[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
UNITED STATES DEPARTMENT OF JUSTICE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
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JUNE 7, 2012
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Serial No. 112-152
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.govFOR
SPINE deg.
UNITED STATES DEPARTMENT OF JUSTICE
UNITED STATES DEPARTMENT OF JUSTICE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
JUNE 7, 2012
__________
Serial No. 112-152
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
74-504 WASHINGTON : 2012
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada
Richard Hertling, Staff Director and Chief Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
C O N T E N T S
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JUNE 7, 2012
Page
OPENING STATEMENTS
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
WITNESS
The Honorable Eric H. Holder, Jr., Attorney General, U.S.
Department of Justice
Oral Testimony................................................. 4
Prepared Statement............................................. 9
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Member, Committee on the Judiciary............................. 27
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Member, Committee
on the Judiciary............................................... 41
Material submitted by the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Member, Committee on the Judiciary............................. 141
Material submitted by the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 149
Material submitted by the Honorable Darrell Issa, a
Representative in Congress from the State of California, and
Member, Committee on the Judiciary............................. 247
Material submitted by the Honorable Henry C. ``Hank'' Johnson,
Jr., a Representative in Congress from the State of Georgia,
and Member, Committee on the Judiciary......................... 426
Material submitted by the Honorable Linda T. Sanchez, a
Representative in Congress from the State of California, and
Member, Committee on the Judiciary............................. 465
APPENDIX
Material Submitted for the Hearing Record
Material submitted by the Honorable Darrell Issa, a
Representative in Congress from the State of California, and
Member, Committee on the Judiciary............................. 473
Material submitted by the Honorable Henry C. ``Hank'' Johnson,
Jr., a Representative in Congress from the State of Georgia,
and Member, Committee on the Judiciary......................... 513
Post-Hearing Questions submitted to the Honorable Eric H. Holder,
Jr., Attorney General, U.S. Department of Justice.............. 515
UNITED STATES DEPARTMENT OF JUSTICE
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THURSDAY, JUNE 7, 2012
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to call, at 9:39 a.m., in room
2141, Rayburn House Office Building, the Honorable Lamar Smith
(Chairman of the Committee) presiding.
Present: Representatives Smith, Sensenbrenner, Gallegly,
Goodlatte, Lungren, Chabot, Issa, Forbes, King, Franks,
Gohmert, Jordan, Poe, Chaffetz, Griffin, Marino, Gowdy, Ross,
Adams, Quayle, Conyers, Berman, Nadler, Scott, Watt, Lofgren,
Jackson Lee, Waters, Cohen, Johnson, Pierluisi, Quigley, Chu,
Deutch and Sanchez.
Staff Present: (Majority) Travis Norton, Counsel; Holt
Lackey, Counsel; (Minority) Perry Apelbaum, Staff Director and
Chief Counsel; Danielle Brown, Counsel; and Aaron Hiller,
Counsel.
Mr. Smith. The Judiciary Committee will come to order.
Without objection, the Chair is authorized to declare recesses
of the Committee at any time.
I will recognize myself and then the Ranking Member for an
opening statement.
Welcome, Attorney General Holder, to today's oversight
hearing of the Department of Justice.
Regrettably the Obama administration has shown a disregard
for the Constitution and rule of law in an effort to impose
their agenda on the American people, and there are many
examples. Efforts to block congressional inquiries about the
Administration's actions undermine the balance of power on
which our Nation is founded.
The Department of Justice still has not provided enough
information about Operation Fast and Furious so that the
American public and Congress can judge who in the Department
bears responsibility for the decisions that led to Agent Brian
Terry's death. The Justice Department refuses to comply with
Congressional subpoenas that may shed light on why this program
was authorized and who had knowledge of the inappropriate
tactics.
The Department of Justice also has failed to provide
relevant information that would have revealed the extent of
Justice Kagan's involvement in the development of the
Affordable Care Act when she was Solicitor General. If she did
give counsel on the healthcare bill, which was her job, then
she should recuse herself rather than evaluating the law as a
member of the Supreme Court. The Justice Department has refused
to let us interview her former assistants.
