designed to protect workers on their jobs and it focuses on
that part of the potential wrongdoing that may be committed by
corporate officers. But also, again, a two-part question. Would
you consider pursuing more aggressively criminal laws that may
be applied to corporate officers who are involved in
malfeasance or violations of Federal criminal laws generally?
Ms. Lynch. Certainly, Senator. When it comes to white-
collar crime or any kind of crime, as a career prosecutor and
as U.S. Attorney, I have been very aggressive in pursuing those
types of cases.
With respect to should I become confirmed as Attorney
General, I would continue that and direct that the Department
of Justice continue its focus on examining the facts of every
case following the law wherever it took us.
At the outset, no individual is too big to jail. No one is
above the law.
There are certain situations where we come to a different
resolution or may decide that a civil resolution is
appropriate, but that is only after a full and fair analysis of
all of the facts and the law and the relevant burdens under the
criminal justice system or the civil system.
But that being said, Senator, I believe if you look at the
record of the Eastern District of New York, we have prosecuted
a number of corporate officers for insider trading with respect
to the Brooks case, and corporate malfeasance in other cases,
as well as for violations of the FCPA. We have struck
significant--wrung significant concessions from corporations
and made major changes in the way in which corporations and
financial institutions are structured and operate that act as
deterrent. And we have been very clear with respect to the
industries within which we are looking that, should a
corporation not engage in preventive behavior or should they
not take seriously the type of investigation that we bring,
that criminal charges will be brought.
Senator Blumenthal. Thank you. And I know of your very
aggressive and distinguished record in this area and it is one
of the reasons why I strongly support you and I look forward to
voting for you and working with you on all of these topics and
also reform of the Foreign Intelligence Surveillance Court.
Ms. Lynch. Yes.
Senator Blumenthal. As you know, I have advocated a public
advocate to defend and advocate constitutional liberties in the
course of this secret proceeding, the Foreign Intelligence
Surveillance Court. I am not going to ask you to commit on that
issue, but I hope that you will work with me on it as well as
these other issues. And I very much appreciate your being here
today and your public service and your family's service. Thank
you very much.
Thanks, Mr. Chairman.
Chairman Grassley. Thank you.
Ms. Lynch. Thank you, Senator.
Chairman Grassley. Thank you, Senator Blumenthal.
Now I go to Senator Vitter.
Senator Vitter. Thank you, Mr. Chairman and thank you Madam
U.S. Attorney and thank you for the meeting in my office. As I
told you at the time, I was very disappointed and frustrated
because you did not respond directly to any of my big topics.
And you said you would look into these matters and consider
them. And as I promised, I restated the big questions in
writing and I was further disappointed when yesterday I got a
letter saying there would be no response to that. But maybe the
third time is a charm for me asking them. So we will try here.
As I told you in my office, like many, many citizens and
Members of the Senate, I have a huge concern regarding what I
think is the President's illegal, unconstitutional Executive
amnesty. And I have a huge concern of the fact that you think
it is within the law. And we were talking about that.
So I am going to put up what is the central statutory
argument that the President's lawyers point to in terms of his
allegedly having authority for this Executive amnesty.
And it talks about granting parole only on a case-by-case
basis. So I guess one of my key questions which we talked about
in my office is do you really think his granting this amnesty,
this new status, to about 5 million illegal aliens is acting on
a case-by-case basis as mandated by the statute?
Ms. Lynch. Senator, I greatly appreciate the question as
well as the opportunity that we had to discuss the matters in
your office. With respect, again, to my review of the opinion
supporting the Department of Homeland Security's request for a
legal basis for taking certain actions and prioritizing
removal, as indicated, I did find it to be reasonable that we
would prioritize removal of the most dangerous undocumented
immigrants with our limited resources. Particularly those who
were involved in violent crime, terrorism, recent crossers,
those with criminal records--that seemed to me to be acting in
the interest of public safety and appropriate.
With respect to other individuals who may not be as high on
that priority list, my understanding is that that is a status
that they will have for a brief period of time.
And certainly as you look at the issue of Executive
discretion or prosecutorial discretion, you always want to have
the ability to still look at individuals and make a
determination as to whether or not they should be in that lower
priority. And I did not see anything in the----
Senator Vitter. Ms. Lynch, as we talked about in my office
though, his action goes well beyond setting prosecutorial
priorities, does it not? Apart from that, he goes further in
granting this broad category of folks a certain status for
three years at a time. And then he takes another affirmative
step in giving them a work permit. So those two steps are going
beyond setting priorities for prosecution, are they not?
Ms. Lynch. Well, certainly, Senator, as relates to how the
Department of Homeland Security manages the removal process for
those in the low-priority category, however they may be
determined to be, again, I am not aware if those regulations
have been set forth yet, so I cannot comment on how they will
be implemented. But I am----
Senator Vitter. Does his plan go beyond setting priorities
for prosecution or not? Doesn't it in fact go beyond that by
granting these folks a parole status and giving them a work
permit? Isn't that something additional to simply setting
internal priorities for prosecution of these cases?
Ms. Lynch. Well, Senator, just one minor point at the
outset. I believe that the Department of Homeland Security's
action refers to removal and not necessarily prosecution.
Certainly, with respect to prosecution, there is still robust
prosecution under the immigration laws and in my own district
they are a tool that I use frequently.
With respect also to what would happen to those individuals
who would be in a lower priority status, for lack of a better
word, again, I am not sure how the Department will go about
implementing that. My understanding is that the issue was: Was
there a legal framework for establishing such a program? And
the opinion indicated that there was.
Senator Vitter. Do you agree with that opinion?
Ms. Lynch. I believe individuals still have to apply, at
which point there would have to be a review of their
eligibility and the like.
Senator Vitter. Fundamentally, do you agree with the legal
opinion we are talking about?
Ms. Lynch. I thought that the opinion was reasonable.
I also thought that it made distinctions.
Senator Vitter. Again, going back to that legal opinion,
put that back up, this is a key element of it. So do you think
that action that is applying to about 5 million illegal aliens
is operating on a case-by-case basis?
Ms. Lynch. Senator, again, I am not familiar with how the
Department of Homeland Security will be actually implementing
the orders that it will be reviewing, and the applications that
it will be reviewing. So I am not able to provide you with the
specifics.
Senator Vitter. But you have read the orders. Do you think
that lays out a system that is operated on a case-by-case
basis?
Ms. Lynch. With respect to my review of the Office of Legal
Counsel opinion, it did provide a reasonable basis both for the
removal and for the prioritization of certain people as it came
to removal. When it came to the issue of whether or not there
could be a program for deferral, it seemed to refer to legal
precedent, to the statute itself, and to actions by this body,
among others. So it certainly seemed to provide a legal
framework for that.
And I believe, also, what I thought was noteworthy was that
with respect to the opinion, some of the requested actions by
the Department of Homeland Security the Office of Legal Counsel
found did not have the appropriate legal framework that would
have made them something that could be carried out under the
current legal system. And so the advice was not to go forward
with certain----
Senator Vitter. Okay. Well, I will take it as a yes, that
this is operating on a case-by-case basis. And I just think
that is really a clear obvious stretch to say that this action
that is going to affect 5 million people is following the law
on a case-by-case basis.
The law also says--in fact, this same specific citation--it
says, this decision on a case-by-case basis has to be made by
the Attorney General. Now, is it your understanding, under the
President's plan, that if you are the Attorney General, you are
going to be in the middle of that process making those
decisions?
Ms. Lynch. Well, Senator, I am not aware of the regulatory
framework and the rules that have come out around this statute
as to how that authority is either delegated or exercised. So I
am not able to give you an exact answer right now as to how
that would specifically be implemented----
Senator Vitter. Well, I have read the plan, and the plan as
I read it, is for all of that to be done in the Department of
Homeland Security. So my question would be, what is the
statutory basis to allow that when under the statute, not some
order, not some legal opinion, the statute, the law, word-by-
word, it says the Attorney General is in the middle of that
decision on a case-by-case basis.
Ms. Lynch. So, again, Senator, as presented to me by you,
today, and thank you for that information, again, I am not
familiar with the ways in which that particular authority has
been exercised by the Attorney General--whether it has been
delegated or how it is shared with the Department of Homeland
Security--so I am not able to provide you with the specifics at
this point as to how I would exercise that authority.
Senator Vitter. Well, again, I will have to be following up
for the fourth time, but that will be a central question. The
plan is not for the Attorney General to be in the middle of
this at all. The statute says that the Attorney General is. Why
aren't we following the statute?
Let me go to another case that goes to following the law
which Senator Hatch brought up earlier, which is, your comments
regarding the Department of Justice's initiative, Smart on
Crime initiative. Now, as I read it, and based on what I know,
this is just a way to clearly ignore mandatory minimums. And
there are crimes that have mandatory minimums. We can have a
good debate about whether those should be lowered in some cases
or not, but they are what they are. They are in the statute. So
why aren't we following the statute with regard to crimes with
mandatory minimums?
Ms. Lynch. Well, Senator, with respect to enforcement of
the narcotics laws that contain those mandatory minimums, laws
which I have had occasion to use on numerous occasions as an
Assistant U.S. Attorney, as a career prosecutor, and as U.S.
Attorney, those laws are being followed, not just by my office,
but throughout the U.S. Attorney community as well as by a
number of offices who have sought to prioritize how to handle
those cases in an era of limited resources. The issue with
Smart on Crime is focused on when is it best to use the
mandatory minimums and when do we not necessarily have to use
them? But every office still retains and in fact exercises the
discretion to impose a mandatory minimum sentence should
someone who may not on the fact of the policy fall into that
category, but upon review of the case clearly does. And that
has and is being done.
Senator Vitter. So when is it best to use the mandatory
minimums? So the mandatory minimums are not mandatory?
Chairman Grassley. When you get done with that answer, then
I will call on Senator Coons.
Ms. Lynch. Surely.
Chairman Grassley. Go ahead.
Ms. Lynch. Senator, with respect to the narcotics policy,
certainly as we handle these cases in the Eastern District of
New York, we rely heavily on the mandatory minimum statutes
when dealing with numerous drug kingpins that we have built
significant trafficking cases against, many of whom have been
extradited from foreign countries, or have been operating
within our district.
My fellow U.S. Attorneys use the mandatory minimum statutes
in a similar way. We all look, however, at the nature of the
crime problem in our district and the nature of the narcotics
problem in particular in our district. And the case that may
require a mandatory minimum in my district may not occur in
another part of the country. Another part of the country may
have a different type of narcotics problem and would have a
different population of defendants than you would find in
Brooklyn subject to the mandatory minimum statutes. But they
are still being utilized, Senator.
Senator Vitter. Mr. Chairman, just in closing, I just
observed that--I mean, that is taking all meaning out of the
word ``mandatory.'' It is replacing your and your colleagues'
judgment for the judgment of folks who wrote the law. And that
is what this whole discussion and debate is about. Thank you.
Chairman Grassley. [Off microphone.]
And for the witness, if there is nobody here and you want
to take a break, take a break.
Ms. Lynch. Thank you, sir.
Chairman Grassley. But as soon as somebody gets here, I
hope you can come back right away.
Senator Coons.
Senator Coons. Thank you, Chairman Grassley.
Ms. Lynch, congratulations on your historic nomination and
your very fine conduct in this hearing today.
The Attorney General of the United States is one of the
most important offices for which this Committee has oversight
responsibility and consent responsibility. The current Attorney
General Eric Holder has served in that office with distinction
under very trying circumstances.
For better or worse, the Attorney General often serves as a
lightning rod for those in this body with complaints about the
administration. And I think it takes special mettle to deal
with that kind of constant incoming fire while remaining
composed and focused on a constructive and forward-looking
agenda.
I am interested in hearing from you about how you plan to
carry forward progress on some of the issues that the
Department of Justice faces with respect to privacy,
collaboration with State and local law enforcement, IT
protection, and important civil rights issues such as
sentencing reform, voting rights, and racial profiling.
As successful as Attorney General Holder has been, there
remains important progress to make and just two years in this
administration to make it.
First, if I could, about State and local law enforcement,
given my previous experience, I am thrilled that someone with
your seasoned and senior experience in law enforcement has been
nominated for this position. I serve as Co-Chair, with Senator
Roy Blunt, of the Senate Law Enforcement Caucus. And the
Department of Justice plays a central role in supporting State
and local law enforcement. Can you just comment for me, if
confirmed, on the importance you would place on the partnership
between Federal, State, and local law enforcement, including
such programs as the bulletproof vest program, the justice
reinvestment initiative, the violence reduction network, which
is particularly important to me, and the information sharing?
And then second, Senator Flake asked about this previously,
but could you just talk about the victims of child abuse and
programs and comment on what experiences you have had with
child advocacy centers and how they function as one of the
partnership undertakings between Federal, State, and local law
enforcement?
Ms. Lynch. Certainly, Senator. With respect to the
important partnership between the Department of Justice and our
State and local law enforcement counterparts, it will be one of
my highest priorities to ensure that there is not only
collaboration and cooperation, but active and ongoing
discussion about the needs that we can help fulfill, but also,
Senator, what we can learn from our State and local
counterparts.
It has been my experience having had the benefit of frankly
learning from some of the best law enforcement agents and
police officers around that no one knows the crime problem like
the cop on the beat. No one really understands what is going on
in a community like the officer who walks those streets every
night and knows those residents and understands those issues.
Similarly, our Federal law enforcement agency partners have
outstanding background effort and ability to manage complex
cases. And when we combine those two, we have been able to
achieve tremendous results for victims of violent crime, of
terrorism, of cybercrime, along with the cases that you
mentioned involving vulnerable victims of child abuse. So
certainly I feel that there has to be a collaborative
relationship. But I want to essentially assure you that in my
view it would be one where we would not just provide assistance
in training and grants. That is very, very important. But we
would also listen and learn as well from our local law
enforcement partners.
Senator Coons. Well, thank you, that is both a good answer
and a great attitude and I look forward to working with you in
this area going forward.
The USA PATRIOT Act and in particular its Section 215
authority is often thought of as a spying program, which in
some ways it essentially is. But it also is and can be a tool
the DOJ and FBI routinely use in the course of domestic law
enforcement and its investigative missions. Does the DOJ use
Section 215 as a bulk collection tool? And could the Department
continue to make effective use of Section 215 if the enhanced
privacy protections, the limitations on bulk collection set
forth in the USA Freedom Act, were to be adopted?
Ms. Lynch. Well, Senator, Section 215, as I understand it,
is not a bulk collection tool in and of itself but a way in
which the Government using court authority can obtain
information already gathered that might be useful in ongoing
national security investigations.
But certainly I understand that as we work to protect our
country from terrorists who seek to attack us here and abroad,
that we have to be mindful of our civil liberties and the
privacy rights of anyone who may be impacted by our collection
procedures. And certainly I look forward to, as the renewal of
Section 215 comes up, I look forward to discussions with you
and the other Members of this Committee about the best way in
which to keep that useful tool and also reassure this body and
the American people that it is being used in the most effective
way.
Senator Coons. I am also concerned about IP--intellectual
property protections as we talked about previously, and trade
secrets.
Ms. Lynch. Yes.
Senator Coons. My understanding is several other Senators
have also asked about this issue. So I will try to be brief. I
am concerned about the huge transfer of wealth going on through
trade secret theft and the Federal crime under the Economic
Espionage Act is estimated to be responsible for up to $500
billion annually in terms of losses to the United States, yet
there is only one or two cases a month federally brought by
prosecutors.
As the U.S. Attorney for the Eastern District, what has
been your experience in investigating or prosecuting trade
secret theft? And would you be interested in working together
to strengthen the resources and strengthen the legal
authorities for protecting America and our inventions and
innovations and ensuring that we stem the tide of loss through
trade secret theft?
Ms. Lynch. Certainly, Senator. In my experience as the U.S.
Attorney for the Eastern District of New York, I do not believe
we have any specific indictments under the Trade Secrets Act.
We do, however, have a number of cases where we have
intercepted foreign actors trying to obtain U.S. information
and we have prosecuted them under other statutes. So we deal
with very, very similar issues.
I will note that these cases tend to be complex and long
term. They do require an investment of resources, the devotion
of time on the part of prosecutors, but also technological
resources on the part of our law enforcement agencies. So I
would look forward to, should I be confirmed, working with you
and this Committee to ensure that we have the appropriate
resources we need to handle these cases.
Senator Coons. Well, as a Member of the Appropriations
Subcommittee responsible, I look forward to working with you on
that. I think it is vital that we strengthen the protections
for America's inventions and inventors.
Let me last ask about criminal justice reform, an issue
that I think is front and center and important for our country
and for our justice system.
We have seen in a number of ways in the last year that our
criminal justice system is broken in terms of how it deals with
mass incarceration and its impact, in particular, on drug
offenders and on the African-American population of our
country.
It is not just a civil rights problem, but also a fiscal
problem and a social problem. And if you look at the numbers of
who is incarcerated and for how long and under what charges, I
think there is a significant inequality that needs to be
addressed.
I think we need legislation through this Committee and in
this body that will help rationalize mandatory, overly long
drug sentences for non-violent offenders.
Attorney General Holder took an important step forward 2
years ago when he issued revised guidance to the field
directing that prosecutors not automatically charge the most
serious mandatory minimum triggering levels of drug possession
against low-level, non-violent offenders. I wondered whether it
is your intention to keep in place Attorney General Holder's
2013 memorandum or whether you would look for other or
additional ways within the law, within the Constitution, to
promote the equal and just application of our criminal laws to
every person regardless of background, of sex, of gender, of
sexual orientation, race, religion and nationality.
Ms. Lynch. Senator, you touch on the important issue of
making sure that our criminal justice system protects the
American people, but does so in a way that is fair and
effective and also protects the individual rights of everyone
who has to pass through it.
It is the responsibility of a prosecutor not just to win
convictions, but to bring justice to every case, no matter what
the result.
Certainly, with respect to Smart on Crime, I have found it
similar to many ways in which my own district has had to manage
an ever-increasing problem of narcotics prosecutions of low-
level offenders and work with an ever-growing docket of larger
narcotics cases, also, and I found it to be a reasonable
approach to do so and look forward to continuing that
particular initiative.
But I also look forward to further discussions with you and
your colleagues on these issues as to how we can ensure that
our criminal justice system is effective and yet also protects
the people who have to go through it.
That is the dual responsibility of the prosecutor. It is
one that I have taken seriously all of my professional career
and, should I be confirmed as Attorney General, I look forward
to working with you as we explore that issue together.
Senator Coons. Thank you, Ms. Lynch. As he said at the
outset, Senator Leahy remarked that nearly a third of the
Department's budget at this point is dedicated to the Bureau of
Prisons.
I think we have a pressing civil rights issue nationally
for us in terms of our criminal justice system, but I have also
long been a supporter of law enforcement and believe that you
are uniquely positioned, qualified, and prepared to help us
balance these twin obligations of ensuring that our communities
are safer and stronger and ensuring that our justice system
delivers on justice.
Thank you.
Ms. Lynch. Thank you, Senator.
Senator Perdue [presiding]. U.S. Attorney, this is David
Perdue. We met the other day.
Ms. Lynch. Yes.
Senator Perdue. I am a Senator from Georgia.
Ms. Lynch. Yes. Thank you for your time.
Senator Perdue. I want to thank you for your perseverance
and patience with us today. I hope it was not anything that I
said that cleared the room for you.
[Laughter.]
Senator Perdue. I hope you are doing well.
Ms. Lynch. I hope it was not anything I said.
[Laughter.]
Senator Perdue. Well, thank you so much for, again, your
perseverance. I just want to join my colleagues and welcome you
before the Judiciary Committee and also to thank you for your
years of public service.
As we talked the other day, I am very impressed with your
career and want to thank you for upholding the law in your
career.
I congratulate you on this nomination. You spoke this
morning about your oath and the required commitment to the
Constitution. I applaud that. You have demonstrated that in
your career.
You were just talking about mandatory minimums, if I am
correct. I just have a quick question. Relative to a case that
you had in your jurisdiction recently, I want to ask about a
defendant who was convicted by your office in the late 1990s.
His name was Francois Holloway, I believe. I hope you remember
him.
There was a lot of press coverage on this case during your
current tenure as U.S. Attorney.
In 1995, Mr. Holloway rejected a 10-year plea and was
convicted after a trial on three counts of armed carjacking and
possessing a gun during a violent crime. Those offenses
subjected him to consecutive mandatory minimum sentences and he
received a total of, I think, 57 years.
In 2013, Judge Gleeson, the District Judge in Brooklyn who
sentenced Mr. Holloway, began what The New York Times called a
campaign on Mr. Holloway's behalf and wrote to you asking that
you consent to an order vacating two of Mr. Holloway's
convictions for armed carjacking.
No one argued that Holloway was innocent or that he was
wrongfully convicted or that his sentence was unlawful. No one
claimed that there was a problem with the trial. All of Mr.
Holloway's appeals were rejected.
The case went to the Supreme Court which upheld the
convictions. In fact, everyone agreed that the sentence he
received was lawful under Title 18 of the sentencing
guidelines.
Judge Gleeson did not agree with the sentence the law
required him to impose and was asking you to help him reduce
it.
In February 2013, to your credit, you refused to vacate the
carjacking convictions. You suggested to Judge Gleeson that Mr.
Holloway could contact the Office of the Pardon Attorney and
submit a petition for commutation of his sentence.
I personally think that that was the appropriate response.
I congratulate you on that. I think every prosecutor would have
responded that way.
In May of 2014, however, Judge Gleeson again urged you to
vacate two of Mr. Holloway's armed carjacking convictions. He
said your suggestion that Mr. Holloway seek clemency was not a
realistic avenue of relief because the fact that Holloway
committed crimes of violence will disqualify him.
The judge was definitely a passionate advocate for this
defendant. This time, however, you backed down and you
consented to the judge's order to vacate the carjacking
convictions.
I want to note that he was a violent offender; along with
an accomplice, stole three cars at gunpoint.
As the top law enforcement officer, I have a couple of
questions relative to that case and your prospective tenure as
Attorney General.
My first question is, what caused you to change your
earlier position in that case?
Ms. Lynch. Senator, with respect to the Holloway case, it
was a matter that had been of longstanding--it was a
longstanding case from the office. It did predate my tenure my
first time as U.S.--my second time, but not my first time as
U.S. Attorney, I should say. And it was a case in which it was
the defendant who had made a motion to allow the judge to
revisit his sentence.
So there was, in fact, a judicial proceeding before the
court at that time and the court wanted us to take a second
look at it. We did consider it numerous times.
Ultimately, the matter was before the court and while the
judge indicated he would like to have the opportunity to review
that, our view was that we had to look at the case consistent
with many of the initiatives that were being put in place now
by the Department of Justice certainly with respect to clemency
and with respect to how we look at offenders who have served a
significant time and whether or not they would be eligible for
that.
Of note to me as I reviewed the matter was that Mr.
Holloway was the second person in that carjacking incident and,
in fact, was not the individual with the gun, but was, of
course, legally liable for that. And while he received the
sentence of 57 years, shall we say the main actor in that
received a sentence shortly under 2 years.
So there was an incredible disparity in the sentence there.
But the real issue for us, was there a legal proceeding in
place, and there was, and essentially, did we have the ability
to let the judge review the sentence again by keeping it in the
court system, and we felt that we did.
But before we did that, it was important to me to consult
with every victim in that case and certainly we found all of
the victims but one after extensive research, all the victims
who also felt that the judge should have the opportunity to
reconsider Mr. Holloway's sentence, without a guarantee of what
that sentence would be.
Based on that information, based upon Mr. Holloway's record
in prison, based upon his role in the offense, we looked at how
we would have handled the case under current times. And, again,
given that there was a court proceeding, we were able to go to
court and tell the judge that we would not stand in the way of
him reviewing the sentence again, which Judge Gleeson did.
Mr. Holloway was re-sentenced. He then went into State
custody to finish a matter and so I do not know his current
status. But we did essentially allow the judge to take another
look at that and through the judicial process the judge imposed
a different sentence.
That sentence was still significant and it was still, I
would say, twice as long as what Mr. Holloway would have gotten
had he accepted a plea deal.
Senator Perdue. Thank you. As the Attorney General, you
will have great discretion, just as you did as District
Attorney, and the question I would--as illustrated by that
case, I think--is where do you draw the line? How do you see
this balance between the law and your personal position in a
case, your personal opinion in a case?
Ms. Lynch. Senator, I do not believe that my personal
opinion is the governing factor in a case, be it Mr. Holloway's
case or be it any case in which I would review, either as U.S.
Attorney now or should I be confirmed as Attorney General.
I will take a look at every case and I will commit to you
that I will review every matter brought to me with a full and
fair examination of the facts and an application of the law,
but also with a view towards, as in Mr. Holloway's case,
whether or not there is a judicial proceeding there and the
current status of that.
But we will take every effort and I will make every effort,
should I be confirmed, to always act consistent with the law.
Senator Perdue. Thank you. Just one last question in this
vein. There are probably hundreds, if not thousands of violent
offenders in our Federal custody who are serving sentences
based on consecutive mandatory minimums that you just spoke
about, like those imposed on Mr. Holloway.
If you are confirmed and during your tenure as Attorney
General it comes to your attention there are cases like Mr.
Holloway's, would you consent to early release of those
offenders?
Ms. Lynch. Senator, it would not be my place to consent to
an early release nor was it our place in the Eastern District
of New York in the Holloway case.
Our posture was to consent to allow the judge to revisit
the sentence and impose the sentence that, as a judicial
officer, he felt appropriate.
So as U.S. Attorney, I would not be making the decisions as
to whether someone should literally be released. Should I be
confirmed as Attorney General, I would not be making those
decisions either, except as people go through the clemency
process or the pardon office and those matters come under
review by the Department of Justice.
We would then apply our best judgment to the situation, but
ultimately, the ultimate decision on release would not be made,
I believe, by me.
Senator Perdue. Well, since I am the only one up here, I
guess I am the presiding officer.
[Laughter.]
Senator Perdue. My time is almost up, but I have just one
other question for you. I would like to move on to national
security, if I might.
And I will remind the Chairman that I did not go over on my
allotted time, just in case.
The DOJ announced last week that two Yemeni nationals
charged with conspiring to murder American citizens abroad and
providing material support to Al-Qaeda will be prosecuted by
your office in the Eastern District of New York.
I would like to ask you about your views on transferring
terrorists to U.S. soil who have been captured abroad.
Terrorists have been tried successfully in civilian courts
before, but I would like to know your opinion about what role
you think military tribunals play in handling terrorism cases.
Is there any role for military tribunals or should civilian
courts be used exclusively for these prosecutions, in your
opinion?
Ms. Lynch. Senator, thank you for that question. The case
that you mention is being handled by my office. And at the
outset, I would note that throughout the process of reviewing
that case and deciding how to best prosecute it and where to
appropriately venue it, we consulted extensively with the
Office of Military Commissions, as we do with all of the cases
involving national security defendants who may be brought to
U.S. shores and may be brought to the Eastern District of New
York.
Certainly, I would say at the outset that my position is if
terrorists threaten Americans here or abroad, they will face
American justice. We have done that successfully in the Eastern
District of New York and I look forward, should I be confirmed
as Attorney General, to continuing that strong practice,
utilizing all of the tools in our arsenal, and that includes
the military commission process.
Essentially, Senator, should I be confirmed as Attorney
General, I look forward to working with the military and the
other executive branch divisions in Government to make the best
determination about where each case should be brought.
Should that determination be an Article III Court, I
anticipate that the receiving U.S. Attorney's Office would
handle it with the skill and dedication that my prosecutors do
every day.
Similarly, should it be a military commission, they will
also handle it with the skill and dedication that they have
also shown.
I have been honored to have hosted General Martins on more
than one occasion in my office and have a positive relationship
with him and, should I be confirmed as Attorney General, look
forward to continuing that relationship with him and all of our
partners in the war on terror.
Senator Perdue. Well, I would like to thank you for your
patience, perseverance, professionalism, and your graciousness
today. You have run out of Senators almost.
Ms. Lynch. I seem to have.
[Laughter.]
Senator Perdue. In the absence of our Chair, there is only
one other Senator I think that is potentially available for
questioning. I know that they are on the floor right now
voting. I ran over to get a few questions in.
So what I would suggest is that we take a 10-minute recess,
if you are amenable, and we will find from the Chairman if
Senator Tillis is the last remaining person to ask questions,
and we will see where we go from there.
So I think we will stand in recess for 10 minutes, and
thank you again for your graciousness and perseverance today.
Ms. Lynch. Thank you, Senator.
Senator Perdue. Thank you.
[Whereupon, at 2:55 p.m. the Committee was recessed.]
[Whereupon, at 3:13 p.m., the Committee reconvened.]
Chairman Grassley. Just as soon as the room quiets, I am
going to recognize Senator Tillis. I think it is quiet enough.
Senator Tillis, would you proceed?
Senator Tillis. Thank you, Mr. Chair.
Ms. Lynch, congratulations. It is quite an honor to be in
the place that you are today. I want to compliment you on your
distinguished career.
I have also noted over the course of your testimony just
how much pride is in the eyes of your friends and supporters
here. So, congratulations.
I had a question for you and it stems from--I also want to
thank you for dealing with last week when we had to move the
venue and the time around for the meeting. I appreciate your
graciousness and spending some time with me last week.
And I really want to maybe start where we left off with
some of the discussions and I think that Senator Flake and
Senator Lee and Senator Schumer have also echoed the concerns
about the limited resources and how you would prioritize things
within your future prospective new responsibilities.
I guess something that strikes home for me has to do with
certain elections laws. In North Carolina--I do not know how
familiar you are with some of the elections laws that have been
passed over the past couple of years, but in the context of at
least one case that was brought against the State of North
Carolina by Mr. Holder, where the law was--more or less, the
foundation of that law was the Indiana law which has been
upheld by the Supreme Court 6-3.
Given the limited resources within the AG's Office and the
Department of Justice, what are your thoughts on pursuing laws
that are likely to end up in the same state, particularly laws
like North Carolina that went much further than the Indiana law
that was upheld?
Ms. Lynch. Certainly, sir. I believe that the right to vote
obviously is the cornerstone of our democracy.
Senator Tillis. As do I.
Ms. Lynch. And certainly I think that States obviously have
an interest in protecting that right to vote, also, as well as
regulating it and making it safe and free and open for
everyone, and I believe many States are acting with exactly
that view in mind.
Certainly with respect to the North Carolina statute and
case, I know that it is under litigation now. I believe there
will be a trial at some point in time. I am not familiar with
the status of the case now.
So I cannot comment on that specific case or that specific
statute, but what I can say is that with respect to how the
Department will look at voting rights issues is with a view
toward protecting the right to vote and hopefully working with
the States to ensure that all the interests are met.
Certainly all voter ID laws are not problematic. As you
have noted, the Court has outlined situations in which they are
useful and serve a fundamentally important purpose, and the
Department has, under the previously utilized doctrine of
preclearance, actually approved voter ID laws.
So I do not think that we can at this point, without
knowing how a case will be presented, say which way the
Department will go in viewing it. But given the fundamental
importance of the right to vote, should an issue be raised?
It is something that the Department of Justice has an
obligation to review and consider whether or not it should get
involved.
Senator Tillis. In the example of the law that was passed
by North Carolina and the case that was brought against North
Carolina--in fact, I was named in the case because at the time
I was Speaker of the House. I am just curious how, as you go
forward and you are dealing with the challenges in this office
of, as I believe Senator Schumer said, trying to focus your
resources on the bad actors, the hardened criminals, the
difficult challenges that the Department faces, in a case that
has some 10 attorneys on it focused on--no less than 10, I
believe--focused on that, I would hope that there would be some
focus on: Is that the best and highest use if, given the merits
of the case and other laws that have gone to the Supreme Court,
that it is likely to end in a situation where it is going to
rule in favor of the State and at the expense of those
resources that could be used for other purposes.
What is your thought on going into this role and taking a
look at cases like that and maybe determining priorities based
on the likely outcome? Have you given any thought to that?
Ms. Lynch. Certainly, Senator, as we review a case, both
throughout my career as a prosecutor and as U.S. Attorney, we
always look to the possibility of how a court will view a
particular matter.
But first and foremost, whether the case involves voting or
any other important right, is the issue of what is the evidence
that is presented and what is the relevant law, what is the
interest being protected. And if it relates to a core function
of the Department of Justice, such as protecting the rights of
citizens, keeping our citizens safe, or protecting the right to
vote, it is a matter that we would be obligated to look into.
Whether or not a matter would result in litigation would,
of course, depend upon a variety of factors, which are not in
front of me today, about the nature of the law and how it was
written and essentially whether it comported with those laws
that were previously approved both by the Department and by
courts.
Certainly, with respect to the North Carolina case, I
believe the matter is in litigation. It is not something that I
am intimately familiar with. I have not been involved in the
management of that case to date. I look forward to learning
more about it, should I be confirmed, and I believe the matter
will proceed to court and we will await the results there.
Senator Tillis. Ms. Lynch, I do have a question just based
on the final comment that you made there with respect to the
case, because it gives me some sense of whether or not we can
look at this objectively and make sure that we are using the
resources of DOJ in the most effective way.
I think in January of 2014, you said that people try and
take over the Statehouse and reverse the goals that have been
made in voting in this country. I presume since I was the
person that took over the Statehouse, I would be included by
reference.
And you go on to say, ``And in my home State of North
Carolina, has brought lawsuits against those voting rights
changes to seek to limit our ability to stand up and exercise
our rights as citizens.''
So in my limited time--I know that I will have another
opportunity to ask questions--I had some sense that maybe
perhaps you were somewhat familiar with what had been done in
North Carolina. And again, with the backdrop of other laws that
seem to have disposed of whether or not what North Carolina has
done, I took great care to make sure that we made heroic
efforts to preserve everyone's right to vote.
I may come back around and ask you a few more questions to
this effect, but I want to move on to something that is
completely out of there and it has to do with something that is
very important to me. One of the reasons I ran was on veterans'
issues and on taking care of those who have taken care of us.
One question that I have--I hope that you will look at and
perhaps consider in my follow-up questions giving me a
response, if you have time to speak with others, but the Public
Safety Officers' Benefits program is a problem.
We have people who are making claims there who are not
getting their claims resolved on a timely basis and I have
heard a number of reports where--and this is in the event of a
death--that I would like to think that we would place a
priority on resolving these claims and clearing the backlog.
If you have an opportunity, and you will not have a lot
because you will be sitting right there, but if I could get
some sense of what that will be as a priority, if you are
confirmed as Attorney General.
It is something personally important to me. I think it is
the least we can do for the families.
The one other thing I will tell you that I think we are
going to find a lot of common ground, should you be confirmed,
is on the issue of cybersecurity. I consider this to be
something that the Attorney General, all law enforcement, all
prosecutorial districts across this Nation need the tools to
make sure that we get control of this quickly.
I would like some idea, based on your knowledge of how we
are currently doing, if you have any sense of where you would
go as a priority, should you be confirmed.
Ms. Lynch. Certainly, Senator. With respect to
cybersecurity, there are a number of areas which would be my
focus, should I become confirmed as Attorney General.
Within our law enforcement community, I would work to
ensure that they have the technological resources needed to
stay ahead of this threat both from a human resources
perspective, as well as computers and the like.
With respect to the U.S. Attorney community and the
Department of Justice community, I would make sure that our
prosecutors receive the appropriate training to manage this
important issue.
As I have seen in my practice as U.S. Attorney, cyberissues
are now in every area of practice that we have. That will
continue to be the case and I am sure that, should I become
confirmed as Attorney General, I will see that throughout the
Department of Justice.
So I will work to strengthen the resources in the Criminal
Division and the National Security Division that deal with
these cases.
But, Senator, another thing that I think is very important
as we combat cyberattacks and deal with cybersecurity is the
relationship between Government and private industry.
I believe that there is a very, very important
collaborative relationship to be built there. It is being
built. I have seen it. I have participated in conferences with
both financial sector parties, as well as pharmaceutical
industry parties on this important issue and we have had very,
very good, positive, collaborative results involving the
reporting of cyberattacks, as well as law enforcement's ability
to work with private industry to gain knowledge of their
systems to prevent attacks, as well.
So I think we also--should I become Attorney General, one
of my priorities would be strengthening this connection between
Government and private industry, as well.
Senator Tillis. Thank you very much.
Senator Schumer mentioned earlier--I meant to mention in my
opening comments, that we have a number of very capable
basketball teams in North Carolina beyond the Blue Devils and
the Tar Heels, many of whom I think this year could beat the
Knicks.
[Laughter.]
Ms. Lynch. Well, Senator, as an early Carolina fan, I have
to say that that is likely true.
[Laughter.]
Chairman Grassley. I would like to have the various staff
of both Republican and Democrat give us some inventory of the
number of people that want a second round, and the second round
will be 8 minutes. I am going to take about 5 minutes of that 8
minutes and then go vote and I will have to recess if nobody
else is back here. So you can do what you want to do during
that period of time.
Ms. Lynch. Thank you, Senator.
Chairman Grassley. The first question was going to be a
question. Now it is just going to be a statement. So I would
appreciate it if you would listen to my point of view.
You suggested earlier that prosecutorial discretion allows
the administration to prioritize removal of criminal aliens
from the country. Yet, in fiscal year 2013, the administration
released from its custody 36,000 aliens who had been convicted
of a crime instead of removing them. According to the
Department of Homeland Security, 1,000 of these aliens have
already been convicted of another crime since their release.
Just today I received a 38-page document from the
Department of Homeland Security that lists each of the offenses
underlying those 1,000 post-release convictions, including
things like assault with a deadly weapon, terrorist threats,
failure to register as a sex offender, lewd acts with child
under 14, aggravated assaults, robbery, hit and run, criminal
street gang, rape spouse by force, child cruelty, possible
injury, death.
So I am going to put this in the record.
[The information appears as a submission for the record.]
Chairman Grassley. So my statement is this for you to
consider. You do not have to respond to it now. I could go on,
but for the sake of time, that copy is in the record, so
anybody can review it.
This suggests the administration is not prioritizing the
removal of criminal aliens very well. So 1,000 out of 36,000
have committed further crimes, and, who knows, maybe others.
So, if confirmed, my statement to you would be simply: You
need to take a look at that policy.
I had two points in my second question. But Senator Tillis
asked about the public safety officers' benefits. So he has
heard the same thing that I have heard from my constituents. In
Iowa alone, there are three families who have been waiting for
over three years, and another that has been waiting since 2013
to receive benefits.
Two weeks ago, I wrote the Department about the delays and
requested a reply by this Friday. Obviously, you will not be in
a position that you can request that or answer that by Friday,
but I hope to get an answer because way back in 2004 the
Attorney General at that time made a decision that these claims
should be processed within 90 days of receiving all the
necessary information. So then I would go to the second one,
which is just--well, let me go to it and then I will ask you
the question.
There is a Brandon Ellingson of Iowa. You would not know
about this because it is an Iowa person, and a college student,
who drowned while handcuffed in the custody of Missouri State
troopers after they arrested him on Lake of the Ozarks, May
2014.
I have discussed the case with Attorney General Holder, had
a couple of telephone conversations. I am very satisfied with
his personally looking at it. It has gotten his personal
attention. He has assured me that the Department will look into
the unanswered questions in this case carefully to see if there
are any Federal laws involved.
So all I am asking you to do, if and when you are approved,
will you be able to talk to Attorney General Holder and if he
does not make a decision by then, that you would personally
examine Brandon Ellingson's case?
Ms. Lynch. I will certainly continue that resolve, Senator.
Chairman Grassley. Thank you. Now, I am going to go and I
will recess for a while, then I will come back and finish my
second round. Thank you.
Ms. Lynch. Thank you, Senator.
[Whereupon, at 3:30 p.m., the Committee was recessed.]
[Whereupon, at 3:33 p.m., the Committee reconvened.]
Senator Sessions [presiding]. Thank you all. Sorry that we
are in this unfortunate circumstance of having our hearing
interrupted rather repeatedly. It is not the best way to do
business. Ms. Lynch, I am sorry that that has occurred. We have
been working hard in the Senate. Thursday, more votes were cast
in one day than in the entire year last year.
Senator McConnell promised that Members would be able to
offer votes, so there are 18 more, I think, going to be cast
today. Maybe that will come close to bringing an end to the
legislation that is out there.
But I think it is part of our heritage as a Congress to
have individual Senators be able to offer an amendment and then
vote on it. So I think it is the right thing. This hearing, I
wish, could have been conducted more respectfully, so I am
sorry about that.
I have to have a clear answer to this question, Ms. Lynch:
Do you believe the Executive action announced by President
Obama on November 20 is legal and constitutional, just yes or
no?
Ms. Lynch. As I have read the opinion, I do believe it is,
Senator.
Senator Sessions. Well, this is very troubling to me
because it goes way beyond prosecutorial discretion, I think.
It goes clearly to allowing someone to work who is unlawfully
in America, to take jobs that the statutes say they are not
entitled to take. It gives people the right to participate in
Social Security and gives them a number and is part of their
work authorization and to participate in other actions, like
Medicare.
I believe this is a fundamental question. It has been a
part of the national debate and the American people are very
concerned about it. The polling number is very high. They do
not believe--in fact, the American people are shocked that we
are seeing this action from the President after Congress was
asked to pass legislation to this effect and Congress rejected
it.
Do you believe that the President has a right to take
action in violation of law just because Congress refused to
pass a law he asked them to pass?
Ms. Lynch. I believe, Senator, that the President is as
limited by law as every citizen and it is certainly the
responsibility of both the President and the Department of
Justice to follow the laws as passed by this body.
With respect to other actions the President may take,
depending upon the action taken, there may be a basis for
certain actions or there may not be a basis for legal actions.
And that is where I believe that the Department of Justice must
apply its own independent, thorough legal analysis and, as with
this particular opinion, ascertain whether or not there was a
legal framework for some action and, as I saw in the opinion,
indicate that there was not a legal framework for some of the
action that was requested and decline to provide a legal basis
for that.
Senator Sessions. Well, what it did approve, I think,
clearly goes beyond the law. Congress authorized--has passed
certain laws that control entry into the United States. We
expect you as the chief law enforcement officer, the President,
who takes an oath to see that laws are faithfully executed, to
execute those. I have read the opinion and it suggests that
``faithfully execute'' means you use your resources as best you
have to carry out the intent of Congress. Is that
fundamentally----
Ms. Lynch. Certainly, sir.
Senator Sessions. So it goes beyond just enforcing every
single law. If you do not have the resources, you should try to
use the resources you have to effectively carry out the law.
Ms. Lynch. Certainly, sir.
Senator Sessions. Well, what I would contend is absolutely
plain. I would contend that you have gone far beyond that. You
have actually created a new system of law, a new system of
qualification, a new standard for who can work in America, a
new standard for who can have Social Security and Medicare.
This is a fundamental matter of great importance. I have just
got to tell you, I am worried about it.
In the Wall Street Journal, Mr. Rivkin, who served two
White House counsels, and law Professor Foley concluded their
piece this way: ``The OLC,'' that is the Office of Legal
Counsel who reports to Mr. Holder and would report to you, that
you are now affirming, rendered a valid opinion, which you
associate yourself with. This is what they said: ``The OLC's
memo endorses a view of presidential power that has never been
advanced by even the boldest presidential advocates. If this
view holds, future Presidents can unilaterally gut tax,
environmental, labor or securities laws by enforcing only those
portions with which they agree. This is a dangerous precedent
that cannot be allowed to stand.''
Frankly, the Attorney General of the United States should
have told President Obama that, urged him to back off.
Presidents get headstrong. He did not do it, and now you are
here defending this. I believe it is indefensible.
So, I am worried. I just want to tell you, that is a big,
big problem with me.
Now, do you believe and do you support legalization of
marijuana?
Ms. Lynch. Senator, I do not.
Senator Sessions. I know the head of the DEA, who is a
little bit out of step with some in the administration, I
think, agreed with you on that. The President said this in
January of last year: ``I smoked pot as a kid and I view it as
a bad habit and a vice, not very different from the cigarettes
I smoked as a young person up through a big chunk of my adult
life. I don't think it is more dangerous than alcohol.'' Do you
agree with that?
Ms. Lynch. Well, Senator, I certainly do not hold that view
and do not agree with that view of marijuana as a substance. I
certainly think that the President was speaking from his
personal experience and personal opinion, neither of which I am
able to share. But I can tell you that not only do I not
support legalization of marijuana, it is not the position of
the Department of Justice currently to support the
legalization, nor would it be the position should I become
confirmed as Attorney General.
Senator Sessions. I do think there has been a lot of
silence there. I know the head of the DEA did push back and
testified here pretty aggressively, but I think she felt like
she was out of step within the administration. I hope that you
will cease to be silent because if the law enforcement officers
do not do this, I do not know who will. In the past, Attorneys
Generals and other Government officials have spoken out and, I
think, kept bad decisions from being made.
It is good to see Senator Leahy here. How many Attorneys
General have you presided over? More than a few. How about a
rough number?
Senator Leahy. Since President Ford's--go back to there.
Not presided, but been part of it.
Senator Sessions. Well, it has been a pleasure to work with
you on this Committee over a number of years.
Ms. Lynch, this is a big issue, this immigration, because
it represents, in my view, a presidential brute decision that
was rejected in Congress. I do not believe, and totally reject
the idea that if Congress fails to act, then the President is
entitled to act, any more than I think if Congress fails to
act, judges can just act. Because Congress, by not agreeing to
pass a certain piece of legislation, has acted. It has made a
decision. That is where we are. There are still opportunities
and still legislation moving that will be considered in the
years to come on all questions relating to immigration. There
will be a lot of debate and that kind of thing. But under our
system, it is not justified, in my view.
Just one more thing I would say to you. I do hear a lot of
talk, a lot of loss of confidence in the Justice Department, a
belief from professionals, prosecutors, and citizens that there
is too much politics and not enough law.
I do think, if you achieve this office, you need to know
that. I shared that with you, I think, in our meeting. You need
to make it a central part of what you do to reverse that trend
and restore confidence that this Attorney General's Office
serves the law and the people objectively and not a political
agenda.
Thank you. I will recognize Senator Leahy.
Senator Leahy. I will be brief. But when I was a young law
student I was invited in to the Attorney General's Office. He
was recruiting me to come to the Department of Justice. I asked
the Attorney General how independent they were.
I said, for example, suppose you had a prosecution that you
knew was justified, but the White House, you know, might take a
different view? He said, I would have to prosecute because that
is my job. That Attorney General was Robert Kennedy. He later
prosecuted a man who was critical to his brother getting
elected President.
I contrast that to another Attorney General in the last
administration who testified here that he's a member of the
President's staff, so therefore in effect took orders from the
White House. I kind of exploded on that. I said it is not the
Secretary of Justice, it is the Attorney General of the United
States--not for the Republicans, not for the Democrats, but the
United States.
I think from what you told us, you would be that kind of an
independent Attorney General. I also heard somebody criticize
here this morning on the prosecution of Ted Stevens. I happen
to feel he should not have been prosecuted. They neglected to
mention that the conviction was during the last administration
and it was Attorney General Holder who got it removed from
Senator Stevens.
We are concerned in Vermont about the increase of opiates
and heroin. I assume from things you said before that you would
continue to work with communities, as the Justice Department
does now. I mean, communities, not just at the Federal level,
but the State and local level, to combat this problem that is
facing so many parts of the United States, not just my own
State of Vermont.
Ms. Lynch. Senator, should I be confirmed as Attorney
General, certainly the issue of the growing numbers and amount
of heroin abuse is a grave concern to me. I have seen it happen
in my own district. In talking with my colleagues in the U.S.
Attorney community across the country, they have expressed
similar concerns.
As you point out, however, we are most effective when we
work in partnership with our State and local law enforcement
partners, and often when dealing with the issue of opioid
addictions and working with our public health community as
well, to find treatment for the offenders and possibly break
the cycle of addiction.
Many of my colleagues have in fact been engaged in efforts
of exactly that type that have been very effective in lowering
the addiction rates and, in fact, lowering the crime rate
associated with heroin abuse.
These are efforts that we can study and that we can share.
We have to have a strong law enforcement response also but we
must involve State and local counterparts. We must involve
families, we must involve treatment centers as well in dealing
with this seemingly intractable problem.
Senator Leahy. Thank you. I would, if there is no
objection, reserve the 4 minutes and 46 seconds left in my
round of questions because, as everybody knows, the roll call
has started.
Senator Sessions. That will be fine. We will save that 4
minutes and 46 seconds and we will stand in recess until
somebody returns.
Ms. Lynch. Thank you, sir.
[Whereupon, at 3:47 p.m. the Committee was recessed.]
[Whereupon, at 3:54 p.m., the Committee reconvened.]
Senator Schumer [presiding]. The hearing will come to
order.
First, I would like to thank my Republican colleagues for
the courtesy here. We are all going back and forth, voting. It
would be rare to have the third-ranking Democrat chair the
Committee, but we are all going and voting and I appreciate
that. I will try to be as quick as I can because of my need to
vote.
So first, Ms. Lynch, I read this morning that--on the
news--you have something special from your late brother, who
was a Navy SEAL, with you today. Tell us a little about that.
Ms. Lynch. Well, Senator, I have with me my late brother's
trident, the insignia of the Navy SEAL. It is something that I
usually have with me in my office, but I often bring with me
when I come down to the Department of Justice and I had it with
me here today. It ensures that I have both of my brothers with
me here today.
Senator Schumer. Yes. Well, having read and seen and met
the SEALs, it is an amazingly difficult thing to achieve.
Then like you, in a different way, he was defending our
country in one of the best ways you can, so we really
appreciate that and appreciate your thoughts about your
brother. Okay.
Now, I would like to go to the next area. This morning,
both you and Senator Sessions and I talked about a topic, it
seems like a long time ago this morning. So I would like to
just talk a little more about that.
Absent appropriate authorization from DHS, I just want to
ask, is there any Federal right for an immigrant who is not in
lawful status to work?
Ms. Lynch. No, there is not, to my knowledge.
Senator Schumer. Okay. Thanks. I think earlier you said you
had a preference that all individuals here in the United States
work, regardless of status. I think a lot of us would share
that preference. I think this is confusing for people because
there literally are nearly 100 categories of statuses, of
stati, whatever the right word is----
[Laughter].
Senator Schumer. They did not teach that at James Madison
High School--for people because you have got to count green
cards, non-immigrant visas, spouses of individuals on certain
visas, parole, asylum, applicants for green cards, non-
immigrant visas, immigration visas. Many people who are not
U.S. citizens have a legal right to work. For example, green
card holders' work visas. We admit people to work on a work
visa.
So let me ask you, just what did you mean when you said you
think everyone should work regardless of status?
Ms. Lynch. Well, certainly, Senator, when I made that
comment I was really making more of a personal observation.
I must admit, I have to be careful here because my father
is here and my mother is watching. But certainly in my family,
as we grew up, we were all expected to try and find employment
as part of becoming a responsible adult and as part of becoming
a responsible member of society. So I was making a personal
observation based on the work ethic that has been passed down
to me by my family, not a legal observation.
Senator Schumer. Right. So again, to reiterate, you do not
believe that there is a Federal right for an immigrant who is
not lawful here to work?
Ms. Lynch. No, sir. Not at all.
Senator Schumer. Okay. I just wanted to clarify that. I
wish Senator Sessions were here. He was not certain about what
you said. I think now the record is 100 percent clear. Okay.
One final question. This is about a myth--another of the
myths that are out there--a generally deferred action policy
eliminates case-by-case consideration and is therefore illegal.
That is what some people are saying.
Deferred action actually, like many Federal policies, sets
eligibility criteria but then requires case-by-case
consideration. So only a limited set of individuals, those with
deep ties to this country and without a criminal record, can
apply for deferred action under the President's proposal.
But that is not all. After they register, pay a fee,
undergo criminal background and national security checks, the
President requires DHS officers to scrutinize every single case
individually to make absolutely sure the person is not someone
we should prioritize for deportation.
So I have two questions in regard to that. Doesn't it make
eminent sense for a program to set out guidelines at the front
end and then still require careful individual consideration at
the back end before anyone is approved?
Ms. Lynch. Certainly, sir. That would make eminent sense
and would provide for a careful review of every applicant.
Senator Schumer. And I believe that is what the President
is intending to do. We have not seen all the regulations yet,
but that seems to me what he said.
Couldn't one argue that other discretionary guidelines and
programs like Federal contract bids take a similar approach? We
lay out broad criteria, but then they review each contract,
contract-by-contract.
Ms. Lynch. Contract-by-contract and with vigorous
application and screening.
Senator Schumer. Right. Okay. I want to thank, again, my
colleagues for deferring. I will pass not only the questioning,
but the gavel, to Senator Graham.
Senator Graham [presiding]. A dream come true.
[Laughter].
Senator Graham. It will only last for eight minutes, so I
am going to enjoy it while I can.
Your brother was a Navy SEAL. That has got to be--that is a
major accomplishment. It is probably the hardest thing to be in
all the military, so I know your family is proud of him and
what you have accomplished.
Do you agree with me that one of the worst possible
outcomes is for the United States to release somebody from
Guantanamo Bay to go back to the fight to kill an American
SEAL, or anyone else? That we should really make sure we do not
do that unless we absolutely have to?
Ms. Lynch. I certainly think that anyone coming from either
Guantanamo Bay or any of our facilities, we should take
appropriate steps to make certain they do not place Americans
in harm's way.
Senator Graham. I could not agree with you more.
We have got a 30 percent release rate, and from a SEAL
point of view, they are usually the guys capturing these folks.
It has got to be bad for morale if one of the guys that you
captured wind up killing your buddy down the road. So I really
do believe that the policy we have at Guantanamo Bay needs to
be reviewed, and reviewed closely for not just all SEALs, but
for all who have been fighting.
Now, about being at war. Do you believe we are at war?
Ms. Lynch. We are at war, Senator.
Senator Graham. Okay. Now, I have been a military lawyer
for 30-something years. You have been a prosecutor for a very
long time. I believe in an all-of-the-above approach, that
military commissions have a place in this war and Article III
Courts have a place in this war. Do you agree with that?
Ms. Lynch. I do, Senator. I do agree with that, by
principle.
Senator Graham. Now, under military law the main objective
when you capture an enemy combatant is to gather intelligence,
it is not prosecution. Does that make sense to you?
Ms. Lynch. That is certainly one of the important
objectives under military law. I would add, however, though,
that with respect to the Article III prosecutions that I have
been involved in through my office, a primary goal is also to
obtain cooperation, and thereby valuable intelligence.
Senator Graham. Here is what I would suggest to you, ma'am.
This is the Army Field Manual. It is over 300 pages. I helped
write the Detainee Treatment Act with Senator McCain to make
sure that we did not torture people. I believe waterboarding is
torture and it is illegal. But in this Army Field Manual, which
sets the parameters for detaining people and interrogating
them, not one time does it suggest that you should read the
enemy combatant their Miranda rights. Do you know why that
would be?
Ms. Lynch. Well, I certainly think the Army Field Manual
has proven to be a very effective way of handling high-target
detainees.
Senator Graham. All I would suggest, ma'am, that anybody in
the military would reject out of hand that it is a good way to
gather intelligence by providing the enemy combatant a lawyer.
In World War II, even though Miranda did not exist, and all the
wars since then, no one has ever suggested to our military that
once you capture an enemy combatant, that you give them a
lawyer as a better way to gather intelligence versus holding
them under the law of war.
So here is my recommendation to you. We have caught several
high-value targets in the last year or two. We have read them
their Miranda rights within days or hours of capture. You will
never convince me criminalizing the war is the best way to
gather intelligence.
I want to talk to you about this. I want to have more
flexibility than we have with the current system. If we do not
hold some of these people under the law of war for questioning
as an enemy combatant, then we are going to lose the ability to
gather intelligence. The only way you can protect this Nation
is to interrupt the next attack because the people who are
fighting do not mind being killed.
Can an American citizen be held as an enemy combatant?
Ms. Lynch. Senator, with respect to an American citizen, I
believe there would be a prohibition against holding them,
against us holding them, as an enemy combatant.
Senator Graham. Ma'am, that is not true. We have held
several American citizens for a multiple period of years as
enemy combatants: Hamdi v. Rumsfeld. Before I vote on your
nomination, I want you to read Hamdi v. Rumsfeld and Ex Parte
Quirin, where American citizens, collaborating with the Nazis,
landed at Long Island and tried to attack the country. They
were tried by a military commission. Military commission trials
are not available to American citizens. They have to go under
Article III. But we have under our law in Hamdi v. Rumsfeld the
idea there is no bar to this Nation holding one of its own
citizens as an enemy combatant.
What recommendation--I want you to read those two cases and
get back with me and see if that changes your mind.
What recommendation would you give an American citizen when
it comes to joining ISOL or Al-Qaeda? What would you tell them
to do?
Ms. Lynch. Senator, with respect to an American citizen, or
anyone who seeks my opinion on joining ISOL or Al-Qaeda, my
recommendation would be, do not do it or you will face American
justice.
Senator Graham. Well, not so much you will face American
justice. You are going to get killed if we can find you.
Ms. Lynch. You may get killed before we can find you.
Senator Graham. That is right. But if we find you, we can
kill you. Anwar al-Awlaki. Do you know that guy?
Ms. Lynch. Yes. He was----
Senator Graham. Do you think the President acted within his
constitutional authority to use a drone against him?
Ms. Lynch. So with respect to Anwar al-Awlaki, I am
familiar with him as he has figured in the radicalization of
some of the defendants who have come before the Eastern
District of New York, as well as a very active Al-Qaeda leader.
I am not familiar with the ways in which the decision was made
to use the drones against him.
Senator Graham. Let me say--let me tell you how it was
made. There is an executive process where there are executive
agencies that evaluate the threat that every individual
presents to the country. In the case of an American citizen,
there are very strict criteria. But if they meet those
criteria, the President can order the use of lethal force. I
promise you, in every war we have been in American citizens for
some reason have decided to side with the enemy and they have
been viewed as an enemy combatant, not a common criminal.
The President of the United States, I think correctly,
authorized a drone attack against Anwar al-Awlaki, who was the
head of Al-Qaeda in Yemen. Would you want to look at that
before you give me the answer? Are you comfortable with that
process? Would you like to look at that process and get back to
me?
Ms. Lynch. Well, Senator, I am comfortable with the process
as you describe it. What I think it illustrates, however, is
the need to--as you put so eloquently at the beginning of our
discussion--use all of the tools available to combat this war.
Senator Graham. And I just want to make sure that, as the
Attorney General of the United States, you understand one of
the tools to combat this war is to use lethal force against an
American citizen who our Government has determined to be part
of the enemy force.
The second tool is to hold an American citizen, or a non-
citizen, under the law of war for the purposes of intelligence
gathering. Those are two tools in our toolbox that have been
used for decades. I want to make sure, as Attorney General, you
recognize those tools are available to us in this war as we go
forward. Read these cases and get back with me, if you could.
Ms. Lynch. Absolutely, Senator.
Senator Graham. Thank you very much.
Online gaming. Are you familiar with the decision by the
Office of Legal Counsel in 2011 to basically say that the
prohibition in the Wire Act was limited to sporting events and
contests?
Ms. Lynch. I am generally familiar with the results of
that.
Senator Graham. Do you agree with that decision?
Ms. Lynch. I have not read that decision, Senator, so I am
not able to really analyze it for you. Certainly I think it was
one interpretation of the Wire Act that was considered in the
past.
Senator Graham. Would you agree with me that one of the
best ways for a terrorist organization or criminal enterprise
to be able to enrich themselves is to have online gaming that
would be very hard to regulate?
Ms. Lynch. I think certainly that what we have seen with
respect to those who provide material support and financing to
terrorist organizations, they will use any means to finance
those organizations.
Senator Graham. I am going to send you some information
from law enforcement officers and other people who have been
involved in this fight and their concern about where online
gaming is going under this interpretation. Thank you very much.
From my point of view you have acquitted yourself very well.
But I do appreciate if you would look and be able to answer my
questions about enemy combatant status for American citizens
and the use of lethal force.
Ms. Lynch. Thank you, Senator.
Senator Graham. Thank you very, very much.
And now I will turn it over to Senator Lee. You are now the
Chair.
Senator Lee [presiding]. Thank you, Mr. Chairman.
Thank you for staying with us, and even through the hectic
vote schedule.
I would like to go back to civil forfeiture, if that is all
right, which is the topic we were discussing earlier before I
left for the last vote.
First of all, I want to get back to the question I asked at
the outset. Do you think it is fair, is it fundamentally just,
that someone can have their property taken from them by the
Government without any evidence that they have committed
wrongdoing, based solely on a showing by the Government based
on a probable cause standard that their property might have
been involved in the commission of a crime, perhaps without
their own knowledge, their own consent, their own awareness on
any level? Do you think that is fair?
Ms. Lynch. Senator, I think that we have a very robust
asset forfeiture program, both criminal and civil. With respect
to civil forfeiture, I have looked at the program in general.
Again, the Department is conducting a review of the forfeiture
program.
With respect to civil forfeiture, there are legal
safeguards at every step of the process, certainly as
instituted or implemented by my office and my understanding by
my U.S. Attorney colleagues, so there will be judicial review
before there can be attachment or seizure, for example, as well
as an opportunity to be heard. But that standard must be met
before the seizure warrant can be issued.
Senator Lee. I understand. I understand. A lot of Americans
do not believe that that is fundamentally fair.
Again, that is why in many States there have been laws
enacted that restrict the use of civil forfeiture under those
circumstances and impose additional requirements, which is why
I raised the concern about the process by which the Department
of Justice has, on occasion in the past, used something known
as adoption, whereby they will take something that could not be
forfeited under State law in State court and they will utilize
the resources of the U.S. Department of Justice to assist in
the forfeiture.
The U.S. Department of Justice retains 20 percent and then
yields back 80 percent to the State and local law enforcement
agencies. This is troubling. You appeared to be aware when I
asked you about this. You appeared to be aware about an order
that Attorney General Holder issued just about a week and a
half or two weeks ago--I believe it was on January 16--
restricting that. So I assume you are familiar with that order?
Ms. Lynch. There was an order or policy directive from the
Attorney General to the field, and as U.S. Attorney I did
receive that, and it essentially ends the adoption program. As
you point out, Senator, a number of States now do have a robust
asset forfeiture program on their own.
When the Federal program was being instituted, at least the
research shows, many States did not have this program.
So a lot of the local law enforcement agencies that have
been used in the adoption program initially did not have a
venue to effectuate legal seizure of property that had been
used in a crime. The adoption program began several years ago,
primarily as a response to that. That has changed. That legal
landscape is very different, and that certainly was one of the
reasons set forth in our discussions when the policy change was
made.
Senator Lee. Okay. So this order that the Attorney General
issued on January 16th, you referred to it as essentially
ending this adoption program--again, the program by which the
Federal Government can assist State and local law enforcement
agencies in circumventing their own State law restrictions on
civil forfeiture.
But when you read the order, you see that it is subject to
several exceptions. One exception applies with respect--I think
you referred to this briefly before when you and I spoke a few
hours ago. One exception relates to property that directly
relates to public safety concerns. Fair enough.
Then you turn to the next page and you look at the second-
to-last paragraph, which contains some additional carve-outs.
This order does not apply to: (1) seizures by State and local
authorities working together with Federal authorities in a
joint task force; (2) seizures by State and local authorities
that are the result of joint Federal/State investigations or
that are coordinated with Federal authorities as part of
ongoing Federal investigations; or (3) seizures pursuant to
Federal seizure warrants obtained from Federal courts to take
custody of assets originally seized under State law.
As I see it, Ms. Lynch, this order, while purporting to end
this adoption program, as you say, is riddled with loopholes.
It is riddled with loopholes that effectively swallow the rule,
which seems to be a recurring theme today, which is something
that concerns me greatly with this Department.
Now, I understand that this order was issued, has been
issued prior to your confirmation--after your nomination, prior
to any confirmation vote on your nomination. But I would just
ask you to take into account these concerns and to work with me
moving forward on making sure that our civil forfeiture
programs do not get out of control.
But would you agree with me that we really ought to find
ways to stop Federal law enforcement agencies from helping
State governments to circumvent their own State law
restrictions on civil forfeiture?
Ms. Lynch. Senator, I believe that the policy change that
ended the adoption program certainly ends that as the problem
that had been raised. As you pointed out, these were situations
where local law enforcement made an initial stop or seizure, so
the seizure was not essentially begun by a Federal agent or
partner, and then the matter was brought to a Federal agent for
adoption and processing through the Asset Forfeiture-Equitable
Sharing system therein.
The other situations to which you refer where there is
either a Federal/State task force or a joint investigation
really are situations where there is actually a Federal case
from the outset and there would not be the issue of having to
review the State laws and they would not be an option in that
case, because again the case would be under Federal
jurisdiction from the very beginning.
So as you have pointed out, the initial adoption program
did raise concerns. I understand that those have been discussed
in the public discussion venue, as well as in law enforcement
circles as well, about the issue where the State has a robust
system of asset forfeiture but that system is not being used
and the Federal system is being used instead. The adoption
program ends that practice.
Senator Lee. It ends it but subjects it to some very large
loopholes. So I would just ask you to be aware of that, and I
would like to discuss that with you more moving forward.
Before my time expires, I want to get back to another
question I asked earlier. Indulge me in this hypothetical
scenario. We did not have time to fully explore it previously.
But imagine you are in a State in which there is a 55-mile-an-
hour speed limit. There are a lot of people who want that speed
limit raised. Imagine that the Chief Executive of that State,
the governor, really wants it raised to, say, 75 miles an hour.
There is a lot of support within the legislature and among the
public at large that there needs to be some reform to the speed
limit law, but they cannot get to any one proposal that gets
enough votes and so nothing happens.
The governor at that point decides that he will announce
that anyone who wants to drive faster than 55 will not be
ticketed and they can apply for certification that they will
not be ticketed if they want to drive up to 75 miles an hour.
He says I cannot guarantee this forever, but I can guarantee it
for the next three years, I will not be enforcing that.
Would that, under that hypothetical scenario, not be
tantamount to a usurpation of the legislative role that belongs
to the legislative branch?
Ms. Lynch. Well, Senator, with respect to your
hypothetical, before I could provide a response I would
certainly want to understand not just the factual framework
that you have outlined, but the relevant laws governing the
situation, as well as any prior State action, any actions that
had been sanctioned, all the types of things that would go into
rendering a legal opinion. And certainly, as I am sure you can
appreciate, I am a careful lawyer and I would want to have all
of that information before I could really give you a legal
opinion as to your hypothetical situation.
Senator Lee. Okay. I understand. I respect the great care
that you devote to answering questions. But I would
respectfully submit that at some point there is a limit to what
a Chief Executive can do, whether we are talking about a Chief
Executive in the form of a Governor at a State level or whether
we are talking about a Chief Executive who is the President of
the United States. At some point I would hope you could agree
with me that there are limits to what a Chief Executive can do.
At some point, when saying I am not going to enforce this
law--suppose it is not speed limits, let us say it is taxes. A
future President of the United States, whether a Republican or
Democrat, says I do not think we ought to have any tax rate
above 25 percent and at some point that President cannot get
Congress to agree, so that President says I am not going to
enforce any tax rate above a 25 percent marginal rate.
We can think of lots of examples. At some point there is a
limit and I hope that you will recognize that and hope that
moving forward, should you be confirmed, that you be one who is
willing to point out to the President of the United States that
you do have a client. Your client is the United States of
America.
The chief spokesperson for that client might be the
President himself, but your client is the United States.