Neglecting to enforce or defend the law as enacted by
Congress is another violation of the Administration's
constitutional obligation to the American people. Under this
President, the Justice Department has engaged in a pattern of
selective enforcement of the law in order to advance its own
partisan agenda. For instance, the Obama administration has
sought to prevent State and local authorities from enforcing
immigration laws. At the same time, the Justice Department has
refused to bring cases against sanctuary cities that violate
Federal law by prohibiting their officials from communicating
with the Department of Homeland Security about illegal
immigrants they encounter. Such sanctuary cities directly
challenge the Federal Government's authority to enforce
immigration laws. The Administration's unwillingness to uphold
immigration laws has led to injuries and even death.
The Administration refuses to defend the Defense of
Marriage Act, a law enacted by Congress and signed by then-
President Bill Clinton. This was a significant piece of
legislation that was approved by a vote of 342 to 67 in the
House and 85 to 14 in the Senate. Regardless of how one feels
about the substance of the bill, the Department of Justice has
an obligation to defend the laws of the land.
Efforts by the Administration to override election laws
enacted by States also raise constitutional concerns. Instead
of acting to prevent voter fraud, the Department of Justice has
challenged common-sense voter ID laws that require voters to
identify themselves before they are allowed to vote. The
Department of Justice recently moved to block implementation of
voter ID laws enacted by legislatures in Texas and South
Carolina. The Texas proposal was based on a similar law passed
by the Indiana Legislature which was upheld by the Supreme
Court in 2008. The Justice Department's challenge to the law
ignores Supreme Court precedent that affirms a State's right to
enact laws to protect the integrity of its elections.
The Department of Justice even threatened to sue Florida
for trying to remove ineligible non-citizens from its voter
rolls. Why would the Department of Justice not want States to
remove ineligible felons, ineligible non-citizens and the dead
from their voter rolls? The Administration's actions aren't
just wrong, they are arrogant, undemocratic and an insult to
the rule of law.
The Administration's disregard for the Constitution and
rule of law not only undermines our democracy, it threatens our
national security. The Justice Department has not taken the
initiative to prosecute leaks of national security secrets.
Recent leaks about a foiled bomb plot out of Yemen and a
cyberattack against Iran are, in the words of Senate
Intelligence Chairwoman Dianne Feinstein, quote, ``very
detrimental, very concerning, and hurt our country,'' end
quote.
The past 3\1/2\ years, this Administration has engaged in a
pattern of obstructionism, unaccountability and partisanship.
The American people should have confidence that the Department
of Justice fairly enforces laws. That confidence is lacking
today. This hearing will explore how that confidence can be
restored.
That concludes my opening statement, and the gentleman from
Michigan, the Ranking Member of the Judiciary Committee, is
recognized for his.
Mr. Conyers. Thank you, Chairman Smith.
And welcome, Attorney General Holder.
The opening statement is an opportunity for both of us here
to set the tone for this hearing, but never in the career of
Chairman Smith as the Chair of this Committee have I heard so
many erroneous statements, and having never heard them before,
I can assure him and you that I will be going over his
statements and help him arrive at a more factual and impartial
conclusion.
Now, having said that, we welcome you once again to the
House Judiciary Committee. This, by my count, is the eighth
time this Congress that the Attorney General has made himself
available for questioning, and this level of access is
extraordinary, particularly when we compare your record to that
of your immediate predecessor.
Now, with respect to the continuing investigation into
Operation Fast and Furious, I want to thank you for your
patience and diligence. To date, the Department of Justice has
provided over 7,600 pages of documents to the Congress. You
made additional law enforcement-sensitive materials available
to us in dozens of briefings. You have permitted us to question
senior Department officials in hearing and in transcribed
interviews. And you yourself have appeared before this
Committee once every 6 months since the controversy became
public. I hope that the tone of today's discussion reflects the
many courtesies that you and the Department of Justice have
shown us in the past months.
And I also want to commend you and the Department of
Justice on a series of important accomplishments in the field
of civil rights and voting rights, a couple of issues that I
have paid special attention since I first became a Member of
the House Judiciary Committee.
Enforcing section 5 of the Voting Rights Act. The
Department has aggressively enforced section 5, which ensures
that States with a history of discrimination can't create
additional barriers to minority access to the ballot box. The
Department has already blocked discriminatory voter IDs laws in
Texas and South Carolina, and I would encourage you to look at
other similar troubling laws taking effect across the country.
Stopping illegal purges of the voting rolls. Last week the
Voting Section wrote to the State of Florida demanding that
they cease and desist from purging voters from the rolls. The
practice was not submitted to the Department under section 5
and would not have been approved if it had been.