Embodied within that are the constitutional restraints that
fall upon every officer sworn to uphold, protect, and defend
that Constitution, including the President himself.
I see that my time has expired. I recognize Mr. Blumenthal.
Senator Blumenthal. Thank you, Senator Lee. As a careful
lawyer, which I know you are, I want to try to perhaps set your
mind a little bit at ease about a question that you were asked
earlier. The question related to a statute that purportedly,
according to the questioner, made the Attorney General
responsible for determining who can take deferred action.
One of my colleagues suggested that the President's
Executive order is illegal because it is being implemented by
the Department of Homeland Security and not the Attorney
General, as the law he quoted seemed to suggest.
Just to clarify, the statute that was quoted to you
actually was amended in 2002. It no longer assigns
responsibility for immigration policy to the Attorney General.
The provision that he quoted, and another provision which more
directly authorizes what President Obama has done, are to be
implemented by the Secretary of Homeland Security.
So, good news: the President has done nothing wrong and you
do not have to run home and look up the statute and get ready
to implement a whole new area of law. You have enough to do, or
will have enough to do already.
I want to personally say that I appreciate that my
colleagues are not making immigration policy the kind of
turning point for their decision, or to put it a different way,
they are not making this nomination a referendum on the merits
of the President's immigration policy and decisions.
I must say I agree with the President's action and support
him, and so do sheriffs and chiefs of police across the
country.
I am going to ask, if there is no objection, that letters
that I have from towns as varied as Marshalltown, Iowa; Salt
Lake City, Utah; South Bend, Indiana; be made a part of the
record, and also a letter from the National Task Force to End
Sexual and Domestic Violence Against Women.
Both letters--all these letters make the case that the
President's Executive action not only helps immigration
officials target their scarce resources, but it also helps
State and local law enforcement to secure cooperation with
immigrant communities and identify potential criminals within
their jurisdiction. So the beneficiaries of the President's
policies are not just the immigrants, but also law enforcement
officials and people who are better protected by virtue of the
activities of those law enforcement officials. If there is no
objection, I ask that these materials be entered into the
record.
Senator Lee. Without objection.
[The letters appear as submissions for the record.]
Senator Blumenthal. Thank you.
I want to turn, briefly, to another area where you have
some very profoundly valuable experience. In the wake of the
events in Ferguson, Missouri, and New York City of last year,
many of us on the Committee and many around the country who
have backgrounds in law enforcement are deeply concerned with
making sure the public understands the vital role that our
police and our law enforcers in general play, as well as proper
training and discipline that should be provided to those police
and law enforcers.
I wonder if you could talk about your experience in
addressing the concerns about law enforcement in the wake of
the Abner Louima case, where you had a professional
involvement. I think how you feel, that that experience and new
policies at the Department of Justice might better help the
Department of Justice and State and local police.
I would mention that I led an effort to pass during the
last session a statute relating to death in custody. It is the
Death in Custody Reporting Act. It requires local and State
police to report deaths in custody, along with correction
officials. It is actually a reauthorization of a law that
expired in 2006, just a modest step toward gaining more facts.
But I think there are obviously two sides to this kind of issue
and I would very much appreciate your perspective on it.
Ms. Lynch. Certainly. Thank you, Senator. With respect to
my work on the Louima case, I was certainly privileged to be a
part of the trial team that handled that case. I think what
often is not commented on, and perhaps it is not even widely
known, is how essential the support and contributions and the
actual work of the NYPD was to both the investigation and the
prosecution of that case.
Our investigative team was comprised of both FBI agents and
New York City police officers who knew that unless we held each
other accountable, that unless law enforcement acted to hold
bad actors accountable, all of law enforcement would suffer.
And certainly one of the most painful things to watch during
that case was, as is often happening now, the understandable
anger and tension over it, but the backlash against larger
groups of police officers.
That is, in fact, one of the dangers of not addressing
police misconduct, is that not only are the officers who work
hard every day and work to not only follow the rules, but to
enhance the relationship between law enforcement and the
community. Those officers are not rewarded, but they often get
painted with the same brush as officers who may cross the line.
That is one of the greatest harms that we see from these
types of cases. I have been privileged to work with dedicated
police and agents my entire career and I think that there are
no greater teachers and no greater instructors for a young
prosecutor than an experienced police officer.
One of the things that we found most useful after the
Louima case was encouraging community policing, which the NYPD
was doing on its own, and a number of officers did very, very
well. I have seen situations where, when I was handing out
awards to officers and agents for working on a case in a mostly
minority area, cleaning out a housing project of a violent
crack organization, the residents asked if they could also come
and hand out plaques to those same officers and agents, and
they did so with plaques that said, basically, thank you for
giving us back our safety, our security, and our houses,
because there was a collaboration there. There was a
recognition that this is a joint effort. This is a shared
project that we all have between law enforcement and all the
communities that we serve to keep all of us safe.
We also have to work more, and certainly, if confirmed as
Attorney General, one of my priorities will be to ensure that
our police officers have the tools that they need to do their
jobs and to do them safely. Senator, I spent several weekends
this past month attending the funerals of Detectives Ramos and
Liu in New York City. To use the word ``heart-wrenching'' is,
frankly, an understatement. The sense of loss and grief with
this crime that has really touched the heart of New York City
was palpable on every street corner. We cannot allow our law
enforcement officers to be targets like this. We must provide
them the protections they need to do their jobs as well.
So certainly it is a priority of mine. I look forward to
working with you to address the legislation that you described
as well because the more we can get adequate information about
these deaths in custody, the more we can put effective
regulations, rules, and training in place to prevent them.
Senator Blumenthal. Thank you. Thank you for that excellent
answer. I can tell you that the grief over the loss, the
assassination of those two brave and dedicated police officers,
was shared in Connecticut. As a former United States Attorney,
as well as a State Attorney General, my own experience has been
that some of the strongest condemnation of improper conduct or
impropriety on the part of police officers comes from the
police and other law enforcement themselves, and they have the
toughest job--one of the toughest jobs, in my view--that exists
in public service.
I hope that the public appreciates it and that, as Attorney
General, you will work with Congress to try to educate and make
the public aware about the tremendous challenges they face day
in and day out and the courage and strength that they
demonstrate. So I thank you for that answer, and thank you
again for being here today.
Thank you, Mr. Chairman, whoever the Chairman is.
[Laughter].
Senator Lee. It is a flexible answer.
Senator Blumenthal. Well, I know that the Chairman is the
Senator from Texas.
[Laughter].
Senator Blumenthal. That is a nice answer to that question.
Senator Cruz [presiding]. Ms. Lynch, thank you for your
endurance in what has been a long, extended hearing. I would
ask in this round of questions if you could try to keep your
answers brief because we have got to return to votes on the
floor.
In the prior round, you and I had a conversation about the
OLC opinion and the President's Executive amnesty. You stated
your agreement with the legal reasoning in that OLC opinion. I
would like to explore the limits of that reasoning. As you
know, any legal theory that is being put forth to justify
Government power naturally raises the question, What are the
limits of that power? One of my greatest concerns about the
Holder Justice Department is that at every turn, when asked,
``What are the limits on Government power?'' the answer has
been, ``There are none, there are none, there are none.''
So let us talk about the limits of the prosecutorial
discretion power. The OLC memorandum justifies Executive
amnesty, in part based on prosecutorial discretion.
Initially that was limited to some 800,000 people in the
original DACA, then in the subsequent Executive amnesty that
expanded to 4 or 5 million people.
My first question to you is, in your understanding of
prosecutorial discretion, is there anything to prevent that
from being expanded from 4 or 5 million people to all 11 or 12
million people who are currently here illegally?
Ms. Lynch. Well, Senator, as I read the legal opinion, it
was focusing on how the Department of Homeland Security could
best execute its Executive discretion in prioritizing removals
of the most dangerous of the undocumented immigrants among us.
Then with respect to those who would be a low priority, it
focused on the legal framework for setting up a deferral
program. As I also read the opinion, it went through a legal
analysis that indicated that part of the request did not have
the requisite legal framework and should not be implemented. My
understanding is that that particular part of the request was
not implemented.
So I think that with respect to any action, certainly,
should I become confirmed as Attorney General, I would
undertake a very careful legal analysis based on all of the
facts presented to me by either the White House or whatever
agency raises the issue.
We would look at all of the precedent, congressional
action, the relevant statutes, and carefully explore whether or
not the requested action did have a legal framework. If there
was, in fact, a reasonable basis for it, as was outlined in the
opinion that I read, that information would be provided. But as
also was outlined in the opinion that I read, where the legal
framework did not exist to support the request or the proposed
action, that would have to be told to the requesting
Department.
Senator Cruz. Ms. Lynch, let me try again because you
described the memorandum, but I asked a pretty straightforward
question: Would prosecutorial discretion allow the President to
decline to enforce immigration laws against all 11 to 12
million people here illegally?
Ms. Lynch. Senator, prosecutorial discretion, as a tool,
certainly as I have used it as a career prosecutor and U.S.
Attorney, would focus on which cases to prosecute and which
types of charges to bring. It would not apply to the situation
that you have outlined, so I am sorry if I am not able to
answer your hypothetical in the way in which you are
requesting.
As I have utilized prosecutorial discretion throughout my
career, it has been with the presentation of cases before me
and determining the best way to focus limited resources.
Senator Cruz. Well, and of course this is not simply
prosecutorial discretion because in addition to stating that
Federal immigration law would not be enforced with respect to
somewhere between 4 and 5 million people, the President also
announced that the administration would be printing work
authorizations in direct contravention of Federal law.
Now, are you familiar in your practice as U.S. Attorney,
when you have declined--when you have used prosecutorial
discretion to prioritize prosecuting one crime versus another,
have you ever engaged in printing up authorizations for one set
of individuals to violate the law, to affirmatively violate the
law, which is what these work authorizations consist of?
Ms. Lynch. Senator, in my practice as a career prosecutor
and U.S. Attorney I have focused on bringing the strongest,
most effective cases based on the facts and the law that have
been presented to me, also when referring those cases to other
law enforcement agencies should my venue not be the most
appropriate one there.
With respect to----
Senator Cruz. Ms. Lynch, I am sorry to interrupt but we are
on limited time. What I asked is if, in your practice, you ever
issued authorizations to violate the law. That--I am certain
the answer is ``no.'' But am I correct in that?
Ms. Lynch. Senator, in my practice I focus on building the
most strongest, most effective cases against the perpetrators
who come before me and referring them to other jurisdictions if
I am not the appropriate venue. It would not be a part of my
responsibility----
Senator Cruz. Ms. Lynch, you are----
Ms. Lynch. To make a determination in the matter you are
referring to.
Senator Cruz. Ms. Lynch, you are a very experienced
prosecutor. You have asked questions and had witnesses decline
to answer. This is a simple question: Has your office issued
authorizations for individuals to violate Federal law?
Ms. Lynch. Senator, as the U.S. Attorney, our office is not
involved in issuing authorizations for anyone to work or not
work, or to engage in various activities. We are not a
licensing authority so I am just not able, unfortunately, to
answer the question as put to me.
Senator Cruz. So your office has not. Are you aware of a
precedent for the Federal Government doing what the
administration is doing right now, which, it has hired over
1,000 people, it is printing millions of authorizations for
individuals to violate Federal law. That is a remarkable step
and it is a step that goes much further than simply
prosecutorial discretion. Are you aware of any precedent for
hiring over 1,000 people to issue authorizations for
individuals to violate Federal law?
Ms. Lynch. Senator, I am not aware of the practices that
you are referring to now, nor am I aware of how the particular
remaining portions of the Executive action are being
implemented. So I am simply not able to comment on the
hypothetical as presented to me, or the particulars that you
have given to me. So I am sorry I do not have the information
to answer your question.
Senator Cruz. Well, then let me understand the limits of
the legal theory you are putting forth because you, in prior
questioning, embraced the prosecutorial discretion argument. So
Senator Lee asked you a minute ago--let us take the
hypothetical Senator Lee asked you about. If a subsequent
President, let us say President Cornyn, is sworn in in January
of 2017, and if President Cornyn decided that he was going to
instruct the Secretary of Treasury not to collect any taxes in
excess of 25 percent, to exercise prosecutorial discretion and
not collect the taxes. In your legal opinion, would that be
consistent with the Constitution?
Ms. Lynch. Senator, before I could render a legal opinion
on the hypothetical as presented to me I would want to know the
entire scope of the action, but also have the time to gather
all of the legal precedent, the cases, congressional actions,
any other similar or dissimilar actions where that particular
type of action might have been considered.
So I would certainly want to have all of that before I
provided a legal opinion in terms of the hypothetical that you
have presented to me.
Senator Cruz. So you are unable to give any legal judgment
to this Committee today on whether a subsequent President could
decline to enforce the tax laws as they are written?
Ms. Lynch. I think with respect to current or subsequent
presidential action there would have to be, as in every case, a
thorough review of the relevant law, the precedent,
congressional precedent, the statues in issue, in conjunction
with whatever action was being proposed, to see if there was in
fact a legal basis or whether there was not a legal basis for
the action being proposed.
Senator Cruz. Well, and let me ask--and this will be my
final question--your understanding of prosecutorial discretion.
Would it allow a subsequent President, President Cornyn, to
state that there are other laws that the administration will
not enforce? Labor laws, environmental laws. Would it allow a
President Cornyn to say, every existing Federal labor law shall
heretofore not apply to the State of Texas because I am using
my prosecutorial discretion to refuse to enforce those laws? In
your judgment, would that be constitutional?
Ms. Lynch. Well, I certainly cannot imagine President
Cornyn taking that step.
[Laughter].
Ms. Lynch. But with respect to the hypothetical that you
present, again, Senator, I would have to know what legal basis
was being proposed for that and certainly I would review that
law, and if I were the person providing advice to future
President Cornyn, advise him as to whether or not there was a
legal framework for it or whether there was not a legal
framework for it. If there was not, that would be the advice
that I would provide to him.
Senator Cruz. I must say, I find it remarkable that you are
unable to answer that question. I can answer it
straightforward: It would be patently unconstitutional for any
subsequent President to refuse to enforce the tax laws, or the
labor laws, or the immigration laws for the very same reason
that President Obama's actions refusing to enforce immigration
laws are unconstitutional. It is discouraging that a nominee
who hopes to serve as Attorney General either will not--will
not give a straightforward answer to that question.
My time at this point has expired, so I recognize Senator
Franken.
Senator Franken. Thank you, Senator, Mr. Chairman.
I am sorry, I am just a little shook up about this
President Cornyn thing.
[Laughter].
Senator Cornyn. It is your worst nightmare.
Senator Franken. Okay. I got here and suddenly Cornyn was
President and my world had changed.
[Laughter].
Senator Franken. I would like to ask you, Ms. Lynch, about
something that has been a focus of mine since I first got to
the Senate. I got there a little early. It took me a while to
get seated. It is about the financial meltdown and how it
happened and how it caused the Great Recession.
And it is about the credit rating agencies and their
business model. And basically what happened in the lead-up to
the meltdown was that banks would put out structured financial
products, subprime mortgaged-backed securities, say. And then
they would pay--or I am sorry, yes, they would choose a rating
agency like Standard & Poor's or Moody's or Fitch to rate it
and give them a rating.
And they would pay them, but they would choose them and it
turned out that a lot of junk got triple-A ratings. And this is
all kinds of--not just subprime mortgage-backed securities, but
then bets on those derivatives and then bets on the bets and
then bets on the bets on the bets. So the reason you had a
house of cards collapse is because you had all these bets based
on the original piece of junk and there was an incentive, a
total conflict of interest, which is: The credit rating
agencies knew that if they gave a triple-A rating, they would
get the next gig. So that is what they did. And then Chairman
Levin of the Permanent Subcommittee on Investigations
subpoenaed some emails from within S&P and they basically were
emailing each other, we have got to give these things that are
not good--the financial products--better ratings so we can keep
our share of the business.
And I have been fighting to get the--I had actually a
bipartisan piece in the Senate side of what is now called Dodd-
Frank, the Wall Street reform bill, to fix this. It has not
totally been fixed and I am on the SEC to do it. But this is
what I am getting to: the Department of Justice has a big
lawsuit against S&P. And I think it is for about $5 billion or
$6 billion and my understanding is, it may be being settled.
But, I just do not want this to stop with S&P, with the one
agency.
And actually SEC just did a settlement also with S&P on
this same practice that still exists. So what I want to know
is, will you take an aggressive approach to holding these
rating agencies--including, but not limited to, S&P--
accountable for their role in the financial crisis from before,
and their current role in what they are doing?
Ms. Lynch. Senator, certainly with respect to the financial
institutions, including the ratings agencies, if I am fortunate
enough to be confirmed as Attorney General, I do look forward
to taking a very aggressive stance in reviewing their conduct.
As you indicated, not just past conduct, but current and
prospective so that we can prevent these types of harms from
occurring again.
Senator Franken. Because Minnesotans lost their homes, they
lost their savings, they lost their jobs, and millions of
Americans did this because of these guys. And I do not think
they have learned their lesson, and I do not think they have
been incentivized to learn their lesson.
Okay. I am told I have to leave in two minutes. So I just
want to talk a little bit about transparency in NSA. I have one
minute. That took a minute, what I did.
Well, I just want to encourage us to work together if you
should be Attorney General on transparency in Government
surveillance because I think that Americans have the right to
know to the extent that it is not harmful, obviously, what
surveillance is like. For example, how many Americans' data was
captured, say, in the metadata, but how much was actually
accessed. And I think that had we done that, and I voted
against these two programs, 215 and 702, originally, because
they did not have enough transparency, and I think it is
absolutely essential that Americans know to the greatest degree
possible without jeopardizing our safety what is going on. So
just your commitment to work together on that.
Ms. Lynch. Absolutely, Senator.
Senator Franken. Okay. Thank you, Ms. Lynch.
Ms. Lynch. Thank you, sir.
Senator Franken. Mr. President.
[Laughter.]
Senator Cornyn. How are you holding up?
Ms. Lynch. I am fine, sir.
Senator Cornyn. Hanging in there? Good.
Forgive me for jumping around a little bit, but there are a
number--I know there have been a lot of different areas that
you have taken questions on and I just want to fill in some of
the gaps.
First of all, do you recognize the Second Amendment right
to keep and bear arms as an individual right?
Ms. Lynch. Yes, Senator. And I believe that has also been
decided by the Supreme Court as well.
Senator Cornyn. The Attorney General--the current Attorney
General and the Department of Justice had been involved in a
program known as Operation Choke Point that you are probably
familiar with to some extent. But this is a collaboration by
the Department of Justice and the Federal Deposit Insurance
Corporation, who have partnered to discourage banks and other
financial institutions from doing business with certain types
of businesses including lawful firearms dealers. Documents from
Operation Choke Point obtained by the House Oversight Committee
showed that the DOJ and FDIC used intimidation tactics and
categorized licensed and law-abiding gun dealers as having
engaged in ``high-risk activity'' similar to financial scams,
prostitution services, pornography, racist materials, gambling,
and drug paraphernalia.
I would just like to ask you, do you agree that it was
inappropriate for the Department of Justice and the FDIC to
associate licensed and law-abiding businesses with these types
of other obviously illicit activities?
Ms. Lynch. Senator, I appreciate your concern over any
Department initiative. My familiarity with the Choke Point
Initiative is based upon my understanding that it focuses on
payment processing companies that are involved in defrauding
consumers. And I am not aware enough of the underlying types of
businesses that the consumers themselves may have been
patronizing to know about the fact that you raise.
Certainly with respect to any initiative that the
Department of Justice engages in, should I be confirmed as
Attorney General, there is no room for improper bias or even
personal views. We must follow the law where it leads us. And I
certainly hope that should you have concerns about this program
or any other, that you would feel free to share them with me
and that I would look forward to working to provide you with as
much information as we could about them.
Senator Cornyn. I appreciate that. I have heard from
constituents back home in Texas from financial institutions
that they have been unable to continue long-standing banking
relationships with their own lenders because of some of these
tactics. And I will take you up on your offer to visit with you
more about those, the specifics of those cases, as well as the
topic I mentioned earlier at a later date. I appreciate that.
Senator Leahy, who just arrived, and I have joined in an
unlikely partnership on freedom of information areas. He and I
both agree that it is absolutely critical to the functioning of
our democratic form of Government that the people have access
to as much information as they can possibly get, so they can
make their consent to the laws that are passed informed
consent.
And so I want to ask you, in the Department of Justice's
evaluation of the Eastern District of New York under your
management, compliance with the Freedom of Information Act was
one of the few areas to receive criticism. In fairness to you,
it is one of the few areas in which there have been critical
comments. But do you believe that the Government should operate
under a presumption that information should be open to the
public unless otherwise precluded by law?
Ms. Lynch. Senator, I share your concern and your view that
the Freedom of Information Act is an important tool for the
American people to know about the functioning of all Government
agencies, including the Department of Justice.
With respect to my tenure as U.S. Attorney, during the
evaluation system which I found very, very helpful, I
specifically asked the evaluator to look at our management
systems and our support staff systems to make sure that we were
in compliance and to bring any issues to our attention.
They raised this issue, which was of great concern to me.
We immediately took steps to rectify the issues that we found
within our own office functioning. We have added increased
personnel to handle Freedom of Information Act requests. We
work closely with the Department of Justice to ensure that they
are handled as expeditiously as possible.
And so I actually found it a very helpful evaluation
process. And I find that I have learned the most when someone
has pointed out to me an area in which I might improve.
Senator Cornyn. And you took corrective action?
Ms. Lynch. Absolutely, immediately.
Senator Cornyn. President Obama in 2009 mandated that
Government agencies--executive branch agencies should operate
under the presumption that information should be open unless
otherwise prevented by some rule or some other law.
The current Department of Justice has taken the position
that information should be withheld if release of the
information will cause foreseeable harm. In other words, they
articulated a different standard than the President himself
called for in 2009, which is this presumption of openness
absent some legal prohibition against disclosure.
Senator Leahy and I have been working on some legislation
which would actually codify the President's mandate, the
presumption of openness. Is that a standard that you could
support, and would you work with us in your administration, if
confirmed, to make sure that this presumption of openness
applies across Government agencies and that information would
only be withheld from the public if some law or other rule or
regulation precluded?
Ms. Lynch. Senator, I share your view in the importance of
the Freedom of Information Act and in transparency. And
certainly I look forward to working with both you and Senator
Leahy to review that type of legislation. And I hope that in
the full and fair exchange that I believe we will have, as we
have had over the past few weeks, we can discuss ways in which
to make as much information available as possible while
protecting vital interests.
I certainly feel that with respect to the Department of
Justice, should I be confirmed as Attorney General, one of the
areas that we always have to be concerned about are ongoing
investigations and witness safety and security. But I feel that
through discussing these issues, it is something that we could
work together on.
Senator Cornyn. And finally, I know the Chairman alluded to
the gunwalking program known as Fast and Furious, which was the
subject of a lot of oversight efforts by this Committee and
others in the House, and then to our surprise Attorney General
Holder claimed executive privilege as to certain communications
and documents, even though the documents in question did not
involve the President or his staff, and the President himself
confirmed that claim of executive privilege.
As you may know, that claim is currently in litigation and
I would ask your commitment to take a look at that with a fresh
set of eyes to see whether you believe that the Department's
defense and continued refusal to deny Congress access to these
documents is justified under a claim of executive privilege.
Would you pledge to take a fresh look at that and render your
own independent judgment about that?
Ms. Lynch. Well, certainly, Senator, with respect to that
matter, it is the subject of ongoing litigation and I really do
not know when it is likely to be resolved. So I do not know
what stage it will be in should I be so fortunate as to be
confirmed. Certainly, however, I look forward to learning more
about it once I am able to, again, should I be confirmed, and
in reviewing that as well as any other matters.
Senator Cornyn. Just so we understand each other and this
will be my last question, if you are the next Attorney General,
you can decide to settle that case if you decide that the claim
of executive privilege was not well taken. In other words, if
there is no legal impediment based on a claim of executive
privilege to disclosing those documents, you, as the next
Attorney General could resolve that, couldn't you?
Ms. Lynch. Certainly. I believe that the ability to resolve
any number of cases would rest within me should I be confirmed
as the next Attorney General.
Senator Cornyn. Thank you.
Ms. Lynch. Thank you, Senator.
Chairman Grassley. I hope that when we are done here that
you do not get this attitude that the way this chaotic place is
run, why should you be working with a Congress of the United
States that does not always work this way. So I am just--it is
a little tongue in cheek. But----
Senator Leahy. It does not always work this way.
Ms. Lynch. Well, Senator, it has been a privilege to watch
the peaceful transfer of power that has gone on this afternoon.
[Laughter.]
Senator Leahy. I did not give him the great big gavel.
[Laughter.]
Chairman Grassley. Okay. Here we go. Before I read my
question, I want to kind of tell you, my view is, that there is
a very legitimate reason for between a counsel that is advising
the President for that to have a very tight counsel/client
relationship. Then we get into Fast and Furious and then 64,000
pages, and I will go into some detail here that I want you to
comment on that is maybe an argument that was privileged, but
is it really privileged?
So let me go to where you maybe had not a direct role, but
you were Chair--you chaired the Attorney General's Advisory
Committee. So you had a chance to watch your predecessor
closely in the job that you are now seeking. And I assume that
you learned lessons from that experience.
What is the biggest mistake that Attorney General Holder
made in the handling of the Fast and Furious controversy which
involved this privileged information that we are talking about?
And what would you have done differently?
Ms. Lynch. With respect to the privileged litigation which
is ongoing, as a Chair of the Attorney General's Advisory
Committee and a member before that, I was given general
information about the nature of the investigation itself and
the problems that lay therein. Simply put, Senator, the focus
in terms of providing information to the U.S. Attorney
community was more on the problems with the actual underlying
firearms investigation. And so I was not privy and have not
been privy to any of the decisions or discussions or rationale
behind the litigation over documents or privilege. That is
something that has not been shared with the U.S. Attorney
community. So I am not able to really categorically answer one
way or the other as to how that has been managed.
I certainly think that the Attorney General himself has
said that he's made mistakes in general. And he's been very
open and frank about that. With respect to that litigation, I
simply do not have information about that. You are correct, I
did receive general information about the underlying case
because it did represent an investigation that certainly the
review--the Inspector General's report--indicated was not
handled in the best way and was not the way in which those of
us in the U.S. Attorney community would have wanted to see that
case operate at all.
Chairman Grassley. Okay. Well, then you have probably have
answered half of that in this sense. Would you have done
anything differently?
Ms. Lynch. With respect to the firearms investigation?
Chairman Grassley. No, the way that the Attorney General
handled it?
Ms. Lynch. Well, with respect--certainly I think that
having the Inspector General review the firearms investigation
itself and come up with the issues that occurred within the
office and the handling of the case was something that I think
will be useful to the Department of Justice as it seeks to
prevent similar mistakes being made and improved training and
the like. With respect to the litigation over the documents,
again, I simply have not been involved in those decisions. And
so I am not able to say what the options were that the Attorney
General had that I would have chosen in a different manner. So
I am sorry for not being able to provide you with a direct
response to that question.
Chairman Grassley. Let me go back to the privilege and you
may have answered this, but I want to read my question anyway.
In my opinion, one of the Attorney General's biggest mistakes
was not following through on the President's promise to be the
most transparent administration in history. Instead, he became
the first Attorney General in the history to be held in
contempt of Congress with a bipartisan vote that included 17
Democrats.
Attorney General Holder finally delivered 64,000 pages of
documents to the House three years after the House subpoenaed,
two years after the contempt vote, and only after the House
went to court. So when push came to shove, he did not even try
to argue to the judge that those 64,000 pages were privileged.
Now, do you think it is appropriate to withhold so many
documents for so long, especially even if the Justice
Department admits that there was no valid privileged claim? And
if so, why? And if not, please explain why you would do it
differently?
Ms. Lynch. With respect to any issue where this body seeks
information from the Department of Justice, certainly in
documentary form, should I be confirmed as Attorney General, I
would carefully review the request and work to provide as much
information as could be provided consistent with our law
enforcement investigative responsibilities.
That would be my pledge to you going forward, Senator.
With respect to every issue of oversight that you would
bring to my attention, I certainly hope that you would bring
those issues to my attention.
Chairman Grassley. Can I ask the same question in my own
way in the sense of the way you might talk about it at a town
meeting? So people are mad about, you know, a lot of things the
President might do that you call Executive edicts or in this
case withholding information. In this case, the Attorney
General decided to withhold it.
Okay. If somebody asks me about Fast and Furious at a town
meeting, then I get into the fact that as far as I know the
President knew nothing about it and that this is between me and
the attorney--or the Attorney General and the Congress, I
should say. I only say ``me'' because I started this
investigation before the House took it over.
Then when they withhold 64,000 pages as opposed to a few
pages where maybe the President really knows something about
something that you can legitimately withhold it. Then I say to
my town meeting, you know, when 64,000 pages are supposedly
privileged, then I wonder, what does the President know about
it if they can be protected that way?
Well, now the Attorney General did not argue that they were
privileged. They were just given up. So you see the problem it
causes for me. And how far does executive privilege go? And it
surely does not go to 64,000 pages; if it does not, can't you
assume that the President knew a lot about Fast and Furious
when he says he did not know anything about it? Do you see the
problem that I have?
Ms. Lynch. I certainly can understand the frustration when
any party is seeking discovery or seeking information and
another party is not able to provide it, based upon the claim
of privilege or whatever that claim may be. Particularly a body
that has oversight responsibility over the Department of
Justice and is seeking to fulfill that obligation and that
mandate.
Certainly, with respect to the volume of documents, not
knowing the documents, I am not able to comment on how
appropriate or not that would be. And certainly, fortunately,
it was not civil litigation when it might have been a larger
number of documents was my experience as a young attorney.
Chairman Grassley. But I hope you at least understand why
it is frustrating to me the way this whole thing was handled.
Let me move on. As Senator Graham mentioned: in 2006, you
cosigned a Supreme Court brief on partial-birth abortion. I
believe you told him your primary concern was the impact the
law would have on law enforcement more broadly if upheld. That
brief argued the Federal Partial-Birth Abortion Ban Act was
unconstitutional and that partial-birth abortion ``procedures
are sometimes the best means to preserve a woman's health.''
The Supreme Court, along with a majority of Americans,
disagreed with any position taken in opposition of that
legislation, I assume as well as your position. The Supreme
Court held there is ``uncertainty (in the medical community)
over whether the barred procedure is ever necessary to preserve
a woman's health.'' Just one question. Judging by your
questionnaire, it does not look like you have added your name
to a lot of Supreme Court briefs. Of all the cases that you
could have become personally involved in, why did you pick this
particular case? Was that the only case that raised the
concerns you mentioned to Senator Graham? And I would like to
get this on record, because I assume you read the brief,
otherwise you would not have signed it; would that be right?
Ms. Lynch. Yes, Senator, that would be correct.
Chairman Grassley. So then can you say why did you pick
this particular case if you have not done it very often? And
was this the only case that raised concerns that you mentioned
to Senator Graham.
Ms. Lynch. Thank you, Senator. With respect to the amicus
brief, I joined a group of former Department of Justice
personnel, former United States Attorneys, as well as former
Assistant Attorneys General. And our focus was on our concern
that the way in which the law would be implemented might put
prosecutors at variance with doctors and their medical
treatment and might raise an issue that prosecutorial
discretion had been constrained in some way by the political
debate.
We were not focused on the actual issue involving the
procedure itself. In fact it was our concern that as lawyers we
did not have medical information or the medical capability to
evaluate that procedure and could be dealing with a situation
where a doctor may say something different from what the law
might require us to do. And that was the concern that was being
raised in that brief.
The Supreme Court did resolve the issue on the part of the
statute itself and certainly that is the law of the land now.
Chairman Grassley. Okay. Senator Leahy.
Senator Leahy. Thank you very much.
Chairman Grassley. And for both your benefit and for the
nominee's benefit, I have been told that I have two additional
Members that want to come over to ask a second round.
Senator Leahy. Are they going to come today?
Chairman Grassley. They are going to come just as soon--
yes. I am going to make sure they come today, just as soon as
the vote is over, I have been told. And you and I will have to
go vote, too.
Senator Leahy. Okay. Why don't we just recess and we will
go vote and then we will come back?
Chairman Grassley. We will recess. Thank you for being
patient.
[Whereupon, at 5:06 p.m., the Committee was recessed.]
[Whereupon, at 5:12 p.m., the Committee reconvened.]
Senator Cruz [presiding]. Welcome back.
Ms. Lynch. Thank you, Senator.
Senator Cruz. In an exchange we just had earlier this
afternoon, you detailed a very broad understanding of the
President's potential authority and, try as I might, I could
not find a hypothetical that you consider to be beyond the
power of the President.
I would like to ask you now a question that I have asked
Attorney General Holder and that he repeatedly declined to
answer, and it is in a different context. It concerns the civil
liberties and privacy rights of Americans and drone policy.
My question to you is, in your legal judgment, is it
constitutional for the Federal Government to utilize a drone
strike against an American citizen on U.S. soil if that
individual does not pose an imminent threat?
Ms. Lynch. Senator, certainly, I am not aware of legal
authority that would have authorized that nor am I aware of a
policy seeking authorization to do that. If you could, share
more information with me.
Senator Cruz. My question is about the constitutional
limits on the Federal Government's power. Attorney General
Holder repeatedly declined to answer the question about whether
it is constitutional for a drone to use lethal force against an
American citizen on U.S. soil if that individual does not pose
an imminent threat.
Now, let me be clear. I think the answer to this is very
easy. My question to you is, is it constitutional for the
Federal Government to do so?
Ms. Lynch. Senator, I think with respect to the use of
lethal force by any means, one would always want to look at the
law enforcement issues involved there. And certainly, if you
could provide more context there, I could place it in the scope
of either a case or an issue that I might have familiarity
with.
Senator Cruz. Ms. Lynch, it is in the nature of a
hypothetical. But you are certainly aware that the Federal
Government is currently using drone strikes overseas.
The Federal Government also maintains drone surveillance
domestically here at home. This Senate had an extended debate
on the limits of Federal Government authority with respect to
the privacy and civil rights of American citizens.
And I am asking you, in your view, does the Constitution
give any protection to American citizens? Does the Constitution
allow the Federal Government to do what it has done overseas,
utilized lethal force from a drone, could it do so against an
American citizen here at home if that individual did not pose
an imminent threat?
Ms. Lynch. Senator, with respect to the use of, as I said
before, of lethal force by any means, be it drone or someone on
the street, the use of lethal force is generally regulated by
either police guidance or by the nature of the interaction.
Based on what you were describing to me, I do not see
interaction between the American citizen that you are referring
to and anyone to generate the type of lethal force that you are
referring to.
Senator Cruz. I am disappointed that like Attorney General
Holder, you are declining to give a simple, straightforward
answer and, in fact, what I think is the obvious answer of
``no,'' the Federal Government cannot use lethal force from a
drone to kill an American citizen on American soil if that
individual does not pose an imminent threat.
I do not view that as a difficult legal question and,
indeed, it demonstrates what I think has been the consistent
failing of this administration's approach to constitutional law
is that it always, always, always opts in favor of Government
power.
Let me ask you a different question. This administration's
Department of Justice went before the United States Supreme
Court and argued that law enforcement could place a GPS on any
American citizen's automobile with no probable cause and no
articulable suspicion.
In your legal judgment, is placing a GPS on the automobile
of the men and women gathered here with no probable cause or
articulable suspicion, is that consistent with the Fourth
Amendment's protections of American citizens?
Ms. Lynch. I believe the Supreme Court has resolved that
issue, Senator, and I believe that law enforcement agencies
seeking to use that type of technique would need to obtain a
warrant.
Senator Cruz. You are correct. The Supreme Court resolved
that issue. It resolved it unanimously, 9-0. It rejected the
Holder Justice Department's position.
My question is, if you were Attorney General at the time,
would you have agreed with that argument that law enforcement
can place GPSs on any American citizen's car?
Ms. Lynch. Well, certainly, Senator, I was not involved in
the legal analysis or discussion then. Based upon the practice
prior to the Supreme Court argument and the fact that law
enforcement had used various techniques, this was a new
technique that was being evaluated and had been used in a
variety of ways.
So my understanding was that after a careful consideration
of precedent and practice, the Department made a strong
argument. The Supreme Court has reasoned and has ruled that a
warrant is required, and certainly that is the law of the land.
Should I be confirmed as Attorney General, that is
certainly the practice that I would follow.
Senator Cruz. The Obama Justice Department 22 times has
gone before the Supreme Court arguing for broader Government
authority and 22 times it has been unanimously rejected, 9-0,
the Court has rejected those claims.
Another case was a case called Hosanna-Tabor, where the
Obama Justice Department argued before the Supreme Court that
the First Amendment has no relevance, says nothing about
whether a church may select its own ministers or pastors.
Do you agree with that position that was put forth by this
Justice Department?
Ms. Lynch. Well, Senator, I have not read the briefs on
that, so certainly I am not aware of the full articulation of
that position. But I believe the Supreme Court has spoken and
has resolved that issue.
Certainly, should I be confirmed as Attorney General, I
would follow that precedent.
Senator Cruz. You are correct again. The Supreme Court
resolved that 9-0, rejecting the opinion. And I would note
Justice Elena Kagan, an appointee of this President, said from
the bench in that argument to the Department of Justice's
lawyer, ``I find your position amazing that the Justice
Department would argue the First Amendment does nothing, says
nothing about a church's ability to appoint its own ministers
and pastors.''
Let me ask you. If you are confirmed as Attorney General,
will you commit to this Committee to provide greater scrutiny
to the positions the Justice Department takes before the
Supreme Court and, in particular, to stop the practice over and
over again of advocating for broad Government power, which has
resulted in 22 times the Supreme Court unanimously rejecting
that argument?
Ms. Lynch. Senator, should I be so fortunate as to be
confirmed as Attorney General, I will take every case that
comes before the Department of Justice seriously. I will
consult with the career prosecutors there, also within the
Solicitor General's Office, on the facts of the case, the
relevant law, and, in conjunction with them, provide my best
judgment as to the approach to take.
Senator Cruz. Is it your understanding of the role of the
Attorney General that the Department of Justice should always
advocate greater Government power?
Ms. Lynch. Senator, my view is that the Department of
Justice advocates to defend statutes as passed by Congress and
that its greatest function is to represent the American people.
With respect to specific cases, again, I will always do as
I have done throughout my career as a lawyer, I will carefully
examine the facts of the case, the relevant law, precedent, and
make the best reasoned argument that there is to support the
position that is being advocated.
Senator Cruz. Let us shift to another area where this
Department of Justice has not been, in my view, faithfully
enforcing the law.
In May of 2013, the Inspector General of the Treasury
Department concluded that the IRS had wrongfully targeted
citizen groups for their political views.
When that news broke, President Obama publicly said he was
outraged. He said he was angry and he said the American people
had a right to be angry.
Ms. Lynch, do you agree with what President Obama said
then, that the American people have a right to be angry at the
IRS targeting citizens for their political views?
Ms. Lynch. Senator, my view is that political views or bias
have no place in the way in which not only the Department of
Justice, but all agencies carry out their duties. And,
certainly, when people hear of something that raises that
issue, I can understand their concerns.
Senator Cruz. In the nearly 2 years that have transpired,
the individual who led the IRS office in question, Ms. Lois
Lerner, has testified twice before Congress and has pleaded the
Fifth, which, as you are well aware, means she raised her hand
and said, ``If I answer your questions, it means I may
incriminate myself in criminal conduct.''
In the nearly 2 years since that time has transpired, not a
single person has been indicted. In the nearly 2 years since
that time has transpired, many of the victims of the illegal
targeting have yet to be interviewed by the FBI or the
Department of Justice. And in the nearly 2 years that have
transpired, we have discovered that the Department of Justice
appointed to lead the investigation a partisan Democrat who has
been a major donor to President Obama and the Democratic Party.
Indeed, she has given over $6,000 to President Obama and the
Democratic Party.
In your view, is it consistent with fairly and impartially
enforcing the law to have an investigation into the abuse of
power by the IRS headed by a major Democratic donor?
Ms. Lynch. Senator, my understanding of that investigation
is really from public records. I am not familiar with the
specifics of it.
I can certainly tell you that complex investigations often
do take several months, if not a year or more to resolve, and I
do not know the status of the witness interviews at this point.
So I am not able to provide you information on that point that
you raise.
With respect to how an investigation is staffed, again, I
believe that while I am not familiar with the details of this,
certainly my view is that the Department has career prosecutors
who are devoted to the Constitution and to the fair and
effective exercise of their judgment and that the Department
has made the decision as to how to best staff the case and make
the case.
I am just not able to comment on the length of time or
other issues that you raise. Certainly, should I be confirmed,
I look forward to learning more about the matter and as I have
said before, Senator, I appreciate your raising concerns with
me and I hope that you will continue to do so, should I have
the opportunity to work with you in the future.
Senator Cruz. One of the terrific things about the
Department of Justice is that it has a long and bipartisan
tradition of remaining above the fray from partisan politics,
of demonstrating a fidelity to law. So that when serious
accusations of abuse of power and, in fact, of abusing the IRS
were raised against Richard Nixon, his Attorney General, Elliot
Richardson, a Republican, appointed an independent counsel to
investigate those allegations free of any tainted propriety or
partisan bias.
Likewise, when serious allegations of wrongdoing against
William Clinton were raised, his Attorney General, Janet Reno,
a Democrat, made the same determination to appoint an
independent counsel, Robert Fiske, to investigate the matter
free of partisan, bias, or taint.
The question I would ask you, if you were confirmed as
Attorney General, would you commit to this Committee to appoint
a special prosecutor to investigate the IRS abuse of power who,
at a very minimum, is not a major Obama donor and who can be
counted on to actually investigate the facts and follow them
wherever they may lead?
Ms. Lynch. Senator, again, I am not familiar with the
investigation in great detail at this point. My understanding
is that that matter has been considered and that the matter has
been resolved to continue with the investigation as currently
set forth.
Should I be confirmed as Attorney General, I can commit to
you that I will take seriously every allegation of abuse of
power brought to my attention and, in conjunction with career
prosecutors and this body, where appropriate, make the best
decision about how to handle that investigation.
Senator Cruz. Ms. Lynch, you are correct that the matter
has been considered. Indeed, I sent a letter to Attorney
General Holder laying out the facts and asking him to follow
the bipartisan tradition of his predecessors and uphold the
rule of law, and he responded in writing that he was declining
to appoint a special prosecutor and the basis of his declining
to do so as the ``discretion of the Attorney General.''
So despite the internal DOJ rules that require recusal if
there is even an appearance of bias, the Attorney General
refused to appoint a special prosecutor.
You have stated you are not familiar with this
investigation. I think that is unfortunate, because when you
and I visited over a month ago in my office, we talked about
this investigation. I told you it was a very serious concern of
mine and I asked before your hearing if you would take the time
to familiarize yourself with what had occurred. And yet your
answer today is that you are not aware of what is happening.
Let me ask a more general question. Would you trust John
Mitchell to investigate Richard Nixon?
Ms. Lynch. You are referring to former Attorney General
Mitchell?
Senator Cruz. Yes.
Ms. Lynch. Again, Senator--again, based on that
hypothetical, I would have to know what the issue was and what
you were requesting him to do.
Senator Cruz. Would you trust John Mitchell to investigate
the allegations of wrongdoing in the break-in at Watergate
against Richard Nixon? Would you trust John Mitchell, who had
run Richard Nixon's campaign, to investigate the allegations
that ultimately led to Richard Nixon resigning the presidency?
Ms. Lynch. Well, I think that matter has been resolved.
Senator Cruz. Indeed.
[Laughter.]
Ms. Lynch. And certainly with respect to how that matter
should have been handled and Attorney General Mitchell's
involvement in it, I believe his role in it has been resolved,
as well.
So I am sorry, I am just not able--I do not think I am
understanding the basis of your question, sir.
Senator Cruz. Ms. Lynch, there are many of us who are
alumni of the Department of Justice, who have most respected
the Department when it demonstrated independence from the
President, when the Department was willing to stand up to the
President, when the Attorney General behaved not as if he or
she were the personal lawyer for the President who appointed
them, but rather when the Attorneys General in both parties
have behaved as independent, impartial law enforcement officers
who owe a fidelity to the Constitution and the laws.
Prior to becoming Attorney General, Eric Holder had a
reputation as a U.S. Attorney of upholding the law, and I was
hopeful when he was appointed that he would carry that
reputation forward as Attorney General. It has saddened me
greatly that he has not done so.
And I will say it is disappointing in this hearing that,
try as I might, there has been nothing I have been able to ask
you that has yielded any answer suggesting any limitations
whatsoever on the authority of the President. That does not
auger well for this Committee's assessment of your willingness
to stand up to the President when the Constitution and the laws
so require.
Do you agree with that characterization?
Ms. Lynch. Senator, as I have indicated before, I believe
that the role of the Attorney General is to provide their most
objective, well-researched, independent legal advice to the
President or any agency who may come before them with a request
for an opinion and where there is a legal basis for the request
being made, to indicate so; but where there is not, to also
tell the President or any other executive agency that what they
are asking for is not within the framework of the law.
I believe that that is the role of the Attorney General. I
believe the Attorney General must represent the people of the
United States and, should I be so fortunate as to be confirmed,
they will be my client and they will be my first thought.
Senator Cruz. The ``they'' that you refer to as your
client, just for clarification, to whom did the ``they'' refer?
I am sorry.
Ms. Lynch. ``They'' refers to the American people.
Senator Cruz. And yet, and I will ask again, can you
articulate any limitations on the authority of the President
that, as Attorney General, you would be prepared to stand up
and tell the President ``no, there is some modicum of power you
do not have''?
Ms. Lynch. Senator, I believe that the role of the Attorney
General does encompass the role of advising the President of
when actions do not have the appropriate legal framework and
when they may not be undertaken. That is something that I
believe is an important part of the functions of the Attorney
General and, certainly, should I be so fortunate as to be
confirmed, is something that I would not hesitate to do.
It is part of the function of the Attorney General, even
though a Cabinet member, to be independent of the President and
to provide their best independent legal judgment on any issue
presented to them.
Senator Cruz. Well, I hope that you will very much carry
through on that. It is discouraging that in the course of this
hearing you have been unwilling to say that the President lacks
the authority to refuse to enforce tax laws, labor laws,
environmental laws, immigration laws; that you have declined to
say that the President cannot order a drone strike on an
American citizen on U.S. soil; and that you have refused to
commit to a fair and impartial investigation of the IRS abuse
of power by a special prosecutor.
I hope, if you are confirmed, that your conduct in office
differs from the answers you have given at this hearing.
My time has now expired. I see Senator Leahy is here. So I
recognize Senator Leahy.
Senator Leahy. I see Senator Tillis here, too. I will
withhold my time.
Senator Tillis. Thank you, Senator.
Ms. Lynch, I wanted to go back to--and I do apologize for
all of this cycling. If you saw all the activity over in the
Senate chamber, you know what we are going through. It is
certainly not for a lack of interest in this important topic.
But I want to go back to the idea of the limited resources
within the DOJ and some matters. I would like to get some sense
that, if you should be confirmed, that you would take a look at
and potentially reconsider some of the priorities of the
current Attorney General, and I will give you one example.
In North Carolina, we did change the election law, early
voting. We went from 17 days to 10 days. In that law, though,
we made it, by law, you could never offer fewer hours of early
voting than the highest number that you ever offered in that
particular county.
And what that had the effect of, in this last election
cycle, is historic turnout even among minorities. So we have
got a lawsuit filed by this Department of Justice, where I am
named in it, questioning that, but then we have 12 States that
have no early voting whatsoever, and I am wondering why.
It seems to be inconsistent when you have one State that is
preserving the most that it has ever had before, other States
that have never offered it, and in a time of limited
prosecutorial resources, that we would actually allocate that
way.
Given all that has been said today about the limits of
resources and the need to allocate them to their best and
highest use, can you give some sense of your thinking on that?
Ms. Lynch. Well, Senator, with respect to the current
litigation that has been filed, I have not been involved it in
to date. I do know that it is proceeding through the courts and
I believe there will be further action this summer. There may
be a trial, I am not sure.
And so I think we will have to wait and see the judicial
determination on the impact of the changes in the North
Carolina State law.
As I indicated earlier, States obviously have grave
interest and a great interest in both preserving the right to
vote and protecting the integrity of the vote, and many of them
do so in ways that are effective throughout several States.
The Department of Justice will always have a concern if the
matter is raised as to whether or not there is a negative
impact, that is to say, a foreclosing of the right to vote, and
certainly people can differ on the impact that will be had and
that will always be the issue in a case to be brought along
those lines. And certainly nothing--I do not believe anything
would have been personally aimed at you, sir.
So with respect to that, when the issue is whether or not a
change in statutes somehow infringes up on this, our most
important right, it is something that the Department of Justice
will always review. But certainly, sir, I look forward to
having discussions with you about the nature of not this case
that is under litigation, but other matters in which the
Department is taking an interest and getting views of you and
others on this Committee on them.
Senator Tillis. I think it is very important, because
should you be confirmed, I think, again, I think we will always
be in this state of not enough resources for all the things
that we want to do and it just seems to me that this may be one
example where, if you looked objectively at the Supreme Court
case--States that are doing everything that they can to respect
and promote a citizen's right to vote--that to spend our
additional time and resources re-prosecuting laws does not seem
to be the best use of resources in the context of the limited
resources that we have discussed and several Members on this
panel have discussed today.
And I would look forward, should you be confirmed, to
having a discussion with you about how we can be sure that we
are putting it to the best purposes for the good of the
American people that you are trying to serve or that you will
try to serve.
Ms. Lynch. Thank you, sir.
Senator Tillis. Thank you.
Chairman Grassley. Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman. It is an honor
to serve with you and also to serve with our former Chairman,
and I appreciate the opportunity today.
I just want to pursue, to me, some legal rights here. It
seems to me that if there are two people applying for a job as
a truck driver, one is a lawful immigrant or a citizen and
another is not, under the President's order, the person
unlawfully here magically, at this moment, becomes eligible to
compete against an unemployed American truck driver, and I
think that is bizarre.
And the idea that there are rights that might attach to
someone who is here unlawfully to take jobs from Americans
under difficult working conditions, as we are today, is
antithetical to common sense.
So I think that we--somebody needs to be asking themselves
who is protecting the American worker, the people who are
paying the salaries of you, the President and all of us, and,
as a matter of law, the people who elect us or the people we
are most directly accountable for, and that is the citizens of
the United States.
So I am worried about that. What kind of lawsuit, what kind
of claim--have you thought about this--that might somebody who
loses out to a person who claims that they are legal to work
now because of the President's order and they did not become a
truck driver and the person that was recently legalized did get
the job?
Ms. Lynch. Well, Senator, at the outset, I do want to state
that it is my understanding that--and there is no right to work
for an undocumented immigrant in the country. So they would not
have the right to work.
Senator Sessions. Well, they would under the President's
order, would they not?
Ms. Lynch. For those people who can obtain documentation,
be it a green card or a visa or other cards, they would have
the ability to apply for positions.
With respect to----
Senator Sessions. Could I ask you about that? The President
is going to give work permits to 5 million. They would be,
under his theory, entitled to work. He would have created 5
million persons to compete against 5 million Americans for a
limited number of jobs, right?
Ms. Lynch. Senator, I believe that if the process were to
be implemented, as what I reviewed, there would be criteria set
up for people to apply for work permits. They would apply.
There would have to be a decision as to whether or not they
would receive them and then I do not know what level of
employment they would be able to apply for, but assume they
could apply for positions.
Senator Sessions. Well, the estimates are, I think, from
the White House, it would be as many as a total of 5 million
and they would be given work authorization, photo IDs, Social
Security numbers, and the ability to participate in Social
Security and Medicare.
Are you aware--and to me, I find no lawful basis for this.
And as the Attorney General and the person who supervises the
Office of Legal Counsel, whose opinion you have basically
affirmed here today, then you become, in a sense, the point
person for this effort.
And some have suggested, well, it is Homeland Security, but
Homeland Security asked your Department, Attorney General
Holder's Department, the Office of Legal Counsel for an opinion
that would allow them to do so.
So in effect, had the Department of Justice said no, that
this is not appropriate and cannot be justified, Homeland
Security would have been bound by that rejection, would it not?
Ms. Lynch. Homeland Security would have been bound by that
opinion, as I believe they were with respect to the portion of
their proposal to which the Office of Legal Counsel did say no,
there was not a legal basis for another portion that they
sought to implement, and I believe they did not implement that.
With respect to the deferral----
Senator Sessions. I am only talking about what they did
agree to. That apparently would be to create this new number of
workers.
Well, are there plans to--what if somebody not in the 5
million is arrested for speeding next week, would they be
deported?
Ms. Lynch. Well, Senator, I do not know how the Department
of Homeland Security would manage the removal. Certainly, a
criminal record, if, were there to be an arrest and a
conviction, would place someone in jeopardy of losing their
deferral status if that is what they initially had.
Senator Sessions. Well, the point is that you are not going
to deport any of the 7 million either. That is the policy that
has become clear in the last few years. And so the
administration, I would suggest, quite plainly is nullifying
American immigration law to a degree that is breathtaking, in
effect.
For example, you are saying that not only will we not find
the resources, ask for the resources, nobody has asked for more
resources to enforce the law if they need them; the President
is not asking for it because he has no intention, if it were
given to him, to use that money for that effect.
So that is the problem we have got. That is why the
American people are wondering who is going to defend them, who
is going to defend their children who are out trying to find a
job. African Americans, who have the highest unemployment rate
among young people, the data is clear.
This large flow of immigration at this time of lower
employment is hurting the poor the most.
So I would say to you that I am not raising this just to
make an argument about what kind of immigration policy we need.
I am raising this as a constitutional and legal question of
incredible importance.
As I read to you, professors have said this is perhaps the
greatest presidential overreach in history. The Congress
refused to pass what the President wanted to do.
I am not saying that you made that decision, you did not.
But your Department gave the legal opinion that justified it
after he 28 times said he did not have authority to do it.
Really an amazing event.
So, Mr. Chairman, I respect the nominee. She has got a good
family I know was raised right, and I appreciate that.
Maybe you are just in a difficult position that is not
necessarily your fault, but I am not satisfied that we at this
point in history can just slide by and let this go.
I think we need to confront this issue as a Congress that
needs to use the powers that it has to defend its legitimate
rights under the Constitution, and that is why I have
difficulties with your nomination.
I respect you and appreciate your appearance today and your
willingness to answer questions.
Chairman Grassley. Let me, before I go back to Senator
Tillis for 3 or 4 minutes, call on Senator Hatch. But let me
assure everybody that Senator Tillis, Senator Leahy, I have got
a couple requests of you, and then I think we are done.
Senator Leahy. Thank you. And another roll call vote has
started and I will be leaving soon. I am sorry there have been
so many questions that really have nothing to do with your
qualifications.
You were shown a book and told it is terrible what is
happening, the implication being something this administration
did. The prosecution of Ted Stevens, of course, the last
administration did that. This administration exonerated him.
Be that as it may, we talk about immigration, we have had
millions of people here but every administration knows you
cannot just remove 10 or 12 million people. President Reagan
and both President Bushes, they have all taken that same
position.
As far as jobs are concerned, the Chamber of Commerce
strongly supported the immigration bill that this Committee
passed two years ago and that the Senate passed by a bipartisan
majority. Grover Norquist, a very conservative economist, said
it would add billions of dollars, hundreds of billions of
dollars to our economy and would increase jobs--not decrease
them.
I wish the Speaker of the House had allowed it to come to a
vote over in the other body; it would have passed. But that is
not an issue for you. The issue is: Are you qualified to be
Attorney General? I have seen a lot of Attorneys General in the
40--now going on to my 41st--years that I have been here. Some
were very good, in both parties.
I think of Ed Levy, for example, in Gerald Ford's
administration--I remember one, that all my Republican
colleagues voted for him. But when he was here before this
Committee and asked questions, we gave him 50 or 60 of the
questions in advance, and he answered 70 to 75 times, ``I do
not know the answer,'' or, ``I am not sure, I cannot answer
that,'' even though he had had the questions weeks in advance.
They voted for him.
I must say that I cannot think of anybody in all these
years I have been here that struck me so much as being
qualified to be Attorney General as yourself. I said earlier
you are a prosecutor's prosecutor.
I think of the Attorney General as the Attorney General of
the United States, there for all of us. I referred to my days
as a young law student being recruited by then-Attorney General
Robert Kennedy, but I was just too homesick for Vermont so did
not stay. I am not going to ask further questions because I am
satisfied with what you said so far.
You will have my vote, you have my strong support, and I
hope in the remaining part of this administration that you will
be there to enforce the laws of the United States.
Thank you, Mr. Chairman. I have nothing further to say. I
will put the rest of my statement in the record.
Ms. Lynch. Thank you, Senator.
Chairman Grassley. Senator Tillis.
Senator Tillis. Thank you, Senator. I apologize, I should
have taken care of this question. But my final question, Ms.
Lynch, is really around the philosophy that you may bring to
the Department of Justice. In December 2014, the Government
Accountability Office issued a report that was titled, ``The
Department of Justice Could Strengthen Procedures for
Disciplining Its Attorneys.''
There were a couple of examples, going back to even, I
think, the handling of New Orleans police officers related to
the Hurricane Katrina, where there was either misconduct or
they had perjured themselves. Would you agree with me that the
Department of Justice employees who had engaged in this sort of
activity, either through prosecutorial misconduct or through
perjuring themselves in court, are they the kind of personnel
that you would allow to continue to be employed in the DOJ?
Ms. Lynch. Certainly, Senator, with respect to personnel
issues, I take very seriously the integrity of every member of
my staff, and if confirmed as Attorney General would also take
very seriously the professionalism of the members of all the
staff of the Department of Justice, all of whom I have found it
to have been a privilege and a pleasure to work with and to be
dedicated career professionals and dedicated to not just
improving their skills, but the highest standards of
professional conduct.
When they cross a line, they are dealt with and that will
continue to happen, should I be confirmed as Attorney General.
But I will say that with respect to the staff and the attorneys
at the Department of Justice, they are some of the most
effective and professional individuals that I have had the
pleasure to be affiliated with.
Senator Tillis. Well, should you be confirmed, since this
report was just dated last month, I hope that it is something
that you would take into account as you go into the
organization and look at the resources that you have inherited
responsibility for.
Ms. Lynch. Yes.
Senator Tillis. Thank you. Thank you very much. And thanks
to the family, in particular. I know it is a long day and those
seats are not that comfortable, so thank you all.
And again, congratulations on the honor that you have from
the President's nomination. Thank you very much.
Ms. Lynch. Thank you, Senator.
Chairman Grassley. I have changed my mind. I am not going
to ask you two questions, I am going to submit them, along with
some other questions, for you to answer in writing. I thank you
very much for being patient today.
It has been a long day and I suspect some Members of the
Committee were more impressed with your answers than others.
We are going to recess for the day and have our second
panel tomorrow. I hope you will count yourself lucky, let us
say, compared to Judge Mukasey. When he testified, he was
forced to come back for a second day of questions.
Finally, I would like to note that after tomorrow's panel I
am going to give everyone one week to submit questions for the
record. That is standard practice in this Committee. Once
again, thank you for being so patient and putting up with the
chaos that I formerly referred to.
Thank you. We are recessed now. Thank you.
Ms. Lynch. Thank you, Senator.
[Whereupon, at 5:50 p.m., the Committee was recessed, to
reconvene at 10:00 a.m., Thursday, January 29, 2015.]
[Additional material submitted for the record for Day 1
follows Day 2 of the hearing.]
CONFIRMATION HEARING ON THE
NOMINATION OF HON. LORETTA E. LYNCH
TO BE ATTORNEY GENERAL
OF THE UNITED STATES
----------
THURSDAY, JANUARY 29, 2015
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room SH-216, Hart Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley, Hatch, Sessions, Graham,
Cornyn, Lee, Cruz, Flake, Vitter, Perdue, Tillis, Leahy,
Feinstein, Schumer, Durbin, Whitehouse, Klobuchar, Franken,
Coons, and Blumenthal.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. For the Members who are present, except
for the ones that were here already, it will be on seniority,
and then other people that come in, you will be called on
according to how our respective staffs keep track of you in the
order of your appearance.
Before Chairman Leahy and I give our opening statements, I
would like to go over some things that I said yesterday.
First of all, we welcome everybody back to this second day
of the hearing on Ms. Lynch's nomination to be Attorney
General. As I said yesterday--and everybody abided by this, and
I want to thank everybody that was here yesterday for their
courtesy--I want everyone to be able to watch the hearing
without obstruction. And if people stand up and block the view
of those behind them or speak out of turn, it is not fair or
considerate to the others. So officers would remove those
individuals, and that is what I want to thank, because we did
not have any of those incidents yesterday.
Before we begin the opening statements, I will take care of
a couple of housekeeping items and explain the process.
First of all, I want to thank everyone for their patience
yesterday. It looks like we are going to have more floor votes
today, so, again, I am asking for your flexibility.
After opening statements, the plan is to start the first
round of questions, then recess so Members can vote. We would
then return after the first series of stacked votes, and I am
assuming that is going to be around 12:45. But you folks that
are answering questions for us, you cannot necessarily count on
that. But then we will keep going through the--there are four
votes this afternoon. We will not adjourn at that particular
time. We will do like we did yesterday. We will take turns
going and voting.
Senator Leahy and I will now give our opening statements.
Then we will turn to our witnesses for their opening
statements. Following their statements, we will begin with the
first round of questions in which each Senator will have 10
minutes. After the first round, then we will go to 8 minutes of
questions. And so then I will give my opening statement.
Obviously I welcome everybody, the audience as well as
witnesses, to our second day of hearings on Ms. Lynch's
nomination to be Attorney General. Yesterday we heard from the
nominee. I thought she was very engaging, very confident. There
is no question about her competence from what she has done as
far as her legal background and her work as U.S. Attorney.
We appreciated her willingness to stay here through it all
so we could get done with her in one day and everybody that
wanted to ask questions verbally could do it. Of course, there
are going to be a lot of questions in writing for her to answer
in time.
She is clearly a skilled and competent lawyer. We asked
questions yesterday, but I have to say, at least from my
standpoint--I am not speaking for any other Member--it seemed
like indirect answers. So I suspect that those will be followed
up with questions for the record.
Today we will hear this second panel in front of us right
now. Many of these will speak to the many ways the Department
of Justice, under its current leadership, has failed to fulfill
some of the most basic aspects of its mission. The question for
me and lot of Members on this side is whether Ms. Lynch is
committed to leading the Department of Justice in a new
direction. There are obviously people here that are going to
speak about the direction of the Department in a different way,
and we will listen courteously to that as well.
We will hear from Sharyl Attkisson, as one example of a
person who was an investigative journalist who has been
bullied, threatened, and literally blocked from entering the
Department of Justice, because she had the guts to report on
issues like Fast and Furious and Benghazi. That is one example
of something we would like to have a new Attorney General fix.
We will also hear from Catherine Engelbrecht who was
targeted by the IRS simply because she is a conservative who
has had the courage to stand up in defense of freedom and the
Constitution. The Department has paid lip service to the
investigation that it is supposedly leading. So I would like to
know how Ms. Lynch will take seriously the targeting of fellow
citizens based on their political views.
Then we have Sheriff David Clarke, from Milwaukee, who will
testify about how thousands of local law enforcement officers
across this country feel as though the current leadership does
not fully appreciate the work that law enforcement does every
day. So that is important to see how Ms. Lynch might mend the
broken relationship.
And then we will hear from Professors Turley and
Rosenkranz, who will address how the Department of Justice
under Eric Holder has rubberstamped the President's lawless
actions--from the unlawful recess appointments to the unlawful
Executive action specifically on immigration.
So those people will bring up points that we have made not
quite as directly as they have or personally as they have in
hopes that Ms. Lynch will restore the Office of Legal Counsel
to the impartial role it used to play as a check on the
President's authority.
So I look forward to the hearing today, and now it is
Senator Leahy's turn to give his opening statement.
OPENING STATEMENT OF HON. PATRICK J. LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Senator Leahy. Well, thank you, Mr. Chairman. This is the
second day of the Committee's consideration of Loretta Lynch to
serve as our Nation's Attorney General. We had a long day here
yesterday. Today we will hear testimony from outside witnesses
about Ms. Lynch. I would especially be interested in the
testimony from those who actually know her.
Yesterday we heard directly from her. Over nearly 8 hours
of testimony, she testified about the values and independence
she would bring to the office of the Attorney General. She
testified how she would make as priorities national security
and public safety but still preserve the values that we
Americans, I hope all of us, hold dear.
I was encouraged when Republican Senators on the Committee
agreed with me that the key question for voting for a nominee
to be Attorney General is independence. Some of us remember a
past Attorney General who told us he was a member of the
President's staff, and we all had to remind him, no, he is not;
he is not like the Secretary of Justice. He is the Attorney
General of the United States and is supposed to be independent.
Responding to questions on issue after issue, it was clear that
Ms. Lynch is an independent lawyer of strong character,
balanced demeanor, and obvious abilities.
I also want to take a moment to thank Chairman Grassley for
his handling of yesterday's hearing. It was no easy feat,
especially when we had 18 votes, I believe it was, yesterday
afternoon. He kept it going. He made sure that every Senator
who had a question on either side of the aisle was given the
time to ask their questions and be heard, and I commend him for
that. I appreciate the tone of this hearing.
Chairman Grassley. Thank you.
Senator Leahy. But I was not surprised at the fairness. We
have been friends for decades, and I know you well.
We are going to hear from law enforcement officials who
actually worked with Ms. Lynch. These are the people who have
the best knowledge of her. They strongly support her
nomination. Their presence today will speak to the support Ms.
Lynch has among both Republicans and Democrats. Similarly, one
of the finest FBI Directors we have ever had, Louis Freeh, has
submitted a letter of support on her behalf.
Now, Barack Obama is not the nominee. That may come as a
surprise to some who heard some of the questions. Eric Holder
is not the nominee. Loretta Lynch, the daughter of Lorine and
the Reverend Lorenzo Lynch, a U.S. Attorney twice unanimously
confirmed by the United States Senate, one who has been
applauded for her law enforcement work, that is who we are
being called upon to consider. I am confident that, after
hearing her testimony before this Committee and after reviewing
her record, no one in good faith could question her integrity
or her ability.
She said yesterday she looks forward to working with
Congress to confront the many issues facing Americans today,
and she has met with over 50 Senators in both parties. So I
hope we can come together in the Senate and support this
historic confirmation of an outstanding public servant and to
move quickly in doing it.
Thank you.
Chairman Grassley. Can I ask you, there is no reason to
make these people stand for an oath, is there? Can't they do it
sitting down?
Senator Leahy. Sure.
Chairman Grassley. Okay. I would like to----
Senator Leahy. Do whatever you wish.
Chairman Grassley. Well, I want to know what is legal.
Senator Leahy. It is okay with me.
Chairman Grassley. Do you affirm that the testimony-- would
you raise your hand, please? Do you affirm that the testimony
you are about to give before the Committee will be the truth,
the whole truth, and nothing but the truth, so help you God?
Ms. Attkisson. I do.
Mr. Barlow. I do.
Reverend Newsome. I do.
Ms. Fedarcyk. I do.
Professor Legomsky. I do.
Professor Turley. I do.
Sheriff Clarke. I do.
Professor Rosenkranz. I do.
Ms. Engelbrecht. I do.