Protecting the rights of members of the armed services in
terms of their voting. The Department has secured court orders
and consent decrees in 14 jurisdictions to better enforce the
Military and Overseas Voter Empowerment Act, MOVE.
Restoring the integrity of the Civil Rights Division. After
the Office of the Inspector General and the Office of
Professional Responsibility completed their review of illegal,
partisan hiring practices under another Administration, their
final report included recommendations for improved transparent
hiring process at the Civil Rights Division itself. And under
the leadership of Assistant Attorney General Tom Perez, the
Division has fully adopted each of those recommendations and is
now predominantly staffed by attorneys with actual experience
in the field of civil rights law.
Enforcing the Fair Housing Act and the Equal Credit
Opportunity Act. The Department's $335 million settlement with
Countrywide Financial last December compensated families who
were charged higher fees and interest rates because of their
race or national origin. This enforcement action makes clear
the Department will not hesitate to hold financial institutions
accountable for lending discrimination.
There are, of course, areas which we hope the Department
will improve. But today, 4 years after the worst economic
upheaval since the Great Depression, we are still looking to
hold some of those Wall Street barons accountable. And
according to one--well, let me conclude. My time has ended, and
I thank the Chairman.
And yet what we want to do here today is have a thorough
and fair discussion. And I am going to ask that our colleagues
on this Committee conduct themselves in a manner that is worthy
of the Attorney General's present appearance here. I thank the
Chair, and I yield back the balance of my time.
Mr. Smith. Thank you, Mr. Conyers.
Our only witness today is United States Attorney General
Eric H. Holder, Jr. On February 3, 2009, Attorney General
Holder was sworn in as the 82nd Attorney General of the United
States.
Attorney General Holder has enjoyed a long career in both
the public and private sectors. First joining the Department of
Justice through the Attorney General's Honors Program in 1976,
he became one of the Department's first attorneys to serve in
the newly formed Public Integrity Section. He went on to serve
as a judge of the Superior Court of the District of Columbia
and the U.S. Attorney for the District of Columbia.
In 1997, Mr. Holder was named by President Clinton to be
the Deputy Attorney General. Prior to becoming Attorney
General, Mr. Holder was a litigation partner at Covington &
Burling, L.L.P., in Washington, D.C.
Mr. Holder, a native of New York City, is a graduate of
Columbia University and Columbia Law School.
Mr. Holder, we appreciate your presence today, look forward
to your testimony, and please begin.
TESTIMONY OF THE HONORABLE ERIC H. HOLDER, JR., ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE
Attorney General Holder. Well, good morning, Chairman
Smith, Ranking Member Conyers, and distinguished Members of
this Committee. I appreciate the chance to discuss some of the
key accomplishments that have distinguished the Department's
work throughout this Administration and to outline our plans to
build upon this particular record of achievement.
In particular I am proud of the work that has been done by
the Department's 116,000 employees, as well as our government
and law enforcement partners worldwide to help fulfill the
promises that I made before this very same Committee about 3
years ago.
Shortly after I became Attorney General, I pledged to
strengthen the Department's efforts to protect the American
people from terrorism and other national security threats, to
ensure that every decision, and every investigation, and every
prosecution would be guided by the facts and by the law and by
nothing else. I also reaffirmed my commitment to move
aggressively to prevent and combat violent crime and financial
fraud, to seek justice for victims, to protect the most
vulnerable among us, to safeguard the environment, and to
uphold the civil rights of all of our citizens.
In each of these areas, the Department has made tremendous
and, I think, in many case historic progress. Nowhere is this
more evident than in our national security efforts. In the last
3 years, the Department has secured convictions against scores
of dangerous terrorists. We have identified and we have stopped
multiple plots by foreign terrorist groups as well as homegrown
extremists, and we have strengthened essential surveillance and
intelligence-gathering capabilities in a manner that is
consistent with the rule of law and our most treasured values.
Just last month we secured our seventh conviction in our
Article III civilian courts in one of the most serious
terrorism cases that our Nation has faced since 9/11, an al
Qaeda-sponsored plot to conduct coordinated suicide bomb
attacks in the New York City subway system. And roughly 2 weeks
ago, we obtained a guilty verdict in the case of a former
member of the U.S. Army who intended to bomb U.S. soldiers in a
restaurant in Killeen, Texas. On the same day another Texas man
was sentenced to 20 years in prison for attempting to become a
part of al Qaeda in the Arabian Peninsula.
Now, in addition to our national security successes, the
Department has made meaningful, measurable strides in
protecting Americans from violent crime. Through innovative
programs, such as our Defending Childhood Initiative and the
National Forum on Youth Violence Prevention, we developed
comprehensive, collaborative approaches to addressing the
causes and remedying the consequences of violence among and
directed toward our Nation's young people.
By forging and strengthening partnerships between our
United States attorneys' offices and Federal, State, local and
tribal, and international law enforcement officials, we are
combating gun, gang and drug-fueled violence more effectively
than ever before. Alongside key law enforcement allies and our
counterparts in Mexico and other countries, we have
orchestrated a series of coordinated strikes against violent
drug cartels, arresting thousands of cartel members and seizing
billions of dollars in assets.
We are also implementing strategic, desperately needed
plans to address the shocking rates of violence that plague
American Indian and Alaska Native women through tribal
communities. And we are using every resource and tool as our
disposal, including the power of research and scientific
analysis, to protect our Nation's law enforcement community,
which in recent years has seen an unfortunate and totally
unacceptable rise in the line-of-duty deaths.
Many of you worked to raise awareness about the tragic fact
that violence against law enforcement offices is approaching
the highest level that we have seen in nearly two decades. As
Attorney General and as the brother of a retired police
officer, I am proud that the Department has responded to this
recent crisis with resolve and with robust action.
Just last week I met with the Major Cities Chiefs Police
Association at its summer meeting to discuss the ways we have
developed and implemented the host of important programs, such
as the landmark VALOR Initiative, which is providing our law
enforcement partners with the latest in training tools and
resources, as well as the Bulletproof Vest Partnership Program,
which has helped more than 13,000 jurisdictions purchase
lifesaving bullet- and stab-resistant equipment in order to
help protect those who risk their lives to keep us safe. But
simply, our commitment to officers' safety has never been
stronger, and as recent achievements prove, the same can be
said of our resolve to protect American consumers.
Since the start of this Administration, the Justice
Department has signaled an unwavering commitment to preventing
and combating a wide range of financial and healthcare fraud
crimes. We have taken bold steps to address the contributing
factors and consequences of the recent economic crisis, and
this work is paying dividends.
Last year alone the Department's Consumer Protection
Branch, working with U.S. Attorneys' offices across the
country, obtained a 95 percent conviction rate; secured more
than $900 million in criminal and civil fines, restitution and
penalties; and obtained sentences totaling more than 130 years
of confinement against more than 30 individuals.
In cooperation with our partners at the Department of
Housing and Urban Development and a bipartisan group of 49
State attorneys general, we achieved a $25 billion settlement
with five of the Nation's top mortgage servicers, the largest
joint Federal-State settlement in the history of the United
States of America. Through the efforts of the President's
Financial Fraud Enforcement Task Force, which was launched in
2009, we obtained prison sentences up to 60 years in a variety
of fraud cases, including multimillion-dollar Ponzi schemes and
the largest hedge fund insider trading case in the history of
this country.
We have established two new working groups to enhance civil
and criminal enforcement of consumer fraud and to bring Federal
and State authorities together in investigating and prosecuting
misconduct by financial institutions in the organization,
securitization and servicing of mortgages that contributed to
our financial crisis. And we have continued to make tremendous
gains in our work to combat healthcare fraud. In fact, over the
last fiscal year, in cooperation with the Department of Health
and Human Services and my partner Kathleen Sebelius, by
utilizing authorities provided under the False Claims Act and
other essential statutes, we have recovered nearly $4.1 billion
in cases involving fraud or in Federal healthcare programs.
That is the highest amount ever recorded in a single year. And
for every dollar that we have spent combating healthcare fraud,
we have returned on average $7 to the U.S. Treasury, the
Medicare Trust Fund, and others.
The Department has also taken crucial steps forward in
protecting the most vulnerable members of our society and
ensuring the civil rights of all of our citizens. Over the past
3 years, our Civil Rights Division has filed more criminal
civil rights cases than ever before, including record numbers
of human-trafficking cases, in an effort to ensure that in our
workplaces and our military bases, in our housing and lending
markets, in our schools and places of worship, in our immigrant
communities, and in our voting booths the rights of all
Americans are protected.