Chairman Grassley. Thank you.
Now I am going to introduce everybody at the table all at
once instead of separately when one person gets done speaking,
so be patient with me.
Sharyl Attkisson is an investigative journalist and author.
For over 20 years, she worked for CBS News, winning multiple
Emmy awards for her investigative journalism pieces, including
her reporting on the 2012 Benghazi report and Fast and Furious.
Next we have David Barlow, whom we know well. Mr. Barlow
served as U.S. Attorney for the District of Utah, 2011-2014.
Prior to his tenure as U.S. Attorney, Mr. Barlow served on this
Committee as Senator Lee's chief counsel. He is now a partner
of Sidley Austin, Washington, DC.
Next is Reverend Newsome. Reverend Clarence Newsome is
president of the National Underground Railroad Freedom Center
in Cincinnati, Ohio.
Next is Janice Fedarcyk. Ms. Fedarcyk served as Assistant
Director in Charge of FBI's New York Division, 2010-2012. Ms.
Fedarcyk currently runs Fedarcyk Consulting, Washington, DC. I
know I pronounced it wrong.
Next we have Stephen Legomsky, John S. Lehmann University
Professor at Washington University School of Law.
Next we have Jonathan Turley, J.B. and Maurice C. Shapiro
Professor of Public Interest Law, George Washington University
Law School.
David Clarke is sheriff, Milwaukee County, and has served
for over 36 years as a law enforcement professional.
Next, Nicholas Rosenkranz is a professor of community law
and Federal jurisdiction, Georgetown University Law Center, and
a senior fellow at the Cato Institute.
Finally, we have Catherine Engelbrecht. Ms. Engelbrecht is
the founder and chairwoman of True The Vote, an election
integrity organization; the founder of King Street Patriots, a
citizen-led liberty group; and the co-owner of Engelbrecht
Manufacturing, a small business she owns with her husband in
her home State of Texas.
Now we will start with Ms. Attkisson.
STATEMENT OF SHARYL ATTKISSON, INVESTIGATIVE JOURNALIST,
LEESBURG, VIRGINIA
Ms. Attkisson. Thank you.
Chairman Grassley. Oh, if I did not, maybe I should say--I
think you have all been informed, but we would like to have 5
minutes.
Ms. Attkisson. Yes.
Chairman Grassley. Okay. Go ahead.
Ms. Attkisson. I have been a reporter for 30 years at CBS
News, PBS, CNN, and in local news. My producers and I have
probed countless political, corporate, charitable, and
financial stories ranging from Iraq contract waste and fraud
under Bush to green energy waste under Obama to consumer
stories relating to the drug industry.
Some of these reports have been recognized for excellence
in journalism--most recently, investigative Emmy nominations
and awards for reporting on TARP, Benghazi, green energy
spending, Fast and Furious, and a group of stories including an
undercover investigation into Republican fundraising.
The job of getting at the truth has never been more
difficult.
Facets of Federal Government have isolated themselves from
the public they serve. They covet and withhold public
information that we as citizens own. They bully and threaten
access of journalists who do their jobs, news organizations
that publish stories they do not like, and whistleblowers who
dare to tell the truth.
When I reported on factual contradictions in the
administration's accounts regarding Fast and Furious, pushback
included a frenzied campaign with White House officials trying
to chill the reporting by calling and emailing my superiors and
colleagues, using surrogate bloggers to advance false claims.
One White House official got so mad, he angrily cussed me out.
The Justice Department used its authority over building
security to handpick reporters allowed to attend a Fast and
Furious briefing, refusing to clear me into the public Justice
Department building.
Advocates had to file a lawsuit to obtain public
information about Fast and Furious improperly withheld under
executive privilege. Documents recently released show emails in
which taxpayer-paid White House and Justice Department press
officials complained that I was ``out of control'' and vowed to
call my bosses to try to stop my reporting.
Let me emphasize that my reporting was factually
indisputable. Government officials were not angry because I was
doing my job poorly. They were panicked because I was doing my
job well.
Many journalists have provided their own accounts.
The White House made good on its threat to punish C-SPAN
after C-SPAN dared to defy a White House demand to delay airing
a potentially embarrassing interview with the President.
Fifty news organizations, including CBS and The Washington
Post, wrote the White House objecting to unprecedented
restrictions on the press that raise constitutional concerns.
A New York Times photographer likened the White House
practices to the Soviet news agency TASS.
Former Washington Post Executive Editor Len Downie called
the Obama War on Leaks ``by far the most aggressive'' he has
seen since Nixon.
David Sanger of The New York Times called this ``the most
closed, control freak administration'' he has ever covered.
New York Times public editor Margaret Sullivan said it is
``the administration of unprecedented secrecy and unprecedented
attacks on a free press.''
Months before we knew that the Justice Department had
secretly seized AP phone records and surveilled Fox News' James
Rosen, before Director of National Intelligence James Clapper
incorrectly testified under oath that Americans were not
subject to mass data collection, I was tipped off that the
Government was likely secretly monitoring me due to my
reporting.
Three forensics exams confirmed the intrusive, long-term
remote surveillance. That included keystroke monitoring,
password capture, use of Skype to listen into audio and
exfiltrate files, and more.
Getting to the bottom of it has not been easy. It is
unclear what, if anything, the FBI has done to investigate.
The Justice Department has refused to answer simple,
direct, written congressional questions about its knowledge of
the case. It has stonewalled my Freedom of Information
requests--first saying it had no responsive documents, then
admitting to 2,500 of them but never providing any of them.
In 2013, Reporters Without Borders downgraded America's
standing in the global free press rankings, rating the Obama
administration as worse than Bush's.
It matters not that, when caught, the Government promises
to dial back or that James Rosen gets an apology.
The message has already been received: If you cross this
administration with perfectly accurate reporting they do not
like, you will be attacked and punished. You and your sources
may be subjected to the kind of surveillance devised for
enemies of the state.
For much of history, the United States has held itself out
as a model of freedom, democracy, and open, accountable
Government. Freedoms of expression and association are, of
course, protected by the Constitution.
Today those freedoms are under assault due to Government
policies of secrecy, leak prevention, and officials' contact
with the media, combined with large-scale surveillance
programs.
The nominee, if confirmed, should chart a new path and
reject the damaging policies and practices that have been used
by others in the past.
If we are not brave enough to confront these concerns, it
could do serious, long-term damage to a supposedly free press.
Thank you.
[The prepared statement of Ms. Attkisson appears as a
submission for the record.]
Chairman Grassley. Thank you, Ms. Attkisson.
If I am accurate, Professor Rosenkranz, you have recently
had a back operation and if you need to stand, we would not
object. So whatever you have to do.
Now, Mr. Barlow.
Senator Leahy. And I would echo that sitting here--
recovering from two fractured vertebrae, I know how important
it is to be able to stand.
Chairman Grassley. Yes, okay. Mr. Barlow.
STATEMENT OF DAVID B. BARLOW, PARTNER,
SIDLEY AUSTIN LLP, WASHINGTON, DC
Mr. Barlow. Thank you, Chairman Grassley, Ranking Member
Leahy, Members of the Judiciary Committee. It is my privilege
to appear before you here today in support of the nomination of
my former colleague, Loretta Lynch, to serve as Attorney
General of the United States.
I would be remiss if I did not first thank this Committee
for the strong support I received in 2011 when my own
nomination to serve as United States Attorney was before you.
It was a tremendous honor to serve as U.S. Attorney in the
Department of Justice. I always will be grateful for the trust
that you reposed in me when you supported my nomination.
And it is now my privilege to recommend Ms. Lynch to you.
You already have heard and read much about her storied 30-year
legal career. So instead of elaborating on her many
credentials, I want to take just a few minutes to share a
couple of personal observations about my former colleague.
I first met Loretta at a conference of United States
Attorneys several months after I was sworn in. And what I
remember most vividly about her was the way she handled a
portion of the program where U.S. Attorneys were asking
questions of the Executive Office of United States Attorneys.
Loretta moderated the session. Some of the discussion regarding
budgets, resource allocation, hiring authority, and other
issues understandably became intense as my colleagues and I
argued our various views and articulated the many needs that
our districts had during lean budgetary times.
But Loretta was calm and unruffled. She asked hard
questions, but she did so in an unfailingly dignified and
respectful way. Where strong feelings created the risk of
bringing more heat than light to the conversation, Loretta
brought only light. She was clearly tough, but also fair and
gracious.
That impression of Loretta was confirmed and deepened as I
served with her on the Attorney General's Advisory Committee,
the AGAC. As you know, the AGAC is a committee of roughly a
dozen United States Attorneys who serve as a voice of their
colleagues to the Department of Justice and provide counsel to
Department leadership on various management, policy, and
operational issues. Loretta was the chair of the AGAC during
the time that I served as a member of it.
You already know that United States Attorneys are not a
timid group. All are accustomed to being in charge. All are
used to expressing their views. And all are, at least in part,
the products of very different backgrounds, experiences, and
places. If you put twelve or so United States Attorneys
together in a room, as the AGAC does, you will get a wide
variety of ideas and perspectives, often very strongly held.
It takes someone very special to lead that kind of group.
For the AGAC to work well, to work as it is intended, that
someone needs to be smart, insightful, organized, articulate,
inclusive, and experienced. Loretta was and is all those things
and more. She was always well prepared. She made sure that all
points of view were fairly and fully considered. She listened
far more than she talked. She facilitated consensus wherever
possible and made space for dissent when consensus could not be
reached. And by her example and her conduct, she elevated the
discourse and refined the exchange of ideas in our committee.
Through these experiences, my initial impressions of Loretta
Lynch were fully confirmed: She is tough, fair, gracious,
smart, and independent.
In conclusion, during my time as United States Attorney, I
had the privilege of serving with a truly outstanding group of
U.S. Attorneys throughout the Nation. I learned much from them.
I was inspired by their service and their commitment. But of
all of these dedicated and talented public servants, the
Honorable Loretta Lynch truly stood out. If confirmed by the
Senate, I am sure she will make an excellent Attorney General
of the United States.
Thank you.
[The prepared statement of Mr. Barlow appears as a
submission for the record.]
Chairman Grassley. I will turn to Reverend Newsome.
STATEMENT OF REV. DR. CLARENCE G. NEWSOME, CINCINNATI, OHIO
Reverend Newsome. Mr. Chairman and Mr. Ranking Member and
Members of the Judiciary Committee, it is my pleasure and honor
to appear before you to support the nomination of Attorney
Loretta Elizabeth Lynch for the position of United States
Attorney General.
I have known Loretta virtually all of her life. Our family
relationships cover a period of 40 or more years. Her family
has been associated with several branches of my family by way
of the Baptist Church connection and the network of educators
in the great State of North Carolina. Her grandfather was a
highly regarded and respected clergyman; the same can be said
of her father and her brother, both of whom have been
distinguished leaders at the State and the national level for
some time. For many years her father was a key leader in the
life of the General Baptist State Convention of North Carolina
and the National Baptist Convention, USA. Her brother continues
in that tradition of leadership even now.
Her father and I have been ministerial colleagues since the
1970s. It was my privilege to teach her brother during the
years that I served on the Duke Divinity School faculty. I have
been able to maintain a warm personal association with her
mother, an esteemed church leader and educator in her own
right, for decades. Through her father, brother, and mother and
mutual family friends, I have been able to stay abreast of
Loretta's impressive and remarkable rise to a position of
preeminent leadership in the life of our Nation.
Loretta is the product of one of the most outstanding
families in the State of North Carolina. To the degree that
virtue counts in our society, I am bold to say that she is the
product of one of the most outstanding families in the United
States of America. The members of the Lynch family are known
for their exemplary character, integrity, excellent
achievement, civic-mindedness, commitment to the common good,
and deep and compelling sensitivity to the well-being of all
people.
Over the years it has been my privilege to witness the
development and emergence of the best of who we are as a Nation
in the person of Loretta. In the religious, educational, and
social circles in which our families have moved, she has had a
reputation for being stellar in everything she has done. As a
teenager, she drew the admiration of adults and, more
significantly, her peers as well. She stood out among them
without alienating herself from them. She stood out in many,
many ways. She was as approachable then as she is now. Even
then she enjoyed a reputation for being levelheaded, balanced
in her thinking, and wise in her judgments. She evidenced a
level of maturity that was out of the ordinary but only in
those ways that garner the respect of young and old alike.
As a teenager, Loretta was the daughter every parent would
love to have. Early in life, the quality of her character was
evident, and this is why the cities of Greensboro, where she
was born, and Durham, where she graduated from high school with
valedictory honors, claim her as a daughter who has made them
proud. All the more proud we North Carolinians will be if she
is appointed the first U.S. Attorney General in the State's
history.
As a student during her pre-college years, she performed at
such a high level that it only seemed natural that she would
attend and graduate from Harvard University and Harvard Law
School. In fact, her career trajectory is consistent with the
extraordinary intellectual ability and prowess, discipline, and
even courage she demonstrated during her youth. Early on she
dared to dream to become the best of the best, and she has
accomplished this in the field of law and jurisprudence. As her
professional record shows, she has become the best of the best
without qualification.
In the way that her career has taken shape, I can discern
several attributes that are worth noting at a time such as
this.
First of all, she is an informed, independent thinker who
listens well and studies hard.
Second, she has the capacity to maintain the strength of
her own convictions.
Third, she is morally grounded and highly principled.
Fourth, she acts decisively and judiciously.
And, fifth, she is a public servant of the highest order,
the type that works well with others to bring about good
results with positive outcomes.
Thank you very, very much.
[The prepared statement of Rev. Dr. Newsome appears as a
submission for the record.]
Chairman Grassley. Thank you very much, Reverend.
Ms. Fedarcyk.
STATEMENT OF JANICE K. FEDARCYK, FEDARCYK CONSULTING LLC,
CROWNSVILLE, MARYLAND
Ms. Fedarcyk. Chairman Grassley, Ranking Member Leahy, and
Members of the Committee, it is my pleasure to appear before
you this morning to speak about my association with the
Attorney General nominee, Loretta Lynch. I wholeheartedly
endorse her confirmation from the vantage point of someone who
worked closely alongside Loretta in her role as United States
Attorney of the Eastern District of New York during my 2 years
as the Assistant Director in Charge of the FBI's New York
office. I served in that capacity for 2 years, retiring in 2012
after 25 years of service in the FBI.
As the Assistant Director in Charge, I was responsible for
the largest field office in the FBI, and inherent to that are
the most complex and sensitive investigations in all of this
Nation's law enforcement. New York was and will remain the
target for the terrorism activities of individuals and groups
that espouse their violent agenda. From the World Trade Center
1 in 1993 to the terrorist attacks of 9/11 and beyond, we
continue to see this terrorist agenda manifested against New
York. As a result, the FBI's resources and the considerable
talents of the United States Attorneys in both the Eastern and
Southern Districts of New York are almost in a daily
undertaking to protect this Nation's security.
I think it is also important that the Committee appreciate
the magnitude of the criminal violations the New York office
worked. These violations ranged from the complicated and
pervasive financial crimes, the insidious and debilitating
effects of organized crime and public corruption, and the
violence associated with national gangs and other violent
offenders.
Given this challenging environment, it was a necessity to
establish a substantial and seamless partnership with Loretta
and her office. Over the course of the next 2 years, we formed
an effective partnership to address not only the national
security and criminal threats but also to engage in outreach
and liaison to make a positive impact in the community.
The basis for my unquestioned support for Loretta's
nomination is founded upon the numerous successes our offices
achieved, the close professional and personal relationship that
provided me extraordinary insight into Loretta both as a United
States Attorney and as a person. I was privileged to observe
her commitment to mission, her personal involvement in issues
that invariably arose in our work, as well as those within the
broader law enforcement community. In supporting Loretta's
nomination as the next Attorney General of the United States, I
would like to comment on three areas that form the foundation
of my recommendation:sound judgment, legal acumen, and
independence.
In all of my interactions with Loretta, her approach to
addressing and resolving issues invariably involved gathering
information to understand the issue, obtaining inputs from
affected stakeholders, and making a decision based upon the
facts and the law. As you heard Ms. Lynch yesterday commit to a
collaborative and deliberative approach, I can assure you based
on my experience that she will follow through.
While not an attorney, I do recognize that Loretta was
nominated and confirmed twice as a United States Attorney in
the Eastern District of New York; served on the Attorney
General's Advisory Committee and was named as chair of the
committee in 2013; and received favorable reviews by the
Executive Office for United States Attorneys which called her
``exceptionally well qualified.''
Lastly, I have never known Loretta to make a decision based
upon politics or outside influences. She consistently
demonstrated fairness, respect for others, and a deep sense of
duty. Under her leadership, her office embraced those qualities
in their work.
As I previously stated, our offices pursued a multitude of
national security and criminal investigations, including the
arrest of approximately 138 Mafia figures that represented the
largest single-day operation against the Mafia in history. But
other notable accomplishments spanned the spectrum of the
national priorities and are examples of her successes in the
Eastern District, including international terrorism, public
corruption, gang violations, violent offenders, etc.
Ms. Lynch's recognition that task forces brought the best
of interagency investigative resources to bear on entrenched
crime problems was integral to broader and deeper successes
than would have been the case for any one agency or department
to achieve alone. These task forces included the Nation's
largest Joint Terrorism Task Force, the Violent Gang Task
Forces, the Long Island Gang Task Force, the Health Care Task
Force, and the Financial Fraud Enforcement Task Force, to name
just a few.
In closing, Abraham Lincoln said, ``Character is like a
tree and reputation like a shadow. The shadow is what we think
of it; the tree is the real thing.'' Ms. Lynch is the real
thing.
Thank you.
[The prepared statement of Ms. Fedarcyk appears as a
submission for the record.]
Chairman Grassley. Thank you very much.
Now, Professor Legomsky.
STATEMENT OF STEPHEN H. LEGOMSKY, JOHN S. LEHMANN UNIVERSITY
PROFESSOR, SCHOOL OF LAW AT WASHINGTON UNIVERSITY, ST. LOUIS,
MISSOURI
Professor Legomsky. Thank you, Mr. Chairman and honorable
Members of the Committee. Thank you for the privilege of
testifying this morning. I am here to focus on the concerns
that some have expressed about the President's recent Executive
actions on immigration. I do sincerely appreciate that
reasonable minds can and do differ about the policy decision as
to precisely what the enforcement priorities are to be.
But I want to respectfully share my opinion that the
President's actions are clearly within his legal authority.
That is not just my opinion: 135 immigration law professors and
scholars signed a letter just this past November expressing
that same view in strong terms. This is the mainstream view
from those of us who have spent our careers teaching and
researching immigration law.
The President has not just one but multiple sources of
legal authority for these actions, and I have submitted a
detailed written statement that documents each of these. The
written statement also identifies every legal objection I could
think of that the President's critics have offered and it
explains why, in my view, none of them can withstand scrutiny.
So, with limited time, I will hit just a few key points and
refer you please to the written statement for all the other
points.
First, I think all now agree that in a world of limited
resources prosecutorial discretion is unavoidable. You cannot
go after everyone so you have to prioritize.
In the case of immigration, Congress has made this
explicit. It charged the Secretary of Homeland Security with
``establishing national immigration enforcement policies and
priorities''--priorities. That alone would seem to suffice.
But, in addition, year after year Congress knowingly gives the
administration only enough money to pursue less than 4 percent
of the undocumented population. That to me is the clearest
evidence possible that Congress intends for DHS to decide how
those limited resources can be most effectively deployed.
In fact, Congress has specifically required DHS to
prioritize three things: national security, border security,
and the removal of criminal offenders. And those are exactly
the three priorities that these recent Executive action memos
incorporate.
On top of all that, we have the 2012 Supreme Court decision
in Arizona v. U.S. where the Court struck down most of
Arizona's immigration enforcement statute precisely because it
would interfere with the Federal Government's immigration
enforcement discretion, which the Court went on at some length
to emphasize the breadth of.
Now some critics claim that if the recent Executive actions
are legal, then that would mean there are no limits at all and
therefore some future President could suspend enforcement of
some other law.
But DACA and DAPA do not even approach the sort of
hypothetical non-enforcement that that argument conjures up. If
the President were to refuse to substantially spend the
resources Congress has appropriated, then I believe we would
have a serious legal issue. But that is not even close to the
present reality, because even after DACA and DAPA are fully
operational, the President still will have only enough
resources to go after a small percentage. And so as long as he
continues to use those enforcement resources that Congress has
given him, it is hard for me to see how that could be called an
abdication.
As for deferred action specifically, the program has been
around for more than 50 years. Not only has Congress never
acted to prohibit it or even restrict it, Congress has
affirmatively recognized it by name in several provisions. The
formal agency regulations also recognize it by name. A long
line of courts, including the Supreme Court, have recognized it
by name. Not one of these legal authorities, not one, says or
even intimates that it is legal if there is a small number of
people but otherwise not.
The same is true for work permits. The statute authorizes
DHS to grant permission to work, and the regulations
specifically make deferred action recipients eligible for them.
Now, some have said deferred action is okay on an
individual basis, but not for a whole class. First of all,
nothing in the law actually says that. And in fact, almost
every modern President has granted reprieves from removal and
work permits to large, specifically defined classes of
undocumented immigrants.
At any rate, the Secretary's November memo is filled with
clear, careful, repeated instructions to officers that, even if
the general criteria in the memo are all satisfied, they still
have to make individualized, case-by-case discretionary
judgments. And in fact, the very form that USCIS officers are
required to use when they deny deferred action--and they have
denied it more than 32,000 times on the merits--contains a list
of the reasons, and one of those specific reasons listed is
discretion.
I think this is the way an agency should work. It
articulates general criteria and then expects its officers to
use some judgment in applying those criteria to individual
cases.
Thank you very much for your time.
[The prepared statement of Professor Legomsky appears as a
submission for the record.]
Chairman Grassley. Thank you. Professor Turley.
STATEMENT OF JONATHAN TURLEY, J.B. AND MAURICE C. SHAPIRO
PROFESSOR OF PUBLIC INTEREST LAW, GEORGE WASHINGTON UNIVERSITY
LAW SCHOOL, WASHINGTON, DC
Professor Turley. Thank you, Chairman Grassley, Ranking
Member Leahy, Members of the Senate Judiciary Committee, I
thank you for the honor of appearing before you at this
historic moment in looking for the confirmation of the 83rd
Attorney General of the United States.
I want to begin by saying I have great respect for Ms.
Lynch. As I have said before, her extraordinary career as a
prosecutor pays great credit to her and to her nomination.
Indeed, if confirmed, and I hope she is, I believe that she
could be a truly great Attorney General.
If great leaders are shaped at great moments in history,
this could be such a moment for Loretta Lynch.
The Justice Department is at the epicenter of a
constitutional crisis. A crisis that consumed her predecessor
and his Department.
My focus, therefore, of my written testimony and my oral
testimony today is less on Ms. Lynch than on the Department she
wishes to lead. As my academic writings indicate, I have been
concerned about the erosion of lines of separation of powers
for many years and particularly the erosion of legislative
authority of this body and of the House of Representatives.
That concern has grown to alarm in the last few years under
President Obama, someone that I voted for, someone with whom I
happen to agree on many issues, including some of the issues
involved in these controversies.
We are watching a fundamental change in our constitutional
system. It is changing in the very way that the Framers warned
us to avoid. The Justice Department has played a central and
troubling role in those changes. In my view, Attorney General
Holder has moved his Department outside of the navigational
beacons of the First and Second Articles of our Constitution.
In that sense, Ms. Lynch could be inheriting a Department that
is floundering.
The question is whether she can or will tack back to calmer
constitutional waters.
As discussed in my written testimony, the Framers focused
on one defining single danger in our system and that is the
aggrandizement of power in any one branch or in anyone's hands.
They sought to deny every branch the power to govern alone.
Our system requires consent and compromise. It goes without
saying that when we are politically divided as a Nation as we
are today, less things get done. But that division is no
license to go it alone as the President has suggested. You have
only two choices in the Madisonian system. You can either seek
to convince your adversaries, or you can seek to replace them.
You do not get to go it alone.
And there is nothing noble about circumventing the United
States Congress, because it means you are circumventing the
United States Constitution. And any person who claims that they
can get the job done alone is giving the very siren's call that
the Framers warned us against, and one that I hope this body
resists.
In my testimony I have laid out examples of how this change
is occurring. I have divided it between obstruction of
legislative authority and the usurpation of legislative
authority. The obstruction of legislative authority includes
the blocking of the contempt citation, the non-defense of
Federal statutes. Usurpation includes many of the legislative
changes that we will be talking about today and has been
discussed by others.
The American people, in my view, have been poorly served in
recent years by the Justice Department. The balance that has
been sought in recent years has been lost precisely as the
Framers have feared, the rise of a dominant Executive within
our system, a type of ``uber-presidency.''
It is certainly true that the Framers expected much from
us, but no more than they demanded from themselves. They
expected this institution to fight jealously over its own
authority. They gave you that authority not to protect your
power; the separation of power is designed to protect liberty
from the concentration of power. It does not matter what party
we are from and it does not matter if we agree with what the
President has done. In my view he has worthy ends, but he has
chosen unworthy means under the Constitution, and the Justice
Department has been a catalyst for that.
In exercising the power of confirmation, this body has an
undeniable interest in confirming that a nominee will address
these relational breaches, these unconstitutional actions.
I can only imagine the pride that Ms. Lynch's family will
have when she raises her hand to take the oath of office. When
that moment comes, however, there should be a clear
understanding as to what she is swearing true faith and
allegiance to as the 83rd Attorney General of the United States
of America.
The Department that she leads should be the embodiment, not
the enemy, of the separation of powers. It is a covenant of
faith that we have with each other. And I sincerely hope that
she regains that faith as she takes over, as she may, the
Department of Justice.
[The prepared statement of Professor Turley appears as a
submission for the record.]
STATEMENT OF DAVID A. CLARKE, JR., SHERIFF,
MILWAUKEE COUNTY, MILWAUKEE, WISCONSIN
Sheriff Clarke. Good morning, Chairman Grassley, Members of
the Senate Judiciary Committee, and Ranking Member Leahy. I am
honored to address you this morning about a frequent news
topic, American policing at the local level.
These hearings are focusing on the confirmation of possibly
the next Attorney General of the United States, Ms. Loretta
Lynch, and I wish her well.
I want to spend some time critiquing outgoing Attorney
General Eric Holder's tenure at the United States Department of
Justice and use it as the framework as a way forward.
The mission statement of the U.S. Department of Justice
says, ``To enforce the law and defend the interests of the
United States according to the law''--let me repeat that--
``according to the law; to ensure public safety against threats
foreign and domestic; to provide federal leadership in
preventing and controlling crime; to seek just punishment for
those guilty of unlawful behavior; and to ensure impartial
administration of justice for all Americans.''
In my 36 years in law enforcement I have viewed the United
States Department of Justice as an ally in pursuit of justice.
Local law enforcement has always been on the front lines in
preventing and controlling crime and seeking just punishment
for those guilty of unlawful behavior, as the mission statement
of the DOJ implies.
What I have witnessed from the Department of Justice under
the leadership of Attorney General Eric Holder has been almost
hostility toward local law enforcement. I have seen this in
both public statements made about the profession and some of
the policy decisions that treat police officers as adversaries
instead of allies in the pursuit of justice.
Partnering with local law enforcement agencies and ensuring
the fair treatment of all Americans in the pursuit of justice
are not mutually exclusive. What we all witnessed in Ferguson,
Missouri, back in August, was a tragedy, an unfortunate
incident for Officer Darren Wilson and citizen Mike Brown. What
followed, however, compounded that tragic situation as people
across the United States converged on Ferguson to exploit the
situation for self-serving purposes.
Suffice it to say that was not America's finest hour. In
the days and weeks that followed in Ferguson, Missouri, the
police-related use of force was forefront in the national news.
There was call for--at that moment when the U.S. DOJ inserted
itself early into the process--an appeal to reasonableness,
responsible rhetoric, and cautioning against a rush to
judgment. Instead, some very powerful people made statements
that only heightened rising tensions.
Unfortunately, race is, has been, and will always be an
explosive issue in America. The incendiary rhetoric used by
Eric Holder created a pathway for a false narrative that then
became the rallying cry for cop haters across America. It
sparked unjustified hatred toward America's law enforcement
agencies and its officers.
Without a shred of evidence, a broad brush has been used to
unfairly malign the reputation of the profession of policing in
the United States. The accusation has been made that our
community's finest systematically engage in the practice of
targeting young Black men because of the color of their skin.
That claim is patently false and I reject out of hand the mere
suggestion of it. If I am wrong, then someone needs to show me
the evidence.
Officers at the local level put on their uniforms and go
out every day to make their communities better and safer places
to live. Without them, our communities would collapse into
utter chaos. The world that our officers operate in is complex,
dynamic, uncertain, and one where unfortunately things can and
do go wrong. When that happens, the American law enforcement
officer needs to know that after a thorough and transparent
investigation the facts and evidence of a particular case will
be applied to the rule-of-law standard for a decision about
their actions.
After putting their lives on the line, they do not deserve
a standard of false narrative, preconceptions, misconceptions,
emotional rhetoric, or racial demagoguery. Author and scholar
Thomas Sowell said in a thought-provoking piece on the rule of
law, ``If people who are told that they are under arrest, and
who refuse to come with the police, cannot be forcibly taken
into custody, then we do not have the rule of law, when the law
itself is downgraded to suggestions that no one has the power
to enforce.'' So where do we go from here? How do we get beyond
this damaged or frayed relationship between local policing and
the U.S. DOJ?
My suggestion is for the next U.S. Attorney General to
articulate clearly a renewed commitment to rebuilding trust
with local law enforcement. That involves open lines of
communication with an emphasis on listening to the suggestion
of law enforcement executives, and for the Nation's sake,
please stop undermining the character and integrity of the
American law enforcement officer.
Next, resist at the Federal level to interfere with local
police training standards. Are cops perfect? No. In fact, far
from it. But they are our community's finest. Every community
is unique in what will work and what will not work. We already
have State standards for training.
Finally, I want to speak on two emerging issues on the
radar screen in criminal justice: sentencing and prison reform.
Any discussion about reform in these two areas that does not
include a counterview about the consequences of this short-term
technical fix and its impact on crime victims will have a
catastrophic consequence in already stressed Black and Hispanic
communities.
The recidivist nature of criminals will cause more
minorities to be victimized by violence similar to what
happened this past summer in Milwaukee to Sierra Guyton, a 10-
year-old girl shot in the head and killed while on a school
playground. The shooters were career criminals.
The Black community does not have the support structures in
place for an influx of career criminals sent back into the
community or to deal with the habitual criminals who currently
rain terror on neighbors. Adding more crime and violence to
that mix will only bring more misery to the overwhelming number
of decent Black, law-abiding citizens just trying to get
through life against already great odds. Reform that simply
lowers the bar is nothing more than normalizing criminal
behavior.
Thank you very much.
[The prepared statement of Sheriff Clarke appears as a
submission for the record.]
Chairman Grassley. Thank you, Sheriff.
STATEMENT OF NICHOLAS QUINN ROSENKRANZ, PROFESSOR OF LAW,
GEORGETOWN UNIVERSITY LAW CENTER, AND
SENIOR FELLOW IN CONSTITUTIONAL STUDIES, THE
CATO INSTITUTE, WASHINGTON, DC
Professor Rosenkranz. Thank you, Mr. Chairman, Ranking
Member Leahy, Members of the Committee. I thank you for the
opportunity to testify at this momentous hearing. The Committee
has rightly decided to explore not just the qualifications of
the nominee, but also the proper role of the office.
I myself take no position on the ultimate question of
whether the nominee should be confirmed. Rather, I offer some
observations about the proper role of the Attorney General, and
some comments, alas, on the ways in which the current
administration has fallen short of its constitutional
obligations.
You have explored at length the Attorney General's weighty
responsibility to supervise the various components of the
Department of Justice. But, as you know, the most important
responsibility of the Attorney General is not the supervision
of the tens of thousands who work beneath her; it is the solemn
counsel that she gives to the one who works above.
Her most important job is to give sound legal advice to the
President of the United States. And perhaps the most important
dimension of this function is to advise the President on the
scope of his Executive powers and duties.
The Attorney General should rightly explore all legal
options for the President to achieve his goals. But at the end
of the day, if no legal options are available, the Attorney
General must be prepared to say, ``No, Mr. President, you have
no constitutional power to do that.''
The fortitude--the rectitude--required to say ``no'' to the
President is perhaps the single most important job criterion
for Attorney General of the United States. I am afraid that it
is particularly important now, in an administration that is
inclined to press the outer bounds of Executive power and to
skirt the obligation to take care that the laws be faithfully
executed.
I hope that the Committee will thoroughly explore the
nominee's conception of faithful execution of the laws, and her
resolve to advise the President when he risks running afoul of
this constitutional obligation.
The Constitution provides that, ``The President . . . shall
take care that the Laws be faithfully executed.''
First, notice that this is not a grant of power, it is the
imposition of a duty: ``the President . . . shall take care . .
. '' This is not optional; it is mandatory.
Second, note that the duty is personal. Execution of the
laws may be delegated, but the duty to ``take care that the
Laws be faithfully executed'' is the President's alone.
Third, notice that the President is not required to take
care that the laws be completely executed; that would be
impossible. So the President does have power to make
enforcement choices, but he must make them faithfully. And
finally, it is important to remember the historical context of
the clause: English kings had claimed the power to suspend laws
unilaterally. The Framers rejected this practice.
With these principles in mind, we can turn to three recent
examples. Alas, there are many more one could choose.
First, the Obamacare suspension. On July 2nd, 2013, just
before the long weekend, the Obama administration announced via
blog post that the President would unilaterally suspend the
employer mandate of Obamacare, notwithstanding the unambiguous
command of the law. The statute is perfectly clear: It provides
that these provisions become effective on January 1st, 2014.
This blog post--written under the breezy Orwellian title,
``Continuing to Implement the ACA in a Careful Thoughtful
Manner''--makes no mention of the statutory deadline. Now,
whatever it may mean ``to take care that the Laws be faithfully
executed,'' it simply cannot mean declining to execute a law at
all.
Our second example, immigration, is almost an exact mirror
of the first. In this context, rather than declining to comply
with a duly enacted statute, the President has decided to
comply meticulously--but with a bill that never became law.
Congress has repeatedly considered a statute called the
DREAM Act, which would have exempted a broad category of aliens
from the INA, but Congress declined to pass it. So on June
15th, 2012, the President announced that he would simply not
enforce the INA against the precise category of aliens
described in the DREAM Act. He announced, in effect, that he
would act as though the DREAM Act had been enacted into law,
though it had not.
Now, this is clearly not an effort to conserve resources.
After all, the Solicitor General went to the Supreme Court to
forbid Arizona from helping to enforce the INA. Exempting more
than 1.76 million people from the immigration laws goes far
beyond the traditional conception of prosecutorial discretion.
Now, Professor Legomsky cited an unsurprising consensus of
liberal immigration law professors approving the most recent
action. I will cite just one authority, the President of the
United States, just a few years ago: ``America is a nation of
laws, which means I, as the President, am obligated to enforce
the law . . . . With respect to the notion that I can just
suspend deportations through Executive order, that's just not
the case, because there are laws on the books that Congress has
passed . . . . There are enough laws on the books by Congress
that are very clear in terms of how we have to enforce our
immigration system that for me to simply through Executive
order ignore those congressional mandates would not conform
with my appropriate role as President.'' I would hope that the
nominee would agree with this statement.
My final example is IRS targeting. I believe the witness to
my left is going to talk about that. I would be happy to answer
constitutional questions on that topic as well.
Thank you.
[The prepared statement of Professor Rosenkranz appears as
a submission for the record.]
STATEMENT OF CATHERINE ENGELBRECHT, FOUNDER,
TRUE THE VOTE, HOUSTON, TEXAS
Ms. Engelbrecht. Good morning, Mr. Chairman, Members of the
Committee. I am the founder of True The Vote, a national, non-
profit initiative to protect voters' rights and promote
election integrity.
I am here today because I was targeted by this Government
for daring to speak out. I am one of the thousands of Americans
who have become, sadly, living examples of this kind of
trickle-down tyranny that is actively endorsed by the current
administration and rigorously enforced by the Department of
Justice.
Over these past few years, the Department of Justice has
made their presence very well known in both my personal and
professional life. Since filing for tax exemption with the IRS
in 2010, my private businesses, my non-profit organizations,
and I personally have been subjected to more than 15 instances
of audit, inquiry, or investigation by Federal agencies,
including the IRS, OSHA, ATF, and the FBI. All of these
inquisitions began only after filing applications for tax
exemption. There is no other remarkable event or rationale to
explain how through decades I went unnoticed by the Federal
Government but now find myself on the receiving end of
interagency coordination into and against all facets of my
life.
I shared that same timeline as a part of testimony given in
February of 2014 at a hearing before the House Oversight and
Government Reform Committee. Time did not permit then, nor does
it now, to give a full account of the cast of characters and
confluence of events that fill a binder with over 800 pages
worth of Government subterfuge. But in one way or another, the
Department of Justice has found its way into almost every
aspect of my story.
In my attorney's testimony at last year's House hearing,
she spelled out for the Committee why we believed that the
Department of Justice investigation into the IRS targeting
scandal was in fact a sham. Within hours of her filing, she
received a phone call from the Department of Justice now
suddenly wanting to interview me. It was the first time we had
been contacted in approximately nine months after the
investigation had purportedly commenced.
An arrangement was made with the Department of Justice
Public Integrity Section, but we were then told that the Civil
Rights Division would also be participating in my interview.
Now, this is significant because, at the time, that same Civil
Rights Division was fighting against True The Vote in the
courtroom back in Texas, trying to prevent us from becoming an
intervening party for the State in voter ID litigation that the
Department of Justice had brought against them.
The DOJ told my attorney that unless I was willing to waive
my rights and obligations to the involvement of the Civil
Rights Division that they would not interview me at all. And to
date they still have not.
A handful of months later we met the Department of Justice
in court again, this time as they represented the Internal
Revenue Service in a lawsuit True The Vote filed against the
IRS in 2013. The DOJ assured the judge that there was no more
evidence that could be recovered from any of the hard-drive
crashes that had befallen IRS employees named in our suit. All
of the contents from all of the hard drives was certainly and
irrevocably lost. This purported dead end in discovery went on
to become a factor in the judge's ultimate decision to dismiss
our case.
Yet just one month later, the Treasury Inspector General's
investigation turned up an additional 2.5 million emails, of
which 30,000 were Lois Lerner's. Is there the will to ever get
to the truth behind this nightmare of citizen targeting?
For six years, the Department of Justice has operated as an
increasingly rogue agency where preservation of personal
liberties runs a distant second to preservation of political
power. Will this new leadership be any different? As the leader
of a voter rights organization, I was extremely disappointed to
hear Mrs. Lynch's comments in a speech she made in Los Angeles
last February when she said that voter ID laws were passed in
the Deep South so that ``minority voters would be
disenfranchised.'' And, further, that she applauded DOJ's
lawsuits filed against those States having ID programs and
promised that those lawsuits would continue.
Seventy percent of Americans believe that showing photo
identification in order to vote is a common-sense safeguard to
our electoral process. Should we count on continued resistance
from the Department of Justice led by Loretta Lynch?
In fact, the most significant voter disenfranchisement
threat currently facing our country was made possible by the
President's recent order of Executive amnesty. States are not
prepared to deal with the coming influx of illegal aliens
wanting social service programs like Medicaid, welfare, and, of
course, driver's licenses. Federal law requires that these
programs offer voter registration opportunities, which is a
wonderful thing for American citizens. But these programs were
not designed to verify citizenship, leaving many States without
the necessary firewalls to ensure that non-citizens do not end
up as registered voters. And every vote cast by a non-citizen
disenfranchises the vote of a citizen.
We know Mr. Holder is a proponent of amnesty. Where will
Ms. Lynch stand on the issue?
In a 2009 speech, General Holder called America a ``Nation
of Cowards.'' Well, if you remember nothing else from my
comments, please remember this: I am not a coward and I am not
a victim. I am a messenger for all of those Americans who love
our country, love our fellow countrymen, and pray for a better
tomorrow.
And I am here to say our country, right now, is at a
tipping point. We have replaced rule of law with mere
relativism. We have replaced truth with political correctness
and, in all of the double speak and double think, we have
become increasingly unsteady about how we the people factor
into a future left in the hands of our current leaders. So
please be bold, please choose wisely, because America is
watching. Thank you.
[The prepared statement of Ms. Engelbrecht appears as a
submission for the record.]
Chairman Grassley. Thank you to all the witnesses and now
Ms. Engelbrecht.
I am going to call in just a minute--or in just 30
seconds--I am going to call on Chairman Leahy to ask the first
questions because he cannot come back this afternoon, but would
you go ahead, Senator Hatch? You said you wanted to say
something.
Senator Hatch. Well, I just want to mention to you, Ms.
Engelbrecht, that we are thoroughly investigating this. The
only reason we have not issued a report so far is that, as you
mentioned, there were 30,000 more emails finally discovered.
TIGTA, the investigative arm of the IRS, has not yet released
those to us, and we are going to have to go through those
before we issue a final report. But you have my total sympathy
for what you have gone through.
Ms. Engelbrecht. Thank you, Senator.
Chairman Grassley. And he is speaking as Chairman of the
Finance Committee.
Senator Leahy.
Senator Leahy. Well, thank you, Mr. Chairman. I appreciate
your courtesy.
I would ask consent that I put in the record----
Chairman Grassley. Without objection.
Senator Leahy. I just mentioned a number of the letters I
will submit--former FBI Director Louis Freeh, whom we all know
very well, is supportive of Loretta Lynch, and Congressman John
Lewis, a number of Justice Department officials both in the
Bush administration and various Democratic administrations, the
FBI Agents Association. I will not list all of them, but if
they could all just be part of the record.
Chairman Grassley. They will be, Senator Leahy.
[The letters appear as submissions for the record.]
Senator Leahy. We have nine witnesses here today. Would
those who oppose Loretta Lynch as Attorney General please raise
their hand?
Let the record show no hands were raised.
Ms. Fedarcyk, you know, it is amazing, your record. You
started off as a beat cop in Nevada, joined the FBI, and 23
years later, you were heading up the FBI's largest field
office. And like many here, I was briefed during that time on
some of the investigations you had underway, especially in the
terrorist area. They were remarkable in their complexities.
You also dealt, as you said, with Loretta Lynch during that
time. Do you believe that she has the temperament and the
demeanor to be an Attorney General?
Ms. Fedarcyk. Senator, my 2 years' exposure working
alongside Loretta--and I say ``alongside'' because it was truly
a seamless partnership--I think gives me a little bit of
background and experience to be able to say that I firmly
believe that Loretta Lynch possesses all of the necessary
attributes that the Nation should demand of an independent
Attorney General. And I wholeheartedly support her nomination
and confirmation.
Senator Leahy. I do not want to put words in your mouth,
but do you find that she would make independent judgments?
Ms. Fedarcyk. Yes, sir. And, in fact, that was part of my
opening statement, the fact that one of the three attributes
that I wanted to touch upon was the fact that she operated
independently, did not bow to outside influences, looked at the
facts, looked at the issues. When she was confronted with an
issue, she gathered input from stakeholders, solicited their
input, took a look at the law, made sure that her decisions
were wholly based on the facts and the law and independently
arrived at.
Senator Leahy. Your career in law enforcement was a lot
longer than my career in law enforcement, but I know during my
years in law enforcement what we wanted was independence, and I
appreciate that.
Mr. Barlow, nice to have you back here. I usually would see
you in the other Committee room. Do you believe that Loretta
Lynch has the independence to stand up to others in the
executive branch, including the President, if she feels she is
in the right and has to stand up to do her job as Attorney
General?
Mr. Barlow. Yes, Senator, I do. In my experience working
with her and working through any number of different issues,
seeing her in a variety of different circumstances, I have
always known her to be thoughtful, well prepared, and someone
who is interested in the facts and the law. I do not believe
the President or anyone on this Earth could get her to make a
decision that she did not believe was right and had a firm
basis in where her duty was at that moment.
Senator Leahy. In Louis Freeh's letter, he talks about her
being part of the group that went to Italy for the funeral of
one of the top Mafia fighters, somebody that both Director
Freeh and I had known, and he said that she was there with him
on that because of her attitude about organized crime. So I
have known her peripherally over the years and more since the
nomination.
But, Dr. Newsome, you have known her longer than all the
rest of us. Do you believe she would stand up for what she
believes is right no matter who she might be getting pressure
from--the President, me, Senator Grassley, or you?
[Laughter.]
Reverend Newsome. Absolutely, Senator. She would
demonstrate independence in the most constructive of ways. One
of her greatest attributes, as has already been noted, is her
ability to hold forth with the strength of her own convictions,
having prepared herself thoroughly, thought through matters
very, very comprehensively, having identified the issues in a
way that she could communicate her position in a way that would
garner nothing but the highest of respect.
Senator Leahy. I talked yesterday about as a young law
student being recruited by the then-Attorney General of the
United States to come to work for him, and I had asked him
whether he would stand up to the President of the United States
if need be. He assured me he would. Later he did when he
prosecuted a man who was essential to the election of the
President. And when I asked him later about that, I said,
``Attorney General Robert Kennedy, what was the reaction?'' He
said, ``I stayed away from family gatherings for a little
while.''
[Laughter.]
Senator Leahy. Professor Turley, many of us have seen you
many, many times. The House Republicans have hired you to sue
the administration in another area, and the taxpayers will pay
your fee. It was said that this could cost as much as $3
million. They are not paying you $3 million, are they?
[Laughter.]
Professor Turley. I am certainly open to that, Senator
Leahy. But, no, no one has offered me $3 million.
Senator Leahy. What is the hourly rate you do charge?
Professor Turley. I think the hourly rate is set by the
contract, not by me, I think at a top of $500. But I seem to
recall that.
I want to correct something. I am actually working not for
the House Republicans but for the House of Representatives.
They voted to approve the----
Senator Leahy. It was a Republican vote. It was a partisan
vote, as you know. Not to spin it too closely. But do you get
paid for your testimony here today?
Professor Turley. Oh, no, of course not.
Senator Leahy. Thank you. I thought I would ask that out of
fairness to you.
I appreciated the answer when no hands went up to the first
question I asked, and I hope we can move on. Many of you have
questions about the past operations of the Department of
Justice. I have some disagreements with that, but I think we
are talking about the remaining time of this administration and
the Department of Justice. And, frankly, as one American and as
a former prosecutor and as the longest-serving Member of the
Senate and one who has voted on a lot of Attorneys General,
both for Republicans and Democrats, I feel very, very confident
in voting for Loretta Lynch as Attorney General.
And, again, I thank you, Mr. Chairman, for your courtesy.
Chairman Grassley. You bet.
I am going to start out with Ms. Attkisson. In your
testimony, you say that you have a long career of investigative
reporting. I am sure you have dealt with pushback from powerful
people before. What makes the last few years different?
Ms. Attkisson. I defer somewhat to some of my colleagues
that I quoted in my opening statement who said this was in
their experience, which is longer than mine, the most difficult
administration they had dealt with. Ann Compton, another
correspondent, said this was the most closed President she has
dealt with in seven Presidents she has covered. And I see it as
a high point on a trajectory and a continuum, meaning every
administration seems to be worse than the last. Although they
come in promising openness and transparency, they seem to pick
up where the last one left off. And there has not been as much
pushback, I think, from Congress and the media in some cases to
keep that balance because, of course, the Government tends to,
for whatever reason, covet information, separate itself from
the public, and treat itself kind of as one and apart.
But we are supposed to help create a balance so it does not
get out of whack, and I think we have not done a very good job
at that in the last couple of years.
Additionally, this administration has employed very
aggressive techniques that are available to it that were not
available years ago, such as using social media and surrogate
bloggers to put out false information to controversialize any
reporters who dare to do the normal oversight reporting that we
have done on other administrations. And I think that has been
somewhat successful.
Chairman Grassley. You say in your testimony that you were
once barred from attending a briefing in the Justice
Department. What reasons were you given?
Ms. Attkisson. A briefing was called on Fast and Furious,
and I was sent over to the office, but Tracy Schmaler, the
press officer, called back immediately and said do not bother
to come, that she would not clear me in the building, although
I have a press pass, I have been cleared, you know, through the
FBI to walk up to the President of the United States, but she
was not going to clear me through building security. She did
not give a reason other than to just say they only wanted the
normal beat reporters to attend. I cannot tell you how improper
that is, in my view, how improper it is that Government
officials who control public assets would misuse their
authority to, in essence, hand-pick the reporters who get to
cover the story, I think, in essence, the way they would rather
it be covered and keep out in some cases more knowledgeable
reporters who have been covering that particular issue. That
had never happened to me before. I never tried to go there
afterwards. It did not happen to me afterwards. But I think
that was a very important thing that was done, and I think it
was very improper.
Chairman Grassley. Do you think any of your colleagues and
fellow journalists pulled punches because they thought they
might be barred?
Ms. Attkisson. I do not personally know. I think the
reporters on the ground do a great job, but I do know there are
managers and editors--and I have spoken to executives from
three networks--who have given instances in which they have
been specifically threatened with loss of some sort of access
if the news organization takes a particular news course. So
that threat of access is definitely felt.
Chairman Grassley. My next question gets to the fact that
we are not here to talk about her qualifications--I do not
think anybody questions that--but whether she can make changes
in the Department of Justice. What do you think needs to be
done to correct the chilling effect on the press over the last
few years?
Ms. Attkisson. Sometimes I think it is more than just the
physical steps that are taken. It is an action that is seen and
a message that is perceived. Right now, regardless of steps
that have been taken to mitigate damage that has been done,
there is still a large distrust of the Justice Department, and
in some cases Government in general.
There are Members of Congress and staff and whistleblowers
and other journalists who commonly talk about the idea that
they believe--whether it is true or not--that they believe they
are being monitored on their phones and/or computers. How you
get past that suspicion that has been created by the actions
that we have seen, it is going to be difficult.
One very tangible thing that could be done and I think
needs to be done--and I will not belabor it, but it has to do
with freedom of information law, which is pretty much pointless
and senseless now in its application at the Federal level. It
does no good. It has been used--instead of to facilitate the
timely release of public information, it has been used as a
tool to obstruct and delay the release of public information.
It is no good, you know, if you even do go to court to get your
public documents, that is at taxpayer expense. It still serves
the purpose of delay that the bureaucracy wishes to serve. And
at the end, even if they have to pay the plaintiff's fees, that
is done with our tax dollars, and basically the Federal agency
gets rewarded for a job well done because they have been able
to obscure and delay the release of these public documents. So
FOIA is extremely broken at the Federal level.
Chairman Grassley. You just describe my last question, so
you will not have to answer it, but just to make it clear, you
felt your computer was hacked, you filed for information on it,
and you still do not have an answer. Is that right?
Ms. Attkisson. That is right. The FBI, I think something
like--I filed a request just in general for information 540
days ago. A response is due in something like 20 business days.
But this is very typical of FOIA responses.
I got a very partial, incomplete response last night to a
FOIA request that I made with the Department of Justice
Inspector General, which did not include the forensics that
supposedly came along with some conclusions and summaries they
made, so that will be a process that--who knows if I will ever
get the documents I have been asking for for months. But this
is very typical, reporters will tell you, and citizens and
consumers, of their efforts to try to obtain easily accessible
public information or information that should be easily
accessible.
Chairman Grassley. Ms. Engelbrecht, in May 2013, General
Holder announced that he had ordered the Department of Justice
to conduct a criminal investigation into the IRS for targeting
conservatives. At the time, the Attorney General called the IRS
practices ``outrageous and unacceptable.''
When did the Department of Justice first reach out to you
or your lawyer to learn the details of your ordeal?
Ms. Engelbrecht. We had heard nothing from the Department
of Justice right up until the day before we were to testify
before the House Committee. My attorney and I were both
prepared to testify. My attorney filed her testimony in which
we were very critical of what had happened to that point, and
it was not hours later that the Department of Justice called
for the first time to ask to speak with us, so 9 months
approximately.
Chairman Grassley. So after 9 months, General Holder
ordered the investigation, reached out to you, and what
prompted them to do so? Do you have any idea?
Ms. Engelbrecht. I think it was that testimony that was
filed that left no stone unturned about what we already
experienced.
Chairman Grassley. So let me get this straight. Attorney
General Holder announces an investigation into the IRS'
targeting of tax-exempt groups like yours, and 9 months later
it takes a congressional hearing for you to be contacted by the
attorneys at the Department of Justice. You just said ``yes''
to that.
Ms. Engelbrecht. Yes, sir.
Chairman Grassley. That is disgraceful. To your knowledge,
who did they talk to before they reached out to you?
Ms. Engelbrecht. Certainly we saw all over the news that
they were talking to Lois Lerner and others inside the
Department. I was in very regular contact with lots of other
leaders of other organizations that had been targeted. To the
best of my knowledge, no one has been contacted still by the
Department of Justice.
Senator Sessions. Mr. Chairman, I would note that the
Alabama Tea Party leader who was victimized has still not been
investigated, been interviewed, even though I directly asked
the FBI Director to do so a long time ago.
Chairman Grassley. Yes. Then so to date you have not been
interviewed by the FBI?
Ms. Engelbrecht. No, sir. They did ask about 9 months ago,
but it was upon the contention that they would be allowed to
have the Civil Rights Division in, and I was not willing to do
that because the Civil Rights Division had already been on
record opposing my organization.
Chairman Grassley. Okay. Well, I do not blame you for
declining to speak to the Department of Justice. If I had been
subjected to 15 audits and inquiries from four different
Federal agencies in less than 3 years, I would only want to
meet with neutral and fair investigators and certainly not a
person who had been appointed to do this investigation and who
also had an outstanding record as President Obama's campaign
donor.
One final question. Has the Department of Justice, or
anyone else for that matter, advised you why four powerful
Federal agencies descended on your doorstep?
Ms. Engelbrecht. No, sir. But I would sure like to know.
Chairman Grassley. Okay. Let me check with my staff whether
I call on Feinstein or Hatch first.
Okay, Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman.
I really appreciate what you have gone through. I cannot
say much about it because of 6103 Authority, but we are going
to get to the bottom of it.
Ms. Engelbrecht. Thank you, sir.
Senator Hatch. We have already gotten quite a bit to the
bottom of it.
I want to come back for a least a few minutes to thank this
panel of witnesses for contributing to the confirmation process
regarding Ms. Lynch's nomination. I am going to be a strong
supporter of her nomination, and I believe she is not only
qualified but exceptionally well qualified and a very good
person to boot.
I especially want to recognize David Barlow who is here
today, who served as a U.S. Attorney in my home State of Utah
for 3 years and before that worked on this Committee as chief
attorney for my companion here in the Senate, Senator Lee.
Professor Turley, welcome back to the Judiciary Committee.
Professor Turley. Thank you, Senator.
Senator Hatch. Yesterday I asked Ms. Lynch whether the
Attorney General has the duty to defend the constitutionality
of duly enacted laws if there are reasonable arguments to do
so. You discussed this in your prepared statement, and I would
like your comment on one specific issue that I raised.
Attorney General Holder did not decide never to defend the
constitutionality of the Defense of Marriage Act but to stop
defending its constitutionality. His own Justice Department
lawyers had already been making reasonable amendments defending
DOMA or this bill, and Mr. Holder decided to stop making them.
And that is what made me say that he has abandoned his duty. Do
you agree?
Professor Turley. I agree. I thought that the decision was
wrong. I happen to agree with the President. I was a critic of
DOMA. But I thought that the abandonment of the defense of DOMA
was inimicable to the rule of law. I thought it violated a
longstanding understanding with this body. You know, there is
history here, as you know. You are a student of the
Constitution, and you know that there has always been this
tension between the Congress and the Justice Department as to
who can be in court defending things of this kind. The Justice
Department has always insisted they are the exclusive
representative----
Senator Hatch. Had you been Attorney General, you would not
have stopped that.
Professor Turley. Oh, absolutely not. I would have defended
that law.
Senator Hatch. Even though you did not agree with DOMA.
Professor Turley. That is right. What is really----
Senator Hatch. The Defense of Marriage Act.
Professor Turley. And what is also troubling is that there
is no definition in the Attorney General's position as to when
they will abandon a Federal law. I happen to agree with the
criticism of the law, but there were plenty of people with good
faith arguments that it is constitutional, including people on
the Supreme Court. And if this is the standard for abandoning a
Federal statute, I could see a President doing this in a host
of different statutes.
Senator Hatch. You are right about that. I appreciate your
comments. I am also glad that your prepared statement discussed
the controversy over recess appointments. The idea that a
President has the authority to tell the Senate when it is in or
out of this or that sort of recess is astounding, and I am glad
the Supreme Court unanimously rejected the administration's
position on that matter.
In yesterday's discussion of prosecutorial discretion, the
administration's defenders repeatedly said that this is really
only about wisely using limited resources. You refer in your
statement to the ``ill-conceived litigation strategy of the
Justice Department'' defending this bizarre position on recess
appointments. I wonder how many resources the Department uses
pursuing these extreme positions in court that, as I said
yesterday, got shot down over and over again, some 20 times. Do
you agree?
Professor Turley. Absolutely. I testified before the
litigation, after the appointments were made, and I said that,
in my view, even though I thought very highly of the nominee,
the appointments were flagrantly unconstitutional. There are
close questions in the Constitution, in my view. This was not
one of them.
Senator Hatch. That is one of the reasons I admire you. I
mean, you are wrong on so many things, but you stand up----
[Laughter.]
Senator Hatch. And you are right on a lot of things, too. I
have got a lot of respect for you.
Professor Legomsky, your prepared statement refers to a
November 2014 letter from immigration law scholars. It states
that the President's action establishing the Deferred Action
for Parental Accountability program is ``within the legal
authority of the executive branch of the United States.'' But
didn't the Justice Department's own Office of Legal Counsel in
its opinion issued a week earlier conclude that, ``The proposed
deferred action program for parents would not be a permissible
exercise of enforcement discretion''? Even OLC, the Office of
Legal Counsel, which seems to be into efficacy rather than
analysis these days, disagrees with these scholars on this
issue.
Professor Legomsky. Senator, the OLC memo distinguished
between granting deferred action to those children who had
arrived at an early age on the one hand, and in addition
granting it to the parents of U.S. citizens and lawful
permanent residents, while at the same time suggesting that it
might not be legal to extend deferred action to the parents of
the DACA recipients themselves and----
Senator Hatch. All right.
Professor Legomsky. I do personally disagree with that
latter suggestion of OLC, but otherwise, I thought the memo was
very thoroughly and well articulated.
Senator Hatch. Okay. Sheriff Clarke, I want to personally
thank you for your advocacy and leadership for police people
all over this country and coming here today and giving your
testimony. As I observed the reactions to the incidents like
that in Ferguson, Missouri, I, too, became concerned about this
rhetoric and the broad-brush picture that seemed to be
developing about all law enforcement.
We heard elected officials claim that police officers
across the country were indiscriminately shooting Black men,
simply out of fear. Those incidents happened at the local level
and involved local law enforcement. How much do you think that
the Attorney General of the United States can affect the
situation, negatively or positively?
Sheriff Clarke. Thank you, Senator. A lot. The Attorney
General of the United States has a big stage, and when he or
she talks, people listen all across the country. And it gives
the impression that that is the policy of the United States
Department of Justice, and they have to choose their words
carefully.
Senator Hatch. Well, thank you.
Ms. Attkisson, I do not know what your politics are, but I
admire you greatly. You are what an investigative reporter
ought to be. And, frankly, your testimony here today has been
very profound, very strong, and it ought to wake everybody up
at the Justice Department and in the administration, and in all
administrations, both this one and any in the future.
So you are doing a great public service here and having the
guts to stand up and take the positions that you have. I have a
lot of admiration for you.
Professor Rosenkranz, during the hearing yesterday, I
acknowledged that prosecutorial discretion obviously involves
enforcement of resource allocation decisions in individual
cases. But I said, ``Applying that discretion across the board
to entire categories of individuals has the same effect of
changing the law itself.'' Do you agree with that?
Professor Rosenkranz. Yes, I do, Senator. It is not a clear
line that one can draw, but when you start to talk about
exempting millions and millions of people from Acts of
Congress, this looks a lot more like legislation than like
enforcement discretion.
Senator Hatch. Professor Legomsky offers the Supreme
Court's decision in Arizona v. United States to justify using
enforcement discretion in a categorical fashion. But the
Court's opinion uses the word ``individual'' more than a dozen
times.
For example, it discusses ``the power to bring criminal
charges against individuals'' and whether ``an officer has
probable cause to believe that an individual is removable.''
In fact, one of the quotes from the Court's opinion that
Professor Legomsky includes in his prepared statement says,
``The equities of an individual case may turn on many
factors.'' Does that support using discretion for individual
enforcement decisions in a categorical way which has the effect
of changing the underlying statute itself?
Professor Rosenkranz. I quite agree with you, Senator. I
think the traditional conception of prosecutorial discretion
has always been case by case.
Senator Hatch. Okay. Your prepared statement says that the
most important dimension of the Attorney General's function
``is to advise the President on the scope of his Executive
powers and duties.'' Does that function happen on a blank
slate? Or do the essential principles of our system of
Government actually counsel special attention to the limits of
presidential power?
Professor Rosenkranz. Quite right, Senator. I think the
core of that responsibility is for the Department of Justice
and the Attorney General in particular to think hard about the
meaning of faithful execution of the laws and to counsel the
President when he is close to the line of unfaithful execution.
Senator Hatch. In other words, is the Attorney General
there to find some plausible, theoretical justification for
whatever the President wants to do? Or is she there to enforce
the real, substantive limits on power that are necessary for
all of our livery?
Professor Rosenkranz. The Attorney General should help the
President to find legal ways to do what he wants to do, but at
the end of the day, it is essential for the Attorney General to
be able to say, ``No, Mr. President, that is something you
cannot do.''
Senator Hatch. My time is up. Thank you.
Chairman Grassley. Senator Feinstein.
Senator Feinstein. Thanks very much, Mr. Chairman. I am
going to be very brief.
This is really a hearing to discuss the qualifications of a
nominee--in this case, a very distinguished, very exceptionally
well-qualified nominee, on virtually any area that one can
state. I really do not want to see that diminished by a
critique by various people of the administration, and to me,
Loretta Lynch is an outstanding role model, not only for women
but for all of us in this arena, because as you can see, so
much of this arena has become so partisan that here is the use
of a hearing on the qualifications of a nominee to be used to
criticize the administration in areas that Loretta Lynch had
nothing to do with. I guess that is the coin of our realm here,
but I remember other nominations where, if the issue was
independence, where nominees fully admitted--and the Ranking
Member mentioned this--that they were a wing of the staff to
the President.
So I think we have a very special nominee in front of us,
very skilled, very determined, but most importantly, I think
she has used her life so well to be that combination of, what
was said by one newspaper, combination of velvet and steel, and
to see the impact of that on the strong support that she has
for all of us in this arena I think is a kind of role model as
how you--there are a lot of people that know how to separate
everybody. There are very few people that know how to bring
people together again and really develop a kind of consensus
that can lead us forward. And because this institution is so
split, the role of Loretta Lynch in this day and age I do not
think can be underestimated.
So the fact that when Senator Leahy asked the question--and
I forget how he put it--you know, which of you is in opposition
to Loretta Lynch, no one raised their hand. And I think it is
that way throughout the Nation. I think we should get on with
the business. We should see this woman confirmed as quick as
possible. Thank you very much. That is my statement, Senator
Whitehouse.
Senator Whitehouse [presiding]. Before I start claiming my
time, let me say where we stand in terms of what is going on
here, because the Chairman has just had to leave for a vote and
he has left me instructed that if Senator Lee arrives or if
another Republican arrives at the conclusion of my time, then
they will be recognized. But if no one else is here, then we
will recess at that point until 1:00 p.m.; is that correct?
Okay. Good.
Let me take my time to review the bidding where we are. No
witness present today opposes Ms. Lynch as the nominee for
Attorney General. Ms. Attkisson is here as a litigant against
the United States with her lawyer sitting beside her. Her
testimony never mentions the nominee. And I would ask,
actually, unanimous consent that the redacted version of the IG
report related to her claims be made a matter of record, which
without objection it will be.
Mr. Barlow supports the nominee enthusiastically. Reverend
Newsome supports the nominee enthusiastically. Ms. Fedarcyk, to
use her phrase, whole-heartedly endorses the nominee. Professor
Legomsky is here mostly to talk about immigration. His
testimony does not make clear whether he does or does not
support the nominee. May I ask you if you do?
Professor Legomsky. I certainly do. Thank you for asking,
Senator.
Senator Whitehouse. Very well. That is now clear.
Mr. Turley says that his interest today is not to discuss
Ms. Lynch as much as the Department she wishes to lead. But he
goes on to say that he has no reason to doubt the integrity and
intentions of Ms. Lynch, who displays obvious leadership and
strength of character.
Sheriff Clarke is here and wishes the nominee well. But he
goes on in his testimony to say, ``I want to spend some time
critiquing Eric Holder's tenure.''
Professor Rosenkranz takes no position on the nominee, but
comments on the tenure of Eric Holder; is that correct,
Professor?
Professor Rosenkranz. [No audible response.]
Senator Whitehouse. And Ms. Engelbrecht, have I said that
right? Ms. Engelbrecht is an advocate for voter identification
laws who would like Ms. Lynch to agree that voter
identification laws are not efforts to suppress voting but took
no specific position on the nominee; is that correct?
Ms. Engelbrecht. No specific position, sir. I have all the
hope in the world that----
Senator Whitehouse. Very good.
Ms. Engelbrecht. It will work out.
Senator Whitehouse. So let me say two things: one, some
many years ago George Washington set for himself what he called
his Rules of Civility and Decent Behavior. He wrote 110 Rules
of Civility and Decent Behavior to help him guide his own
conduct in upright and honorable ways. I think it was Rule 89
of those Rules of Civility and Decent Behavior that George
Washington kept that said the following: ``Speak not evil of
the absent for it is unjust.''
There are plenty of forums where the Attorney General would
have an opportunity to defend himself. This is not one. There
is no forum here, there is no opportunity here for Attorney
General Holder to answer these various charges that have been
made. I think that is fundamentally unjust. And I think it is
frankly beneath the dignity of this Committee at a time when we
have a very significant and solemn charge before us to
determine the fitness of a specific individual to be Attorney
General of the United States to launch a series of unanswerable
attacks.
I have no problem with the attacks. My problem is that
choosing this forum for them where the individual in question
has no chance to answer I think fails President Washington's
test that one ``speak not evil of the absent for it is
unjust.''
With respect to the other issues, I think we will have
plenty of time to ventilate those in other forums. I am sure we
will have plenty of time to address immigration, address voter
ID and voter suppression, address surveillance, address all of
those things. But, once again, in this forum, there is no
opportunity for another side to be presented. And I regret that
this hearing and this solemn occasion has been corrupted to
that extent and turned into what appears to be a sound bite
factory for Fox News and conspiracy theorists everywhere.
We actually have a nominee in front of us. She appears by
all measure to be a terrific person. I think we should get
about the business of confirming her and get about the business
of voting on her. And if people have the strength of view that
Attorney General Holder is not a good leader of the Department
of Justice, the very best way to act on that would be to
confirm Ms. Lynch as quickly as possible.
Now, I happen to disagree with that view. I am proud of
what Attorney General Holder has done and I would once again
reference that he did not inherit a Department of Justice that
was in good order.