In addition, we are working to strengthen the rule of law
across both the country and around the world and beyond our
borders establishing the global alliance that is necessary to
combat transnational organized crime as outlined in the
President's strategy. This includes combating intellectual and
financial property crimes, child pornography rings, organized
criminal networks, and criminal facilitation of terrorist
activities. And we have partnered effectively with Members of
Congress to advance important changes in policy and
legislation, from landmark hate-crimes legislation to the
reduction of the unjust and unfair crack/powder cocaine
sentencing disparity.
This work goes on today in our efforts to help ensure the
reauthorization of the Violence Against Women Act, a critical
law that has transformed our Nation's response to crimes
against women and enhanced our ability to achieve justice for
victims, while holding offenders accountable. It goes on in our
strong support for the renewal of essential authorities, such
as those included in the Foreign Intelligence Surveillance Act
amendment of 2008. And it endures in our determination to build
upon the extraordinary accomplishments that have defined the
past 3 years; to take our fight against terrorism, crime, fraud
and other threats to a new level.
I am proud of these and the Department's many other
achievements, and I hope to spend most of our time today
discussing how we are working to build on this progress.
However, I would like to briefly address the ongoing
investigations into the ATF gun-trafficking operations along
the southwest border.
As a result of concerns raised by ATF agents, we now know
of several Arizona-based investigations that occurred under
this Administration and the previous one where inappropriate
tactics were used in an attempt to stem the flow of illegal
guns across the southwest border. Although these law
enforcement operations were focused on the laudable goal of
dismantling illegal gun-trafficking networks, they were flawed
both in concept and execution. I share your concerns about how
these operations were developed and how they were implemented,
and that is why, just as congressional leaders have called for
answers, I asked the Department's inspector general to conduct
a comprehensive investigation as well.
I also put in place new leadership at ATF, which has taken
steps, including the implementation of a stricter oversight
procedure for all significant investigations, to prohibit the
flawed tactics employed in these operations.
Now, many of the key enhancements implemented by the
Department are set out in the Deputy Attorney General's letter
to the Committee that is dated January 27th of this year. Even
since the date of that letter, however, we have continued to
refine the Title III process. For example, our Office of
Enforcement Operations now requires that before it even accepts
a request for a wiretap intercept from a United States
attorney's office, a supervisor in the relevant U.S. Attorney's
office must personally approve that request.
Now, I would be remiss if I did not point out that the ATF
agents who testified before Congress have also asked that law
enforcement be provided with the tools that it needs to
effectively combat gun trafficking on the southwest border. And
I want to reiterate my commitment to working with congressional
leaders to meet the needs of our law enforcement partners and
to help address serious national security challenges on our
borders.
Finally, I want to make clear that we welcome the recent
engagement of congressional leadership in the Department's
continued efforts to satisfy the legitimate goals of
congressional oversight, while at the same time reserving the
integrity and the independence of the Department's ongoing
criminal investigations and prosecutions.
The leadership's recent letter represented, I think, a
promising step toward reaching a resolution as it accomplished
two things. First, it narrowed the universe of documents still
in dispute between the Justice Department and the House
Oversight Committee. Second, it identified the specific
questions that remain of concern to leadership.
We are confident that the constructive discussions that
have occurred since this letter can result in a mutually
acceptable resolution. In all of these efforts, I am grateful
for your continued support, and I would be happy to answer any
of the questions that you might have. Thank you.
Mr. Smith. Thank you, Mr. Attorney General.
[The prepared statement of Mr. Holder follows:]
__________
Mr. Smith. Let me remind Members that the Attorney General
is with us until 1:30 this afternoon, and in order for all 40
Members of the Committee to be able to make comments and ask
questions, we are going to need to adhere strictly to the 5-
minute rule.
And I will recognize myself for questions.
Mr. Attorney General, the Foreign Intelligence Surveillance
Act amendments, which help protect our country from terrorists,
expires the end of this year. Do you support the extension of
those amendments?
Attorney General Holder. We do support them. It is the most
important legislative concern of the Intelligence Community,
and we hope that Congress will pass that reauthorization before
the expiration at the end of the year.
Mr. Smith. Okay. Now, let me go to Operation Fast and
Furious you mentioned in your testimony. Mr. Attorney General,
who is the highest-level official in this Administration who
knew that these tactics were being used? And I am talking about
knew the tactics were being used before the death of Agent
Brian Terry on December 15, 2010.
Attorney General Holder. Well, we know that the operation
began in the field office in Arizona, both the U.S. Attorney's
office and in the ATF office there. The inspector general is in
the process of examining the way in which----
Mr. Smith. To your knowledge, who was the highest-ranking
official in the Administration who knew about the tactics?