The Office of Legal Counsel had written opinions that were
so bad and so discreditable that even that administration was
forced to withdraw them once they saw the light of day and
received peer criticism.
U.S. Attorneys of Republican and Democratic persuasions and
appointments alike rose in irritation and anger about the
effort to manipulate the United States Attorneys that exploded
into a scandal. There was that other creepy, midnight assault
on a sick Attorney General in the hospital when White House
lawyers came over to try to get his signature on a document and
thankfully now-FBI Director Comey put a stop to that nonsense
and ultimately the Attorney General of the United States was
forced to resign from that office.
So stepping into that mess--and there were plenty of other
features I could add--I think that Attorney General Holder is
entitled to great credit for having put that Department back on
its feet. I understand that he made decisions that people
disagree with. I, for one, believe that those decisions are
within the bounds of legitimate debate. I am not suggesting
that my colleagues need to agree with them, but I think to
personalize them so much as to say that it shows a moral or
personal defect on his part reflects really more the narrowness
of a specific ideology than any true judgment about the merit
of a man who has served his country as a United States
Attorney, as the Deputy Attorney General, as a Judge, and as
Attorney General with what I consider to be great distinction.
So with that I will conclude my remarks. I see my friend
and former Attorney General colleague, Senator Cornyn, is here
as well. So under the Chairman's direction, as I yield my time
it will go, as I understand it, to Senator Cornyn. Okay. I
yield my time.
Senator Cornyn [presiding]. Thank you. I would thank my
colleague whom I work with on a number of important matters. We
are working on some important prison reform legislation,
demonstrating that dysfunction has not taken over everything
here in Washington--that we can actually work on things even
though we have other differences.
But I just have to disagree with him, and I guess he
disagrees with himself, because while he criticized the
criticism of Attorney General Holder, he seemed to recall with
great clarity the problems with the Bush Justice Department, or
at least the things that he disagreed with. But that is the
great thing about the United States Senate and about our great
country, where all of us ought to be free to express our views
without fear, certainly of Government intimidation.
And, Ms. Engelbrecht, I am glad to see you personally, but
I find your testimony, once again, chilling and I admire your
courage. And it cannot be easy for a citizen to fight their
government with all the vast resources arrayed against you. And
I just want to assure you, you are not alone. And Senator
Hatch, who is Chairman of the Finance Committee which has
jurisdiction over the Internal Revenue Service, he's an
honorable man and I know you can count on his commitment as
well to get to the bottom of some of the matters that you refer
to, but particularly regarding the Internal Revenue Service. So
thank you again for your courage and your willingness to stand
up to, and I would say also, inspire a lot of Americans who
feel like Government has gotten too big and too intrusive and
is crushing the spirit and the voice of a lot of individual
citizens. So thank you for being here.
And, Ms. Attkisson, I have to tell you how much I am
chilled by what you have to say. When I was in college, I was a
journalism student before I lapsed into the law and became a
lawyer. But the idea that you would be targeted and surveilled,
intimidated, or attempt to intimidate you from doing your job,
and I know you are a skewer of power on an equal opportunity
basis. I can tell, from some of your testimony, you are not
picking sides, but you are trying to do your job and it is
repugnant to me that Government should try to array its power
against the freedom of the press to intimidate people like you.
And I appreciate the fact that you are not intimidated.
I told Senator Leahy, whom I partnered with on a number of
Freedom of Information reforms, he and I are the Senate's odd
couple when it comes to that, people who ideologically are
bookends, but who agree in the public's right to know, and
certainly we want to work with anybody who has got a good idea
how we can make the system better. So I welcome that
opportunity.
I just want to say that Ms. Lynch appears to be an
outstanding example of the American dream and somebody who has
got a distinguished career as a United States Attorney. The
challenge is--for her and for everybody who takes on a job as a
member of the President's Cabinet--is you are no longer just a
prosecutor, you are somebody who is responsible for
implementing policies, implementing policies of this President.
And that has been the subject of a lot of discussion here
today. And as I told Ms. Lynch privately, you have got two
choices. You can take the job and implement the policies, or
you can say, ``Mr. President, I think what you are trying to do
is improper, even illegal, unconstitutional'' and quit, or not
take the job in the first place. I do not see any middle ground
on any of that.
And while I have the same reaction to Ms. Lynch's testimony
that I had to Sarah Saldana's testimony, who was a United
States Attorney from Dallas, Texas, whom Senator Kay Hutchison
and I recommended to the President for appointment, and who is
now the Director of Immigration and Customs Enforcement, I told
her the same thing: You were a prosecutor, you have done an
outstanding job, but now you are going to be in a policy
position where you are going to be asked to implement policies
that I disagree with and you may in fact disagree with. So you
will be left with that Hobson's Choice.
So while I hear some of my colleagues talk about the
independence of the Attorney General, well, it is perhaps some
independence, but it really is the independence of one's
personal conviction not to cross that line and to be able to
tell even somebody as powerful as the President of the United
States ``no'' when he's gone too far. Professor Rosenkranz, I
would be interested in your views on whether you think the
Attorney General can truly be independent.
Professor Rosenkranz. Well, I do not think ``independence''
is quite the right word. The Executive power is all vested in
the President and that is as it should be. But the President
has delegated to the Attorney General the function of advising
him on legal issues. And that gets delegated again to the
Office of Legal Counsel. And it is crucial for that function to
be performed with as much integrity and independence as
possible.
At the end of the day, the President can disagree with the
Attorney General, can overrule the Attorney General, can even
fire the Attorney General. But it is essential for the Attorney
General to say ``no,'' if necessary, to say, ``Mr. President, I
have explored every legal option, and this is something you
cannot do. This violates the Constitution.''
Senator Cornyn. Professor Turley, I know that Senator
Grassley asked you questions about your representation of the
United States House of Representative in a lawsuit. As you
probably know, there is also a lawsuit pending in Brownsville,
Texas, brought by 26 different States challenging the
President's Executive action that we have been discussing here
this morning. And obviously, any lawsuit that is brought, the
plaintiff has to establish standing to sue a claim of harm to
them and not to the public generally. I remember that much of
my law school.
But my point is, the policies of the Federal Government
have a direct and very negative impact on State and local
governments and on citizens who live--particularly in border
States like mine--where just not that long ago we had what the
President himself called a humanitarian crisis. Tens of
thousands of unaccompanied children coming from Central America
drawn by the magnet of a promise that if you can make it here,
you are going to be able to stay here, something that a lot of
people would like to do.
So I am not going to ask you to opine about the merits of
that particular lawsuit. The judge there will probably make a
decision here in the coming weeks, but do you see anything
inappropriate about people who are aggrieved or suffering harm
as a result of the actions by the President of the United
States going to court and asking the court to make a decision?
Professor Turley. No, I do not. But I have long been a
critic of the current standing doctrines that have been
developing over the years. I think Walter Dellinger put it best
when we testified in the House recently together and he said
that he had spent his career as a standing hawk. And I have
spent my career as a standing dove in that sense. I actually
believe that it is important to give access to the courts,
particularly for States. I think it is rather absurd to say
that States have effectively no skin in the game, that they
have no injury when you have these Federal pronouncements
essentially coming down and imposing considerable costs upon
them. And I think that you really see it in a sharp relief when
these States have trouble even being heard on the merits.
And so when we look at all of these cases in terms of the
effort to keep the merits from being heard, I think that has a
really dysfunctional effect. I think that is one of the reasons
we are seeing so much chaos--is the lack of definition in the
separation of powers and these constitutional rules. That can
be rectified if we give greater access in the courts.
Senator Cornyn. Well, of course, from my perspective,
coming from Texas, I see the policies of the Federal Government
particularly with regard to immigration as having a very direct
and real impact on taxpayers and citizens who are forced to pay
the price in terms of healthcare, education, law enforcement,
and the like, and they really have no recourse because they do
not have the ability to do that for ourselves, something that
is committed in the Constitution to the Federal Government's
responsibility. And when the Federal Government does not do its
job, the Federal Government does not necessarily feel the
negative impacts; it is people who live in those places like
Texas where it is very real.
I want to just maybe ask one last question and not to get
too far down in the legalese, but Ms. Attkisson, as a result of
the investigations that have been done here in Congress on the
Fast and Furious gunwalking debacle, we were met with a claim
of executive privilege by the Attorney General that was then
embraced by the President of the United States even though
there was no indication whatsoever that the President or higher
level people at the White House were actually involved in this.
But, could you just describe the sort of obstacles that you
have run into in the course of your investigation of the Fast
and Furious scandal?
Ms. Attkisson. Well, some of this, which is already sort of
in the public record, when I began covering this story, the
Justice Department employees put out internal emails that said
the story was false and the whistleblowers were not telling the
truth, which we now know it has been proven they were and the
Justice Department has admitted it. But they put out a series
of false implications and information along the way. They
launched a campaign in my view of calling superiors, bosses,
colleagues, social media using the bloggers that cooperate with
them and work with them, in some cases directly, to disparage
the reporting as if it were not true, repeating the false
talking points in many cases.
And it was, you know, an all-out effort to try to chill the
reporting and to stop other reporters that might be pursuing
it. You can see from internal emails that have recently been
released--after a lawsuit has been filed--that were withheld
under executive privilege, the extent of the lengths to which
public affairs officials inside the Government went to try to
stop this line of reporting on a story that they clearly
thought was proving to be very damaging for them.
Senator Cornyn. Thank you. I am advised that another roll
call vote has been called on a series of votes that we are
having on the floor of the Senate. So at the request of the
Chairman, the Committee will stand in recess until 1:30.
Thank you.
[Whereupon, at 12:02 p.m., the Committee was recessed.]
[Whereupon, at 1:41 p.m., the Committee reconvened.]
Chairman Grassley. I want to thank everybody for
understanding the chaotic way the Senate is run when we have
all these votes and we have this important issue before us of
who should be the next Attorney General. So thank you all for
your flexibility, as well as my Members.
Before we turn back to questions, I want to take a moment
to comment on some criticism that we heard this morning from
one Member on the Democratic side about some of the witnesses
who are here today in this hearing.
I will not speak for any other Member of the Committee, but
I, for one, find it absolutely disgraceful how our Government
has treated some of our fellow citizens; and the Department of
Justice, under its current leadership, has failed--really
failed--to meet some of its most basic responsibilities.
Every single one of these witnesses, every one of them,
speaks directly to Ms. Lynch's nomination, because the question
in my mind is, as I stated yesterday, will she take these flaws
seriously? Will she fix them? And I note that it was not too
long ago that Democrats agreed that it was perfectly
appropriate to call witnesses to address what they viewed as
problems at the Department.
So I would note to the naysayer on the other side of the
aisle, it was not beneath the dignity of the Committee when
they were in charge, so why would it be now? And I would make
reference to Judge Mukasey's hearing before he was approved to
be Attorney General. The other side called witness after
witness who testified regarding issues that occurred at the
debarment while he was serving as a Federal judge in the
Southern District of New York.
So, for instance, maybe it does not bother you that the IRS
targeted conservatives and the Department does not seem to have
taken the issues seriously, but it bothers me a great deal, and
I want to know if Ms. Lynch is committed to tackling this
problem and a range of others.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
And the Office of Attorney General is a big deal, and we
need people who are able to take questions. The Department is
entitled to be criticized and they are not perfect.
And I love the Department of Justice. I served in it 15
years. I was an Assistant United States Attorney for over two,
and United States Attorney for 12, and I loved that job and I
loved the people in it, and I so admired this Department. And
as I told Ms. Lynch in private conversation, you have to
understand the reputation of this great Department is being
eroded. The situation is not good in this country. It has got
to be re-established. We are not going to allow this to become
a political body that just conducts its work in haphazard,
political, reactive ways.
And I think Senator Hatch raised one of the questions that
still galls me, and that is the failure to defend DOMA, the
Defense of Marriage Act. That was a defensible act, and
everybody that has ever been Attorney General or in such an
office knows you have a duty to defend the laws passed by
Congress. That is the Attorney General's duty.
Eric Holder and President Obama failed to do so, and it was
shameful and disgraceful, an abandonment of the rule of law.
And more and more people understand that. So I am not happy
about what has happened to my Department of Justice.
And Ms. Englebrecht, I think it should be investigating
these matters. They have not yet contacted people in Alabama,
and I specifically requested it. Is this politics? Why not? Do
you not go to the victims first--that is my experience--and get
their story?
Well, Professor Turley, I thank you for your comments on
what is happening with regard to executive overreach and
congressional weakness. I think it is a--I know we all--you
know, I do not deny that I am a Republican conservative, but I
believe this is not a--just a partisan matter.
I mean, this is a huge erosion of constitutional powers of
the United States Congress when the President of the United
States, in contradiction to law, gives lawful status to people
who are here unlawfully under the law, and not only that,
creates a Social Security number for them, a photo ID, and an
authorization to work and a right to participate in Social
Security and Medicare. I mean, this is a stunning event, and we
are in denial here, a lot of people, about the seriousness of
it.
So I wanted to ask you about your testimony in the House.
You say this: ``The center of gravity is shifting and that
makes it unstable''--and you are talking about the separation
of powers--``and within that system you have the rise of an
uber-presidency. There could be no greater danger for
individual liberty, and I really think that the Framers would
be horrified by that shift, because everything they have
dedicated themselves to was creating this orbital balance, and
we have lost it. It is not prosecutorial discretion to go into
a law and say an entire category of people will no longer be
subject to the law. That's a legislative decision.'' And you go
on at great--that is just a portion of your--I think, correct
dissection of the fundamental issues at stake.
Would you--I guess you stand by that? Do you have any
further comments you would like to make on that subject?
Professor Turley. Well, I certainly do stand by it. The
interesting thing about the Madisonian system that we have is
that--is the three branches are effectively locked in an orbit,
like three bodies. In fact, the interesting thing about Madison
is he was fascinated by Newton and the types of ways that
bodies would interact. And our system reflects that.
And what happens is, if you have a tripartite system that
is based on a principle of balance and then you introduce a
dominant branch, it does not just fall out of kilter, it
creates a very dangerous circumstance.
There are many legitimate questions that come out of the
Constitutional Convention, but the one thing that returns over
and over again is the collective view of the Framers--
federalist and anti-federalist--that the thing we have to fear
most in this system is the rise of a concentration of power in
one individual. And they knew a lot about it, because they had
just gotten rid of a person who had that type of concentrated
power.
Senator Sessions. King George.
Professor Turley. Exactly.
Senator Sessions. And I had the Congressional Research
Service look at that matter of fact, and they concluded that
King George III--at the time of the American Revolution--was
unable to enact or repeal any laws without the approval of
Parliament. And this was the heritage we had from the British,
and that is what part of the Revolution was about. It is a
fundamental principle of the formation of our Government that
the Executive does not get to make laws. And I appreciate that.
Professor Rosenkranz, briefly if you do not mind, do you
agree with that, that we are at--I think Professor Turley once
said--a tipping point in the question of Executive and
legislative power, and it is a matter of grave importance to
the republic?
Professor Rosenkranz. I think it is certainly a matter of
grave importance, and I think we have seen dramatic examples of
executive overreach in the last several years, things that are
unprecedented, things we have never seen before.
Senator Sessions. Well, and do you agree with Professor
Turley that one of the most significant overreaches is the
President's Executive actions with regard to amnesty?
Professor Rosenkranz. Yes, I absolutely do. I think it is
inconsistent with his obligation to ``take care that the Laws
be faithfully executed,'' in particular, the Immigration and
Nationality Act.
Senator Sessions. Well, it seems to me that they are
arguing that ``take care that the laws be executed'' means you
have to do the best you can to enforce the laws under the
circumstances, which has some legal basis. But in truth, don't
they go well beyond that and create whole new laws that are not
even on the books? They are not authorized to do that, are
they?
Professor Rosenkranz. You are quite right. This action
looks a lot more like a legislative action than like Executive
discretion.
Professor Legomsky. Senator, may I jump in and comment on
that, please?
Senator Sessions. Yes.
Professor Legomsky. Thank you. We have heard a lot of very
broad, general statements to the effect that separation of
powers is important, which of course it is. That the President
is not above the law, and of course he is not. But I have yet
to hear any specific rebuttals to the points that I was making
earlier about the specific sources of authority that Congress
has provided.
We do have this legislation which specifically says it is
the responsibility of the Secretary of Homeland Security to
establish ``national immigration enforcement policies and
priorities.'' And not only that, but Congress has specifically
directed the administration to prioritize three things: border
security, national security, and the removal of criminal
offenders--and those are precisely the priorities reflected in
the recent Executive actions.
Senator Sessions. Well, I appreciate that, but I do not
agree. Congress laid out 500 pages of detailed law involving
immigration. Many of them are mandatory, and they are not being
followed. And we had the--yesterday, Professor Rosenkranz, I
asked Ms. Lynch who has more right to a job in this country, a
lawful immigrant who is here, a citizen, or someone who entered
the country unlawfully? And her answer: I believe that the
right and obligation to work is one that is shared by everyone
in the country, regardless of how they came here. And certainly
if someone is here, regardless of status, I would prefer they
would be participating in the workplace.
Do you think that contradicts immigration law of the United
States?
Professor Rosenkranz. I do think this work authorization
aspect of the President's action is perhaps the most troubling
aspect of it. The traditional view of prosecutorial discretion
is inaction; it is the President deciding not to do something
to someone. But this affirmative action of giving folks
permits, that is something that is unheard of in traditional
prosecutorial discretion.
Senator Sessions. I agree with that. As a prosecutor, I
know what prosecutorial discretion is. Everybody that has to
deal in the real world uses that on a case-by-case basis.
And I further asked her: I want to have a clear answer to
this question, Ms. Lynch, do you believe the Executive action
announced by the President on November 20th is legal and
constitutional, yes or no? And Ms. Lynch said: As I have read
the opinion, I believe it is, Senator.
So we are being asked here to consider her nomination. Mr.
Rosenkranz, when we decide who to vote for in the United States
Senate to confirm somebody to the United States Cabinet, do you
think it would be improper for the voting body, the United
States Senate, to consider whether or not we believe that
person will be an advocate for and a supporter of laws we think
are unconstitutional and offend the policies Congress has
established? Should we consider that when we decide who to vote
for?
Professor Rosenkranz. I think that is absolutely the sort
of thing that you should be considering, yes.
Senator Sessions. Well, I do too. And I believe Congress
has a duty to defend its legitimate constitutional powers. It
has several powers of its own. One of them is the power of the
purse; one of them is the power of confirmations.
I do not see any need for this Congress to confirm somebody
to be the chief law enforcement officer of this Nation who is
at that table insisting that she intends to execute a policy
that is contrary to law and to what Congress desires and what
the American people desire, and says that someone here
unlawfully is as much entitled to a job in this country as
somebody who is here lawfully. It is just beyond my
comprehension. Are we through the looking glass? Can't we see
plain fact?
So everybody wants to talk about the politics. Well, the
President can do this; he's shutting down Homeland Security.
All these complaints. But the real question is fundamental:
What are we going to do to defend our constitutional heritage?
And what will this Congress be able to say to subsequent
Congresses if we acquiesce in these kind of activities? I think
it has permanent ramifications for the relationships of the
branches of government.
Mr. Chairman, you have got a meteoric rise there, I see. I
am impressed.
[Laughter.]
Senator Sessions. But I have got to say, no one could
handle it better. I am proud of you.
[Laughter.]
Senator Sessions. I am over my time. Thank you very much.
Senator Lee [presiding]. Thank you very much, Senator
Sessions. And thanks to all of you for joining us today. I
deeply enjoyed your testimonies this morning before we had to
go and vote, so thank you for being here. Thank you for sharing
with us your opinions, which are helpful and informative.
I want to begin my remarks just by commenting on some
concerns that I have heard expressed from my colleagues on the
other side of the aisle. Some have suggested that what we
really ought to be doing here should be focused almost
exclusively on Ms. Lynch's impeccable public service record and
on the fact that she has served her country well, has served
her clients well, that her resume is not just amazing, but that
it is extraordinary--and it absolutely is; that we ought to be
focused on those kinds of qualifications and that we ought not
be focused on the Department of Justice and on some of the
things that are going wrong with it.
I have a somewhat different view of that in that I think
both are relevant. For example, if we were running a company,
if we were running a business and we were looking for a new
CEO, if we were looking perhaps more appropriately for a
general counsel, we would probably want to know what someone's
view of the organization as it existed might be. We would
probably want to know whether that person acknowledged the
problems within the company, whether they were legal problems
or other types of problems that the company faced.
So I think we are kidding ourselves if we suggest that we
should not ask a nominee, someone who has been nominated to be
the Attorney General of the United States, about problems
existing within the U.S. Department of Justice. I think that is
absolutely essential. And previous hearings in this Committee
have borne that out--previous hearings in this Committee where,
for example, this Committee reviewed Michael Mukasey after he
was nominated to be the Attorney General of the United States
in the last presidential administration. I think those hearings
bore that out.
Now, yesterday we heard from Ms. Lynch. I am very impressed
with her legal abilities, with her analytical abilities. Very
impressed with her resume and her strong record of public
service. I was, however, very disappointed yesterday in the
fact that in response to many hypothetical questions that were
asked of her, we did not get a straightforward response,
particularly when it comes to excesses of Executive power,
particularly when it came to questions about prosecutorial
discretion and so forth.
For those of you who may be watching this hearing who are
not burdened with a law degree, hypothetical questions are the
bread and butter of the American legal education system. To a
very significant degree, especially in appellate litigation,
they are the bread and butter of the practice of law.
One thing that I think all of us were taught in law school
is that even when you do not want to answer a hypothetical
question, even when it does not have an easy answer, you need
to try to answer the question. If you do not, the judge will be
very unhappy. I was disappointed yesterday that when I asked
some questions of Ms. Lynch, she refused to give me a direct
answer.
In an attempt to try to elicit an answer from her, I made
the hypothetical increasingly simpler, increasingly clearer,
asking questions like the following: Imagine a hypothetical
State in which there is a 55-mile-an-hour speed limit. Imagine
that the public is crying out for relief from that law; there
is pretty widespread agreement that the speed limit ought to go
up at least to 65, maybe to 75, and that within the legislature
there is also widespread support for that. But the legislature
cannot agree on the exact speed limit to which it ought to be
increased. So the governor, seeing an opportunity, then says,
well, I am just going to come out with a new policy, and my
policy is going to say if you want to exceed the 55-mile-an-
hour speed limit, all you need to do is write to the governor's
office and I will send you back a permit, a permit that says
for the next three years, while I am the governor, I will not
give you a ticket if you drive faster than 55 miles an hour, as
long as you do not go faster than 75.
And I asked Ms. Lynch: Would that be appropriate? Would
that be consistent with the rule of law? Would that be an
appropriate exercise of prosecutorial discretion?
I did not get what I perceived to be a direct, one-word
answer out of that, nor did I get a five-word answer out of it.
I did not get an answer that I thought was satisfactory. What I
did get was a response that said: I would really need to know
more about that. But the more facts I added to the
hypothetical, the more assumptions I added to it, it did not
seem to make a difference.
So let me start by asking two of our professors who we have
got here, Professor Turley and Professor Rosenkranz, is that,
in your opinion, a difficult hypothetical question, such that
if a student in either of your classes refused to answer that
hypothetical or said it was too hard, would that be an
appropriate answer that you would accept in your class?
Professor Turley. No, I would not accept it. I think that
it is a straightforward question. I also think the question of
whether--or, what the rule would be for the defense of Federal
statutes yesterday was also a question that should be able--
that someone should be able to answer.
I also commend you, Senator, on your view of confirmation
hearings. Too often people talk about these hearings as sort of
job interviews where you just look at the credentials. These
hearings have a very significant role for separation of powers.
As agencies become more independent, this is the moment that
Congress tends to get answers to questions--is when you are
looking at someone who will head the agency. And as I have said
in my academic writings, it is not often enough that Senators
use these hearings to try to rebalance or at least get answers
from agencies, particularly one like the Department of Justice
that has been so difficult to get material or answers from.
Senator Lee. I appreciate your thoughtful response to that,
and I want to get back to that in a moment. I have just been
informed of an error. No sooner had I taken the temporary gavel
in this Committee hearing than I discovered that Senator
Blumenthal was actually supposed to be next at bat. So my
apologies for the error. We are going to push pause on my
questioning, and as soon as Senator Blumenthal is ready, we
will turn the floor over to him, then we will resume with me in
a moment.
Senator Blumenthal.
Senator Blumenthal. I really appreciate that, Mr. Chairman,
and----
Senator Lee. My apologies for the error.
Senator Blumenthal [continuing]. Like our friend Senator
Sessions, I applaud your meteoric rise--within limits.
[Laughter.]
Senator Lee. Thanks for the clarification.
Senator Blumenthal. But thank you for your courtesy and
your deference.
I would like to ask Professor Legomsky to expand, or
explain a little bit, why the examples involving enforcement of
the speed limit may not be really an exact or valid comparison
to what we have here.
Professor Legomsky. Thank you, Senator. I think it was a
fair hypothetical to throw out, but I definitely feel that
there is no simple answer, mainly because there are two pieces
of information we would certainly need. The big thing is that
every statutory structure is different, and so the first thing
I would want to know is what does the State statute say? How
much discretion does it actually give the executive branch to
set highway safety priorities?
In the case of the Executive actions we are comparing it
to, for example, again, as I mentioned earlier, Congress was
very specific. It gave the Secretary the explicit authority to
establish national priorities and policies, and in addition
even indicated what those policies and priorities are.
In addition to that, the other point I would make is that
it matters what the particular priorities are. They have to be
rational in one way or another. I think most Americans, if
asked, would say the President's priorities look like pretty
much common sense to me.
He's prioritizing national security, border security, and
the removal of criminal offenders over the destruction of
American families, the destruction of long-term community ties
by people who have otherwise lived peaceful and productive
lives in the United States. And since you cannot do everything,
because the resources are limited, those strike me as
reasonable priorities. I would ask the same question with
respect to the speed limits. It has the----
Senator Blumenthal. So maybe the comparison would be more
like the governor of Utah deciding that on a flat straightaway
in the middle of the State that going over the 65-mile-an-hour
speed limit would not be enforced unless the person was doing
something in addition dangerously, like weaving back and forth,
but in more congested areas, that the 65 speed limit would be
enforced rigorously.
In other words, defining other characteristics, not just
saying we are not enforcing this law.
Professor Legomsky. I think that is an excellent point,
Senator, with all respect. And that is very analogous to what
the President has done with his recent Executive actions
because, as you know, both the prosecutorial discretion memo
and the recent DAPA memo draw all kinds of fine gradations. And
that I think accommodates the point that you were just making.
Senator Blumenthal. And just to clarify, there has been a
suggestion that the President's exercise of discretion does not
permit case-by-case decision-making. In other words, that it is
a broad, across-the-board exception for all cases. But in fact,
what the President's doing is really an exercise of delegation
of discretion, prosecutorial discretion, for case-by-case
decision-making. Is that a fair characterization?
Professor Legomsky. I think that is a very fair
characterization. I am thrilled to have the opportunity to
answer that question, because that is something that has
concerned me a great deal about some of the criticisms that
have been offered.
The Secretary's memo says not once, not twice, but over and
over again, that officers on the ground are instructed to look
at the facts of each individual case, to evaluate them on an
individualized basis, and specifically to exercise their
discretion. Not only that, but as I mentioned this morning, the
form that the USCIS adjudicators are required to use when they
deny a DACA case lists the possible reasons for denial and it
specifically lists exercise of discretion.
There was one other thing I was going to mention, and that
is that if anybody doubts that these instructions are actually
being obeyed, more than 32,000 denials have already occurred on
the merits. This does not count things that are rejected at the
lockbox for a failure to pay a fee. These are actual denials on
the merits.
And I must say--and I hope this does not sound snarky,
because I really do not mean it that way--that I worked at
USCIS for two years, and I can assure everyone in this room
that the USCIS adjudicators are not a corps of open-borders
advocates who are looking for ways to systematically disobey
the Secretary's explicit instructions. They take their job
seriously, and they do exercise the discretion the Secretary
has told them to.
Senator Blumenthal. I appreciate that clarification. Of
course, I would invite any of the other panel members to
disagree if they wish to do so. But before my time expires, I
would just like to clarify a point that was made earlier by my
colleague and friend, Senator Sessions.
Loretta Lynch, I think yesterday, clarified that she does
not believe there is a Federal right to work for immigrants who
are not in a lawful status. I believe that the record will show
that she did clarify that point.
And with that, if any of the other panelists want to
comment on the question that I raised earlier, I would invite
you to do so.
And thank you for your explanation, Professor.
Professor Rosenkranz. Well, Senator, I guess I would just
say I think the proof is going to be in the pudding. But people
who have looked at this, at the structure of the proposed
policy--it appears that the case-by-case discretion that is
built into this policy may well prove to be largely illusory.
Senator Blumenthal. And I think you have just really hit it
on the head. You just really hit it on the head, that the proof
will be in the pudding as to what actually is done--as it is
for every prosecutor. As a U.S. Attorney, as a State Attorney
General, if I had decided I was not going to enforce any law,
rightly I would have been criticized. And the proof will be in
the pudding. In the same way as I had to make prosecutorial
decisions, as every former prosecutor, as a member of this
panel--and at least one is here now--it will be in what the
record shows.
And we do not disagree if, in fact, the result is to make
an across-the-board, wholesale, unexceptional rule; that would
be wrong. If the President decides as a matter of his
discretion that across the board this--these laws are not going
to be enforced, I agree with you. And when you say it is
illusory, it will be--the proof will be in the pudding.
Professor Rosenkranz. Well, Senator, I do think we can try
to evaluate the proposed policy just on the terms of the
proposal, and I think there is reason for skepticism, even as
the policy has been proposed. But you are quite right; the
facts will develop on the ground.
Senator Blumenthal. Thank you. Thank you, Mr. Chairman.
Senator Lee. Thank you very much, Senator Blumenthal.
Let us sort of pick up where we left off. I want to
respond, first of all, to a couple of those points that I think
are relevant.
With respect to the straightaway in Utah, this is somewhat
familiar to us. We have these salt flats in Utah where they
take cars out that can go hundreds of miles an hour. I assume
he means a straightaway on a national or State road.
But there is a difference between deciding not to post a
police officer there and issuing a permit saying you may exceed
the speed limit and if you are caught going up to 75 miles an
hour, even though that is in excess of the lawful posted speed
limit, you will not get a ticket. There is a distinction there.
There is, moreover, the fact that another hypothetical
question that I brought up that I was disappointed that she did
not agree to address head-on was one involving a hypothetical
future President, maybe a Republican, maybe a Democrat, I do
not know, but somebody who decides, you know what, I do not
like our top marginal tax rates and I think it is morally wrong
to enforce a marginal tax rate above 25 percent at the top
marginal rate. So I am going to issue a series of letters to
people, request them, saying you can pay at the 25 percent rate
and no higher and nothing is going to happen to you.
I agree, moreover, Professor Legomsky, that something more
like the answer that you provided would have been helpful. I
did not have even that and had she provided that answer, we
could have then gotten into a deeper discussion about whether
or not Congress has, in fact, done this or whether or not
Congress did, in fact, based on analysis of the text, create
something that could create an exception to allow many, many
millions out of the, I do not know, 11 million or 12 million
people who are estimated to be inside the United States
illegally--did Congress really create something that could
create an exception that potentially swallowed the rule or
comes very, very close to it.
Let us turn now to Professor Rosenkranz. You have not had a
chance to chime in on this issue. Tell me what you think about
my hypotheticals. What would you do if somebody in your class
refused to answer it?
Professor Rosenkranz. I was just going to say, Senator, I
think your tax hypothetical is exactly right and
indistinguishable from the current situation. I do not
understand a principled way on which to distinguish those two
cases.
I would think a Republican President would be absolutely
within his rights to cite this precedent and do as you suggest,
if this were constitutional. I think it is not.
Professor Turley. Senator, I should clarify that we are
more demanding at GW than at Georgetown in terms of how our
students answer questions.
[Laughter.]
Professor Turley. So you have to put that into your
consideration.
Senator Lee. Good. Good. I hope you make that clear on your
applications to law school, too, about how demanding you are.
[Laughter.]
Senator Lee. Everybody hates, especially in their first
year of law school, to get called upon in class. Another point
that I think deserves to be mentioned here is that within this
framework there has been discussion of the fact that there
remains some discretion on the part of our immigration
enforcement authorities in this country, even after the
November memorandum, even after DACA and DAPA and so forth.
It is different than the way prosecutorial discretion
normally works. The way prosecutorial discretion normally works
is that you say we have got finite resources, we are not going
to prosecute everybody. We are going to sometimes not do it
because perhaps we think the circumstances of the case do not
trigger any kind of moral outrage and we are just not going to
go in that direction.
There is also just the practical reality effect. You are
not going to be able to get everybody. But that operates as an
exception to the normal rule that if you break the law, you can
expect that prosecution is at least some possibility.
Whereas here, even to the extent you can say that there
might be some discretion to decide not to enforce the law, they
still make clear, these presidential--these Executive decisions
still make relatively clear that they intend, as long as these
criteria are satisfied, to not enforce the law, that they are
not going to enforce the law, and they do issue documents
saying you may work.
So I refuse to accept this as just an act of either
ordinary garden variety prosecutorial discretion and I also
refuse to accept as an article of faith the fact that Congress
would have ever--would ever or did, in fact, in this
circumstance give so much discretion to the President of the
United States, to the Attorney General, to the Secretary of
Homeland Security so as to create a loophole that could swallow
a very substantial chunk of the entire rule.
This is just not consistent with the way the Constitution
of the United States has historically functioned.
I am getting back to how I opened. I do think that these
are relevant questions. Yes, they are different in kind than
the kinds of questions that deal with someone's resume or
someone's professional qualifications, but we are looking here
at a very specific kind of job, someone who is taking the role
as Attorney General of the United States.
We have seen--we have heard testimony from several of you
today that this is a Department that has some real serious
problems right now, problems that really make the hair stand up
on the back of my neck sometimes, and that was reiterated today
with some of the testimony that I heard.
So I walked into that hearing yesterday wanting, hoping,
frankly expecting to really like Ms. Lynch, and I do like her,
and she met with me in my office before the hearing and I liked
her. I expected that I might be able to go either way on this,
that I might well end up supporting her.
I did not feel comfortable at the end of the day yesterday
with the idea that I could vote for her because of the fact
that I did not get answers to questions that I find very
troubling. And I found it a somewhat cavalier answer, a
somewhat cavalier response to suggest that she needed more
facts when some of these were very basic questions.
I see my time has expired. Do we have any Democrats here?
Just making sure we did not have anybody in the anteroom. I am
told that Senator Cruz is next at bat.
Senator Cruz. Thank you, Mr. Chairman. I want to thank each
of the members of this panel, a very distinguished panel to
come together and address some very important issues facing
this country.
I want to, at the outset, extend my apology that earlier in
the hearing, the Senator from Rhode Island characterized the
testimony that we have heard from witnesses on this panel as
``conspiracy theories and sound bites for Fox News.''
I do not think that is an accurate characterization of the
learned testimony that this panel of witnesses has given to
this panel and I apologize that you are subjected to having
your character impugned in that manner by a United States
Senator.
I think this panel has focused on some very important
issues, issues that need to be highlighted. I would note that
Ms. Engelbrecht is a constituent of mine and a friend. I have
long thought highly of your commitment to public engagement,
your volunteer efforts to make a difference in our political
discourse.
I wanted to ask you, as a citizen who engaged in the
political process, how did it make you feel to be targeted by
the Government for persecution?
Ms. Engelbrecht. It takes your breath away when you do not
know quite where true north is and it begs the bigger question
of what is this country really and where am I raising my
children, where is their safe harbor. And that is why I think
that this panel and these questions that we are discussing here
today are critical. We have to understand what we have just
come through, what we are still in, if we know where we want to
head, and I hope we want to head in a decidedly different
direction.
Senator Cruz. It was some decades ago that President
Richard Nixon attempted to use the IRS to target his political
enemies. He did not succeed in those attempts, but he was
nonetheless roundly decried in a bipartisan manner.
In this instance, the attempt, sadly, bore fruit and it has
been well over a year since the news broke.
Let me ask you, Ms. Engelbrecht. Do you feel, in the over a
year that has transpired, do you feel that the truth has been
uncovered and that justice has been served?
Ms. Engelbrecht. Oh, no, absolutely not. Just the fact
alone that I have still not been interviewed or met with nor
have any of the other groups that I know of that were part of
this targeting scandal, how you can continue on under this ruse
that that is ever going to arrive at any kind of conclusion is
mystifying to me.
We seem to continue to find more and more evidence and it
continues to get further and further buried until I guess they
hope people just forget, and that is why I keep showing up. I
hope they do not forget.
Senator Cruz. Yesterday I asked Ms. Lynch if she thought it
was appropriate to have the Department of Justice investigation
into the IRS targeting and abuse of power led by a major Obama
donor and Democratic donor who has given over $6,000 to
President Obama and the Democratic Party, and she said she
found nothing objectionable about that and she flat out refused
to appoint a special prosecutor, much as Eric Holder has
refused to appoint a special prosecutor.
Let me ask you, as a citizen, do you have faith in the
impartial administration of justice with an investigation being
led by a major Democratic donor?
Ms. Engelbrecht. I take so much exception to that
appointment and to the way that that division has conducted
itself that I, quite frankly, do not even know where to begin.
Yes, I think that there is an awful lot wrong with it and
it is just sad that they are not held to account to explain
their actions.
Professor Rosenkranz. Senator, I might just mention a
constitutional dimension of this particular scandal.
Discriminatory enforcement would have horrified the Framers,
and this kind of discrimination would have horrified them more
than any other: discrimination on the basis of politics.
The single most corrosive thing that can happen in a
democracy is for incumbents to use the levers of power to
stifle their adversaries and entrench themselves. It casts
doubt on everything that follows.
So it really would have been their deepest, deepest concern
constitutionally.
Senator Cruz. Thank you, Professor Rosenkranz. I certainly
agree with that observation and I would note that
discriminatory prosecution is often intended to have the effect
and, in fact, has the effect of stifling further speech.
Ms. Engelbrecht, have you heard concerns of other citizen
activists that perhaps they should not speak out or get
involved because they, too, might be targeted?
Ms. Engelbrecht. Absolutely. The IRS is arguably the most
feared agency in possibly the world and there are an awful lot
of folks out there that just packed up their tent and stopped
their little community organizations because they did not want
to be a party to what they saw unfolding.
Senator Cruz. I have to say it was disappointing yesterday
that Ms. Lynch also expressed no concern about the First
Amendment rights of citizens, about the effect of the IRS
targeting citizen speech, and about the effect of both bias and
conflict of interest and the appearance of bias and conflict of
interest on the impartial administration of justice.
I want to shift to a different set of issues, which is the
pattern of lawlessness of this administration, and I want to
focus on a line of inquiry that we had yesterday with Ms. Lynch
concerning prosecutorial discretion. I want to address this
question to Professor Turley.
Let me say, Professor Turley, I commend you for having the
courage to speak out about your concerns about the
constitutional dimensions of the conduct of the Executive. I
recognize that that has not been easy for you to speak out and
I suspect you have heard more than a little grief in the
faculty lounge for having done so.
So let me say thank you for having the courage of your
convictions. I wish we saw a lot more Members of this body with
similar courage of convictions.
Yesterday I asked Ms. Lynch if she agreed with the
reasoning of the Office of Legal Counsel that under the theory
of prosecutorial discretion, the administration could decline
to enforce immigration laws against 4 million to 5 million
people in a categorical manner and, beyond that, could
affirmatively issue work authorizations, print documents that
purport to authorize them to violate Federal law and work in
direct contravention to Federal law.
Ms. Lynch said that she found that OLC reasoning
persuasive.
Do you agree with that assessment?
Professor Turley. I have serious problems with the
reasoning for a couple of reasons of my own. First of all, much
of what we do when we look at separation of powers is to look
for limiting principles. We are in a system of government that
is shared and limited in its nature.
And part of the problem that I have with the
administration's position on things like immigration is that it
lacks that type of limiting principle.
To respond to my colleague, whom I have a great deal of
respect for, I do not see this as a matter of discretion. First
of all, I am not too sure if it really does mean what my friend
said, why they bothered even saying it, because that would make
it just a standard prosecutorial discretion of people who are
boots on the ground. I do not know why you would even issue
this if it meant what my friend has said.
But, second, if you look at that letter from immigration
faculty, as I did, once again, it raised this issue--what is
the limiting principle? The letter seemed to suggest that as
long as you are deporting one person, everything before that
point is a matter of discretion. I cannot believe that could
possibly be true.
If that were true, then virtually any law could be shut
down except for one case and you could claim you are just
exercising discretion.
I do criminal defense work when I am not teaching and I
think if I went to a prosecutor and said, look, I would like
you to basically give my guy a walk because this whole category
that he is a member of really should not be subject to this
type of enforcement, I think most would look at me like I had
two heads. They certainly would not give me much help on that.
There is a legitimate question of prosecutorial discretion,
but this is not one that I recognize. But my concern really, as
a constitutional scholar, is if this is prosecutorial
discretion, I do not know what would not be prosecutorial
discretion.
And this notion that is developed from prosecutors, is not,
obviously, in the Constitution, would swallow the obligations
of the President. Any discretion that my friend talked about in
terms of setting policies and priorities has to be defined
within the context given to the administration by Congress.
Senator Cruz. Professor Turley, I very much agree. And my
time is expiring, but I want to ask one final question, which
is I agree with you that the question is where do you draw the
line.
If the President can, through discretion, simply refuse to
enforce a major portion of immigration laws as it concerns
millions of individuals, what other laws can the President
unilaterally refuse to enforce?
And yesterday I asked Ms. Lynch about a couple of examples.
Number one, could a subsequent President instruct the Secretary
of the Treasury: ``Do not collect taxes in excess of 25
percent''; and, number two, I asked could a subsequent
President instruct the Department of Labor: ``You shall not
enforce any of the Federal labor laws on the books against the
State of Texas; the State of Texas is hereby immune from every
Federal labor law that has ever been passed.''
To both of those hypotheticals, Ms. Lynch refused to
answer, refused to say what I think is the obvious
constitutional answer, which is, of course, a President cannot
do that.
So the question I want to ask Professor Turley and I want
to give an opportunity for everyone on this panel, anyone on
this panel who wants to engage: Does anyone on this panel
disagree that it would be unconstitutional for the President to
refuse to enforce the tax laws or the labor laws or the
environmental laws? And if you think that would be
unconstitutional, does that not necessarily lead one to the
conclusion that the President's Executive amnesty is likewise
unconstitutional?
Professor Turley, we will start with you.
Professor Turley. I believe those examples would be
unconstitutional if the President claimed that authority.
Professor Legomsky. I actually agree with both Senator Cruz
and Senator Lee that there is a difference between saying we
simply will refrain from prosecuting and saying we will give
you deferred action and a work permit.
But on the specific question that you have asked just now,
I do think that a decision to not enforce the entire
immigration laws or not enforce the entire tax laws would
clearly exceed the President's legal authority.
But that is not even close to what we have here. As I
mentioned a moment ago, even after these new policies are fully
operational, there will still remain in this country at least--
and this is a conservative estimate-- 6 million to 7 million
undocumented immigrants to whom these policies do not apply,
and the President still will have only enough resources to go
after fewer than 400,000 of them, which means that nothing in
these policies will prevent the President from continuing to
enforce the law to the full extent that the resources that
Congress provided him will allow.
Senator Cruz. Let me briefly ask a clarification on your
example. The reason you said the Executive amnesty is
constitutional is because there exists some substantial subset
of people against whom the laws are enforced. Well, let us take
the labor law example. If Texas were exempted, there would be
49 States, a whole bunch of people you could enforce the labor
laws against. So would that satisfy the test you have just put
forth?
Professor Legomsky. If I understood the hypothetical
correctly----
Senator Cruz. Hang on one second. In the interest of time,
after he answers this one, we are going to have to turn to
Senator Franken. We have got votes coming up, so we have got to
keep moving. Thank you.
Professor Legomsky. I just wanted to make sure I understood
the hypothetical correctly. And your hypothetical is the
President enforcing the law in one State, but not in the other
States or vice versa.
One of the limitations I think is that the particular
priorities have to be rational. I think the discrimination
against the residents of one State would fail that test.
Along similar lines, my friend, Mr. Turley, says that the
law professor's letter was making the claim that as long as
even one person is deported, then it is okay. There was no such
claim in the letter, which I know very well.
There was certainly no implication in the letter that all
you would have to do is deport one. The point the letter makes
is that the President is fully spending all the enforcement
resources that Congress has provided. The President is not a
magician. He cannot spend resources he does not have, and that
is why that example is very different from the ones that have
been hypothesized.
Senator Cruz. Thank you very much.
Mr. Franken.
Senator Franken. Thank you. I want to thank all the
witnesses for being here today and for your testimony and your
patience.
I just want to talk to some of you who know Ms. Lynch. Mr.
Barlow, thank you for your service to the Justice Department
and for coming here today to speak on behalf of Ms. Lynch.
As you know, the Attorney General must be both an excellent
leader and an open-minded collaborator. The Attorney General
must develop and coordinate policies among the various
components of the Justice Department with other agencies.
Based on your experience serving with Ms. Lynch on the
Attorney General's Advisory Committee, how would you
characterize her leadership style?
Mr. Barlow. She is a leader among leaders, Senator. I would
describe her style as being inclusive, thoughtful, careful,
deliberative, and she is someone who is seeking consensus
wherever it may be found.
I have also seen her recognize that occasionally the
consensus cannot be reached and, when it could not be reached,
making sure that there was space for dissent so that all parts
of the issue could be fully examined.
Senator Franken. Thank you.
Ms. Fedarcyk, thank you for your service to the FBI and for
being here today. You served with the FBI's New York office for
25 years and have worked with many U.S. Attorneys. In your
testimony, you noted a wide range of cases that you worked on
with Ms. Lynch and the window that this gave you into her legal
acumen, her leadership style, her character.
How would you rate Ms. Lynch's performance as U.S. Attorney
and could you elaborate on the skills that you have observed
that would speak to her ability to serve in the role of
Attorney General?
Ms. Fedarcyk. Thank you, Senator. And just by way of
clarification, I was in New York for 2 years before I retired
and during those 2 years had the opportunity to work with
Loretta in her capacity as the United States Attorney.
Senator Franken. Oh, sorry.
Ms. Fedarcyk. We undertook any range of significant and
complex investigations ranging from national security through
the complex financial frauds, all the way through the panoply
of the criminal violations that include violent gangs and other
types of violent offenders.
I had a very close opportunity to observe Loretta during
the course of these investigations, but also beyond the conduct
of making decisions about cases and timelines for take downs
and the operational considerations, although those were
extraordinarily important, clearly, because the symbiotic
relationship is such that the New York office and, I would
argue, the FBI writ large cannot do its job without that kind
of symbiotic relationship with the U.S. Attorneys.
So my observation of Loretta in that role was that she led
from the front. She instilled qualities within her office, gave
them the resources, the opportunities to take on and grow
themselves as leaders within the office. But she was not afraid
to become intimately involved because she wanted to know what
was going on with the cases and not to micromanage.
And I think that is one quality of a true leader, to
empower her people to do a great job by backing off a little
bit, but still staying involved with the cases and knowing what
is going on within her office.
I think one of the other characteristics that I noticed
that I do not think I see a lot in executives is her ability to
understand vertical organization, but at the same time develop
horizontal relationships, particularly within the community.
So in a very structured environment, she was very
comfortable whether she was talking with an executive or all
the way down to, let us say, a brick agent or a line police
officer; the ability to talk to individuals, make them feel
immediately at ease, make them feel that they are actually
contributing and that she is listening to what she is talking
about and what they are talking about.
Likewise, when we talk about the horizontal view across a
community, she was very engaged with not just the law
enforcement community from local, State, Tribal, Federal, but
also the communities that we were serving. And, again, that
leadership of leading her office to understand the concerns of
these communities was integral to supporting the successes of
the offices.
So I think she brings a lot of----
Senator Franken. Let me ask you about that, because that is
about community engagement. So let me ask you about that style.
I think that is very important with the U.S. Attorney. I see
how important it is in Minnesota.
What was her style of engagement in terms of the community?
Ms. Fedarcyk. Very engaged and someone who was not afraid
to engage many different community groups and have very frank
discussions about concerns and issues, giving everybody an
opportunity to provide input, and that I think is incredibly
important because understanding the community you serve is part
and parcel of representing the system of justice and making
sure that if there are disparities in those communities, if
there are issues in those communities, that you understand what
they are so that you can help drive a change to make the system
of justice better in addressing those concerns.
With respect to the law enforcement community, she was
actively involved in many of the task forces, very supportive
of them as a concept that brought departments and agencies,
large and small, together to tackle entrenched crime issues,
terrorism, and would personally attend executive briefings.
And her philosophy was that we were all in this together,
that it was incumbent on law enforcement across the board to
work shoulder-to-shoulder to really protect this country and to
tackle issues that no one agency could do by themselves.
So I personally thought that her leadership skills were
outstanding. I viewed her as somebody that I could go to for
sound judgment, as a sounding board, and receive sage and
reasoned advice in return.
Senator Franken. Reverend Newsome, I am getting the picture
of a very impressive leader with those kinds of impressive
skills. But you came to testify today I think on where that
comes from in a moral sense.
Can you speak to where that comes from in terms of her
compassion and----
Reverend Newsome. Well, I think I can, Senator. Thank you,
Senator, for the opportunity. Let me try to be as succinct
about this as I possibly can.
Senator Sessions, glad to be reunited with you. We worked
on a church-burning project some years ago when I was Dean of
the Howard School of Divinity, very effectively. Thank you.
But the word impressive does not get it. She is a rare
individual. I study people from the standpoint of a religious
biographical perspective. So that when you begin to look at
what I might call at this point in time the genius of
character, you try to sense if it has come down through the
generations.
I mentioned in my written statement that her grandfather
was a Baptist minister, but three grandfathers before then, and
they served their congregations and their communities with
daring, with distinction, and, above all, wisdom, and that
wisdom was borne of a depth of insight into human nature as to
how leaders should best behave and be effective in garnering
the following, and leading in a way that works for the good of
all.
Loretta, and I have seen this throughout the years, is the
kind of person who can relate transparently enough to inspire
trust and confidence. So that you do not have to work a long
time wondering if what you are seeing is truly honest.
And this plays its way out in the sense that she is a due-
diligence kind of person. I understand the hypothetical kinds
of issues and questions, but my own background as a scholar
would say, well, at best, a hypothetical only approximates a
real-life situation and in a real-life situation, character
really comes forth when you do the kind of due diligence that
puts you in a position to make the quality of judgments that
makes for a positive difference.
This is in her bloodline. This is in her spiritual DNA. I
do not know if her father is still in the room, but I can tell
you that it has played out in the way that he has provided
leadership in North Carolina. Whether he had to stand alone or
stand with 1,000, it was the truth, the truth, the right thing
and the right thing, and character and character and character
over again.
I do not want to trivialize this process by using a sports
metaphor, but I am an old broken-down football player that
played at Duke when we were still winning games.
Senator Franken. That was quite a while ago.
[Laughter.]
Reverend Newsome. Quite a while ago. But we tend to think
in terms of a franchise kind of player. She is an exceptional
human being and I cannot avoid the sense of passion I feel
right now for the good that would come to our Nation in having
a person who would be good, absolutely superb, and even healing
our Nation through the responsible discharge of her duties as
the U.S. Attorney General.
Senator Franken. So you would be for her being confirmed.
[Laughter.]
Reverend Newsome. I will be mildly for her, yes.
Senator Franken. Although you cheapened it with a sports
metaphor, it was powerful testimony.
[Laughter.]
Senator Franken. Thank you. Thank you, Mr. Chairman.
Senator Cruz. Thank you, Senator Franken.
Senator Sessions.
Senator Sessions. Thank you for calling for us. A lot of
people we have disagreements with can be wonderful people and I
do sense that about her and I told her that--well, I was
talking about her, I believe--but she was raised right, I can
tell that.
So sometimes you just get caught up in things. Issues
become big and an individual becomes a focus of the
controversy.
Sheriff Clarke, thank you for your leadership. Now, I had
here right in front of me--and I have it now--a piece put out
just some time ago saying that there were 36,000 convicted
criminal aliens in detention that were released and that group
of people convicted were convicted of crimes such as homicide,
sexual assault, kidnaping, and aggravated assault.
And I notice one individual was just arrested for murdering
a 21-year-old convenience store clerk in Mesa, Arizona, on
January 22nd of this year after having been in ICE custody on a
drug and gang-related felony burglary conviction, but was
released on bond after a few days.
If you release 36,000 people who have been convicted of
crimes, based on your experience in law enforcement, can't we
expect that that group is likely to commit the kind of crimes I
just mentioned? Isn't that pretty predictable?
Sheriff Clarke. Thank you, Senator. Yes, if for no other
reason because of the recidivist nature of crime regardless of
what demographic is involved with it. I would say releasing
3,600 into communities that do not have the support structures
is, at best, dangerous policy.
Like I said, they do not have the support structures in
place. And then the thing about the--when we start talking
about the criminal aliens, the first thing they are going to do
is flee. That is the first thing they are going to do.
My experience in working with ICE--we do not enforce
immigration law, but we do cooperate with Federal agencies in
the pursuit of justice like we do any other Federal agency. But
they come with many aliases, difficult and it takes a long time
to identify them, but they realize, the individual that is
released on bail, they realize that it is in their best
interest to flee. And then they turn up in another community--I
will just speak to Milwaukee County.
We have had those same horror-type stories of individuals
who have been brought to ICE's attention and, for whatever
reason, they decided not to put a detainer on them or had a
detainer and released it; the individual is let out on bail and
then goes on to engage in an even more heinous act.
And, sure, the easy ones, Senator, are the ones who are
involved with murder, sexual assault. Those folks are probably
not going to get out on bail. We do not have to worry too much
about them.
Senator Sessions. Well, as this report indicated, a number
of them, like 193 of the 36,000 that were released included--
were homicide convictions. So you are right to assume that
serious crimes--it would be almost unbelievable that they were
being released, but data shows that a lot of them are the most
serious crimes--are being released.
Sheriff Clarke. Yes. I think sometimes some of the reports
or some of the rhetoric used in a discussion is on the lenient
side. They call them low-level offenders, but some of the stuff
that I see that they have been involved with are not literally
low-level offenders.
Senator Sessions. Well, Sheriff Clarke, let me just say you
are responsible for protection of people in Milwaukee and that
area and the Federal statute says someone convicted of a
serious felony shall be deported. It does not say that ICE has
an opinion about this, it says they shall be deported. Does it
make your life more difficult, does it place the people of
Milwaukee at greater risk if the officials are not following
the law and deporting people who have been convicted of serious
crimes?
Sheriff Clarke. Sure it does. In my limited knowledge of
legal language, ``shall'' is not discretionary. So I find that
problematic when that happens.
Senator Sessions. So do you not think it is common sense
and just that if a person's in the country illegally and on top
of that they commit a serious crime, they should be deported?
Sheriff Clarke. Yes. I think it is beyond common sense. I
think we have a duty, a duty to protect people.
Senator Sessions. And the law, of course, requires that. It
is just too often not being followed in an effective way.
Professor Legomsky. Senator, may I just add that I think--
--
Senator Sessions. Yes.
Professor Legomsky. Sheriff Clarke has just made one of the
strongest arguments in favor of the President's Executive
actions. The main point of the new prosecutorial priorities is
to be able to focus resources on precisely the individuals whom
he is describing, and hopefully it will have that effect.
I do not know in this case why the State authorities
released a person. If it was while the person was pending
trial, they must have thought that it is safe to release them.
So I am not sure why the onus is shifting to ICE, but that
aside, this is what the administration is trying to accomplish.
Senator Sessions. Well, this is not a matter of discretion,
Mr. Legomsky. I know you served with the USCIS. This part of it
is mandatory, the point I am raising. We are entering into an
utterly lawless system here. Nothing Congress passes,
apparently, has the ability to be effectuated in reality. That
is the problem.
Congress will pass things and they do not happen. We
mandated a fence, 700 miles. It has not happened. We said there
should be an exit/entry visa, which the 9/11 Commission has
hammered us for not completing as law required, and it still
has not been completed.
Are you aware that the group that you worked with, the
Federation of Government Employees, who represent USCIS, has
opposed this bill vigorously?
Professor Legomsky. Yes.
Senator Sessions. And say it will not work and is not
helpful.
Professor Legomsky. Well, this is the very same group whom
some people are suggesting will refuse to obey the Secretary's
instruction to exercise discretion and will instead rubberstamp
these cases. So I think----
Senator Sessions. Well, let me ask you about discretion.
That is Professor Eastman. In his testimony before the House on
discretion, he says there is nothing in the memo to suggest
that immigration officials can do anything other than grant
deferred action to those meeting the defined eligibility
criteria.
Indeed, the overpowering tone of the memo is one of woe to
line immigration officers who do not act as the memo tells them
they should, a point that has been admitted by the Department
of Homeland Security officials in testimony before the House.
In the House, Chairman Goodlatte of the House Judiciary
Committee, said, ``DHS has admitted to the Judiciary Committee
if an alien applies and meets the DACA eligibility criteria,
they will receive deferred action. In reality, the immigration
officials do not have discretion to deny DACA applications if
the applicants meet these criteria.'' I think, Professor
Rosenkranz, you indicated it might be an illusory thing here.
Isn't that proof that really it is illusory discretion? In
fact, it is mandatory.
Professor Rosenkranz. Absolutely.
Professor Legomsky. Well, the memo says precisely the
opposite, Senator, with respect. It says that these are cases
that ``present no other factors that, in the exercise of
discretion, make the grant of deferred action inappropriate.''
At the very end there is even more explicit wording: ``the
ultimate judgment as to whether an immigrant is granted
deferred action will be determined on a case-by-case basis.''
So the memo refers explicitly to discretion.
Professor Rosenkranz. Senator----
Senator Sessions. Well, we said we are going to do an exit/
entry visa and it is not. The truth is that officials are going
to approve the people if it meets the DACA--meets the
memorandum standards.
Professor Rosenkranz. The important thing to notice is that
it flips the presumption, right? The presumption is that the
law will not be enforced and somebody might have discretion to
enforce the law in a particular case, but this is turning
prosecutorial discretion on its head. The presumption in
general is that law will be enforced and discretion will be
used to create an exception to the rule. Here, the enforcement
is clearly going to be the exception to the rule, if it happens
at all.
Professor Legomsky. Except that the entire deferred action
memo is the exception, right? The norm is that you do get
deported if you fall within one of the deportability grounds.
This memo lays out an exception: If you meet the following
criteria, then USCIS officials would have the discretion, on a
case-by-case basis, to defer your----
Senator Sessions. Well, just briefly, if the people do not
meet the standards and somebody does get turned down--well, the
projection is a little less than half the people, 5 million out
of 11. What if somebody is turned down, are they going to be
deported?
Professor Legomsky. Generally, I would think, yes. If they
bring their presence to the attention of the enforcement
authorities and if it fits within the prosecutorial discretion
priorities, then I cannot think of any reason that ICE would
not----
Senator Sessions. Well, they are not going to be deported.
The only ones that are being deported today is, as I think you
know, people who commit serious crimes, and we find out even
they are not being deported. We have reached a lawless stage in
immigration and the American people are not happy about it.
They have a right to demand that their laws be enforced and the
President's actions are some of the most dramatic steps to
violate plain law that I have ever seen in my experience.
Thank you, Mr. Chairman. My time is over. You are kind.
Senator Lee. Thank you, Senator Sessions.
As we were preparing for yesterday's hearing, I found a
quote that I would like to talk about in a minute for a moment,
a quote from a speech given by Ms. Lynch about a year ago in
which she made the following statement. It caught my attention
because it raises some alarm bells.
It says: ``Fifty years after the March on Washington, 50
years after the civil rights movement, we stand in this country
at a time when we see people trying to take back so much of
what Dr. King fought for. We stand in this country. People try
and take over the Statehouse and reverse the goals that have
been made in voting in this country. But I'm proud to tell you
that the Department of Justice has looked at these laws and
looked at what's happening in the Deep South, and in my home
state of North Carolina, has brought lawsuits against those
voting rights changes that seek to limit our ability to stand
up and exercise our rights as citizens.''
When I read this, for obvious reasons, I immediately became
concerned. I was wondering what it was that she was talking
about, what laws there were out there, what legacy of the civil
rights era that was trying to be overturned. Ms. Engelbrecht,
can you guess as to what she might have been talking about
referring specifically to her home State of North Carolina?
Ms. Engelbrecht. I cannot. And I reviewed the same comments
that you referred to, which was, I think, taken from a speech
in February out in Los Angeles. What continues to boggle the
mind is that the vast majority of Americans want, understand,
and appreciate the need to try to safeguard our elections. The
thought that asking a voter to prove they are who they say they
are is somehow discriminatory just--you know, it seems to me to
be much more about pushing a political agenda than protecting
the people.
Senator Lee. You know, I wondered about this so I asked one
of my colleagues who was on this Committee with me, Senator
Thom Tillis from North Carolina, who as it turns out at the
time she gave this speech was the Speaker of the House in North
Carolina.
I asked him what this was about, what she was referring to.
These are pretty bold statements and if someone is going to
accuse a State legislative body of moving to undo the legacy of
Dr. Martin Luther King, of trying deliberately to diminish
voting rights in this country, I feel like we need to know what
that is.
He suggested to me that it might have been directed toward
a voter ID law that was passed by the State of North Carolina
at the time that Senator Tillis was the Speaker of the North
Carolina House of Representatives. I asked him about this law a
little bit and he told me that when it came forward there was
concern about voter fraud, about the risk of voter fraud in
North Carolina.
He said, look, I want to find the most fair statute that
there is on the books anywhere in this country and I want to
make it that much fairer. I want to put the belt and the
suspenders, and another belt and another set of suspenders, on
it to make sure that no one's voting rights are diminished at
all.
So they started with the model of an Indiana statute, a
model that was itself quite cautious. It continues to allow no-
excuse absentee voting without an ID, it accommodates
individuals with religious objections to photography, providing
them with a way, an alternative means, of proving their
identity, pays for an ID issued by the Department of Motor
Vehicles without any charge to the voter.
So they started with that as the model and then they added
a whole bunch of additional protections that neither Indiana,
nor any other State that has adopted any law like this; it had
a two-year ramp-up period, a special North Carolina program
designed to allow home-bound individuals to get a photo ID,
another Government program that not only pays for the
Government-issued ID, but also allows for documents for a
register of deeds or the Department of Health and Human
Services that can be used to verify ID. It establishes a
million-dollar trust fund to reach out to those people who
might not have IDs, and this list goes on and on and on. This
is the most cautious, carefully protective statutory scheme
that I can imagine in this area.
If in fact this was the target of this description, do you
think it is fair to describe this legislation that way, as an
attempt to undo the gains of the civil rights movement and the
gains of Martin Luther King and those who fought with him
valiantly to protect voter rights in America?
Ms. Engelbrecht. Absolutely not. I do not think that it is
appropriate or fair, and if that is truly the belief that is
held, we need to understand what is behind that because it
belies anything that you have just read in making sense.
Senator Lee. With your involvement in efforts to prevent
voter fraud, what would you say to those who have made the
argument that there is no such thing as voter fraud and
therefore we need not be concerned about it, and that the only
reason somebody could push for it would be because they
subjectively want to undermine voting rights? What would you
response to that be?
Ms. Engelbrecht. I mean, I think that our history is
replete with examples of voter fraud and I think that it is
something that we should take very seriously because you do not
need a whole lot of fraud. You just need a little bit in the
right places. And the less that you create a system that
secures everyone's vote, the more open it is, obviously, to
these kinds of manipulations that just further divide our
country in ways that serve no purpose.
Senator Lee. Thank you.
Sheriff Clarke, I wanted to talk to you a minute about the
relationship between the Department of Justice and law
enforcement right now. How would you describe the relationship
between law enforcement and the Department of Justice?
Sheriff Clarke. Thank you, Senator. Frayed. I am not going
to engage in hyperbole or exaggerate, but we cannot have even a
frayed relationship. The mission statement that I cited early
on, you know, talks about partnerships and, just from the
Milwaukee experience, anyway, we need the help of the U.S.
Attorneys' Office in the Eastern District of Wisconsin to deal
with instances of the violent crime, the repeat offender.
We are not talking about the first-time offender, we are
not talking about people who may deserve some sort of remedy
for some transgression they made. I talked about the 10-year-
old, Sierra Guyton. Both of those individuals, felons,
convicted felons. The prohibition of not being able to be
armed--or a firearm anyway--as a convicted felon, means nothing
to them.
The State has not shown a willingness at the State level. I
think it is a legitimate question to ask, What are they doing
at the State level with some of these cases? Too much leniency.
I will tell you one thing from a deterrent standpoint, Senator:
Criminals fear the Federal system; they just do.
So if we were to have, for instance, cases of--it was very
creative legally, a case in Milwaukee where the--Jim Santelle,
the Assistant U.S. Attorney, who we do have a great
relationship with, used the Hobbs Act to charge career hold-up
men who have gone on a robbery spree. One of them I believe
recently received a 15-year sentence. Plus, they used a firearm
in the commission of those crimes.
But they do not have to charge all of them. I know they do
not have--I heard about the prosecutorial discretion. But I
think if we take this elephant and try to eat it one spoonful
at a time--the elephant being violent crime that is ravaging
all kinds of urban centers in America--but if we take the worst
offenders and subject them to Federal sanctions, that is going
to first of all ensure--get a better chance at a conviction and
you have got a better chance at a more lengthy sentence for the
person who just has not cared, if you will, about any State
sanctions that have been applied.
So that is the sort of help we need from the Federal
prosecutor's office in Milwaukee. Straw purchases is another
one. I will not really rap the U.S. Attorney's Office for straw
purchases, but law enforcement is really not bringing in the
cases. The ones they are, they are dealing with very well. But
the armed violent offender is the one I would like to see go
the Federal route.
Senator Lee. Thank you.
Today we have heard from a number of witnesses who have
testified as to Ms. Lynch's qualifications, which are
themselves impressive. It is great in particular to see my
friend David Barlow. I know of no finer lawyer or human being
any more than David, so it is always great to see you. Each of
you have put a lot of thought into your testimonies. I
appreciate both your written testimonies and what you have
spoken to us today.
The record for this hearing will remain open for one week
for Members to submit written questions for the record.
The hearing will be adjourned. Thank you.
[Whereupon, at 3:04 p.m., the hearing was adjourned.]
[Additional material submitted for the record for Day 1 and
for Day 2 follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Ms. Sharyl Attkisson
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Rev. Dr. Clarence G. Newsome
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Additional Submissions for the Record
A list of material and links can be found below for Submissions for the
Record
not printed due to voluminous nature, previously printed by an agency
of the
Federal Government, or other criteria determined by the Committee:
Attorney General's Advisory Committee, December 19, 2014, working
draft
agenda--redacted,
Part 1:
https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
2014)_Part1.pdf
Part 2:
https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
2014)_Part2.pdf
Part 3:
https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
2014)_Part3.pdf
Part 4:
https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
2014)_Part4.pdf
Part 5:
https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
2014)_Part5.pdf
Legal and Administrative Management Evaluation, United States
Attorney's
Office, Eastern District of New York, January 23, 2015, draft
report--
redacted:
https://www.judiciary.senate.gov/imo/media/doc/EARS_Redacted
%20FINAL.pdf