Attorney General Holder. At this point I can say that it
started in Arizona, and I am not at all certain who beyond that
can be said to have been involved with regard to the use--now,
there was knowledge of it, but with regard to the use of the
tactics, I certainly don't----
Mr. Smith. No one other than ATF officials in Arizona, you
are saying, knew about the tactics used in Operation Fast and
Furious before December 15, 2010; is that right?
Attorney General Holder. I think that in terms of knowledge
of the tactics as opposed to the operation itself, I don't
think that anybody in Washington knew about those tactics until
the beginning of----
Mr. Smith. Speaking of those tactics, when were you first
told or became knowledgeable about U.S. officials allowing
firearms to be sold to the drug cartels in Mexico? And I would
like a specific date, if you can give it to us.
Attorney General Holder. I don't have a specific date. I
got a letter from Senator Grassley at the end of January of
2011. I think I became aware of tactics themselves probably in
February of 2011, as I have indicated in the seven previous
times that I have testified.
Mr. Smith. Okay. And it wasn't until that letter from
Senator Grassley that you knew about the firearms being allowed
to be transferred to the drugs cartels in Mexico.
Attorney General Holder. No, it was not in the letter. The
letter directed my attention to the area that ultimately led to
my understanding about the tactics. But the letter itself did
not mention Operation Fast and Furious.
Mr. Smith. Okay. And so once again, when did you learn
about the tactics that were being used?
Attorney General Holder. As I said, the early part of 2011.
Mr. Smith. Okay. And that was immediately after--several
weeks after the death of Brian Terry?
Attorney General Holder. That happened in December 2010.
Mr. Smith. Okay. And is that the same date that you found
out that these firearms that were connected to Fast and Furious
were found at the murder scene of Brian Terry, or did you find
out about that before?
Attorney General Holder. I don't know when I found out
about--I don't remember when I found out about that particular
fact. I would guess it would also be sometime in the early part
of 2011.
Mr. Smith. Why was it do you think that individuals who
worked for you who were in this Administration would not have
made it known to you or others outside of Arizona that firearms
that were allowed to be given to drug cartels in Mexico by U.S.
officials? Why did it take so long for you to learn or for
others to tell you? Was there a coverup going on, or what was
the explanation for you in your position not knowing more about
the tactics?
Attorney General Holder. Well, I think the answer is found
in your question. No one knew about the tactics at the time of
that initial discovery. It wasn't until the tactics were
discovered that people started to understand that we had a
problem here. But for those tactics, Fast and Furious was a
midlevel regional investigation that from all reports was going
on pretty successfully.
Mr. Smith. But again, you didn't find out about those
tactics until, say, 6 weeks or 2 months after the death of
Brian Terry; is that correct?
Attorney General Holder. Sometime in February. I think
Agent Terry was killed December 10th or 14th, I believe, of
December.
Mr. Smith. When was anyone in the White House first
informed about the tactics that were used under Operation Fast
and Furious?
Attorney General Holder. I don't know.
Mr. Smith. Did you yourself not inform anyone in the White
House about Operation Fast and Furious?
Attorney General Holder. I am sure there was contact
between staff, and the Justice Department probably, and the
appropriate people in the White House about Fast and Furious. I
don't remember myself ever sharing that information with----
Mr. Smith. How would anyone in the White House have learned
about it, and who would have learned about it under the normal
chain of command?
Attorney General Holder. I am sorry?
Mr. Smith. How would the White House have learned about
Operation Fast and Furious if not from you?
Attorney General Holder. Well, through my staff and the
interactions that we have with the White House Counsel's
Office. That is the nature of----
Mr. Smith. When did your staff inform the White House about
Operation Fast and Furious?
Attorney General Holder. I don't know.
Mr. Smith. Were you ever curious about that?
Attorney General Holder. My focus was on dealing with the
problems associated with Fast and Furious.
Mr. Smith. It seems to me that you would want to know--
would want White House officials to know what was going on in
order to correct the problem.
My time----
Attorney General Holder. My focus was on the tactics and
trying to solve the problem, and not awfully concerned about
what the knowledge was in the White House. That is my
responsibility.
Mr. Smith. I understand, but I still think the White House
would have been informed.
Thank you, Mr. Holder.
The gentleman from Michigan Mr. Conyers, the Ranking
Member, is recognized for his questioning.
Mr. Conyers. Thank you, Chairman Smith.
Attorney General Holder, would you pull your mic up just a
little bit closer, please?
You have made reference to the ATF Multiple Sales Reporting
program for certain types of rifles in States along the
southwest border. This rule is intended to get at the real
problem of gun violence on the border of Mexico. In your view,
has the program been effective? Have we been stopping guns and
saving lives?
Attorney General Holder. Yeah. The rule simply says that
for the multiple sale of certain kinds of weapons, including
AK-47s, if somebody buys more than one over the space of 5 days
in four border States, that that information has to be reported
to the ATF. That has led to actionable leads. It is a very
measured, responsible regulation that has been upheld by a
court that has considered it and said that it is appropriate.
And it is also totally consistent with what we do right now and
have for the last 30 years with regard to the sale of multiple
handguns.
Mr. Conyers. And by the way, I think we repealed the
assault weapon ban, and that has led to a proliferation of
weapons that I think we need to take another look at here in
our Legislature.
Let us talk about the Mortgage Fraud Task Force of the
President and how it is coming along. You know the effect this
has had in our economy and on foreclosures and on families from
one end of the country to the other. How is your staffing and
resources picture in this context?
Attorney General Holder. Well, I think we are doing pretty
well. We have about, I think, 100 people or so who are
presently involved in that task force. Subpoenas have been sent
out; investigations are under way. We are working, I think,
very effectively with a number of U.S. Attorneys as well as our
partners on the State side, I think principally the attorney
general from New York, Eric Schneiderman, as well as other
State attorney generals. So I think the progress we are making
there is very good.
Mr. Conyers. Thank you.
In 2009, you created a working group to review the
Department's profiling guidance that came out in 2003 under
then-Attorney General Ashcroft. In April of this year, 64
Members of Congress wrote to urge you to revise that guidance.
What is the status of the working group? And are there going to
be changes to the guidance? And if you can, what would some of
those changes be?
Attorney General Holder. We are in the process of looking
at that earlier policy and seeing if in light of experience
there are changes that need to be made. I had a meeting
concerning this issue, I think, over the last 2 weeks. It would
be my expectation that to the extent that changes are to be
made, that those would happen relatively soon.
We are certainly working within the Justice Department,
then I suspect we will have to have an interagency group,
because there are a number of agencies whose equities are
implicated by the prospective change. But it is something that
we continue to look at and something in which I have been
personally involved over the last 2 to 3 weeks.
Mr. Conyers. And what was the goal of the so-called
profiling guidance?
Attorney General Holder. Well, to try to make sure that we
did not hamper law enforcement, but at the same time that we
had in place rules, regulations, guidance to those in law
enforcement that did not--so that we did not engage in racial
profiling, which is simply bad law enforcement.
If one looks at al Qaeda, they understand that if we engage
in profiling, they will be more successful. They look for--and
this has been reported--people, as they call it, with clean
skin, people who do not fit a particular profile. Those are the
ones who they are trying to send to harm this Nation, and that
is why profiling certainly in the national security context as
well as, I would say, with regard to domestic law enforcement
is such a bad idea.
Mr. Conyers. Let me squeeze in my last question. Can you
talk a little bit about the charges of selective enforcement of
immigration law? I don't know if you have heard of any of those
kinds of complaints, but can you respond to that for me,
please?
Attorney General Holder. Selective immigration?
Mr. Conyers. Selection enforcement of immigration law.
Attorney General Holder. You mean, by the Federal
Government or----
Mr. Conyers. The Arizona law and other----
Attorney General Holder. The States.
Mr. Conyers. At the State level.
If I can finish this question, Mr. Chairman.
Mr. Smith. Please, answer the question.
Attorney General Holder. We have filed suit against
immigration laws that have been passed by a variety of States.
The Supreme Court has obviously heard argument in connection
with the Arizona law.
The concern that we have is that this is inherently a
Federal responsibility, and that if we allow these State laws
to proliferate, we will have a patchwork of laws that will make
ultimate enforcement of our immigration laws impossible.
Having said that, I understand the frustration that many
States feel. I think it points out the need for a comprehensive
solution to this problem.
Mr. Conyers. Thank you very much.
Mr. Smith. Thank you, Mr. Conyers.
The gentleman from Wisconsin Mr. Sensenbrenner is
recognized for his questions.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
Mr. Attorney General, I do want to echo Mr. Conyers'
commendation of you for coming before us on a very regular
basis. I know it takes a lot of your time to prepare. I also
know that you don't know what is going to get thrown at you,
and sometimes there will be curveballs and beanballs. I hope
mine is a curveball.
I want to talk a little bit about the Florida voter
registration case. And it appeared in The New York Times
yesterday, there was an article there about the State defending
its search for ineligible voters. And Secretary of State Ken
Detzner of Florida has sent a letter to Mr. Herren of the
Voting Section of the Civil Rights Division talking about the
problem. And the problem is simply this, and that is as Florida
is trying to purge its voter registration rolls of noncitizens,
including illegal immigrants, people who are clearly not
eligible to vote, and the Department of Homeland Security has
had a 9-month delay in giving the national voter registration
laws to the State, and now Mr. Herren appears to be taking the
position that Florida can't do anything after the Federal
Government has delayed giving Florida the information that it
needs to do. What can be done to solve this problem?
Attorney General Holder. Well, the problem with the Florida
effort is that it runs counter to the National Voter
Registration Act, which says you can't do this within 90 days
of an election. You can successfully do that which Florida is
trying to do as has been done and has been approved by the
Justice Department in North Carolina and Georgia. They did it
the right way.
The database that I think Florida is requesting is not
necessarily the answer to these problems. That database, as I
understand it, which is a DHS database, does not contain on its
rolls or within that database people who were born in the
United States. That database will therefore be flawed and could
result in the exclusion of people from voting who are native-
born Americans.
Mr. Sensenbrenner. Well, the State of Florida has attempted
to obtain this database for 9 months so that it could do its
thing prior to the 90-day shutoff in the national voter
registration law. And I have a copy of the letter from
Secretary of State Detzner that talks about the due process
protections, such as a notification by certified mail; return
receipt; 30 days to respond; hearing if requested; if the mail
notice is returned as undeliverable, then the names and
addresses appear in a newspaper of general circulation; an
additional 30 days, at the conclusion of the notice-and-hearing
process, the registrar is supposed to make a final
determination based upon the preponderance of the evidence and
allow for an appeal of any determination of ineligibility to a
State circuit court.
Now, you know, this is probably due process times 3 or 4,
maybe even 5 times. I would like to know what rights do
noncitizens, and particularly illegal immigrants, you know,
have to the protection of the Voting Rights Act and the
National Voter Registration Act?
Attorney General Holder. They have no rights, and I stand
with any State official, Federal official who wants to make
sure that our voting system is done in an appropriate way, and
that people who are not allowed to vote in fact do not vote.
But as a result of the way in which Florida has carried
this out, I saw a report that an election official in southern
Florida indicated that about 450 people on the list that--I
believe it was a woman--that she got were indicated to be
people who were not eligible to vote, who, in fact, were
eligible to vote, and I think that points out the problem in
the process that Florida is engaged in.
Mr. Sensenbrenner. With all due respect, Mr. Attorney
General, there is a problem. And any ineligible voter or
fraudulent voter who has a ballot placed in the same ballot box
as hundreds of legitimate voters ends up diluting the votes of
the legitimate voters, and the Federal law is very clear on
that.
And, you know, here the Department of Homeland Security
hasn't given Florida the means to start the process out with
all of these protections that I have just listed. And it seems
to me that if your job is to uphold the law, you know, the law
sets out a process to give the States time to do this, but we
have another agency of the government that you are supposed to
be advising as Attorney General that has prevented the State of
Florida from doing this.
Attorney General Holder. I would say I respectfully
disagree, and I point to you, as I said, other States that
have--I don't know all the ways in which they did it, but who
successfully have implemented a policy that I would agree with.
I don't think we should have people who don't have the ability,
who don't have the right to vote casting votes in our Nation.
North Carolina, Georgia did it.
Mr. Sensenbrenner. Well, then, please help Florida to do
it, because apparently there has been a roadblock here in
Washington. And my time is up.
Mr. Smith. Thank you, Mr. Sensenbrenner.
The gentleman from New York Mr. Nadler is recognized.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Attorney General, we have made several requests to you
to allow us to review the Office of Legal Counsel memo that
reportedly provides the legal justification for the lethal
targeting of U.S. citizens who are terror suspects. The
Department has sought dismissal of cases seeking judicial
review of lethal targeting by arguing, among other things, that
the appropriate check on executive branch conduct here is
Congress, and that information is being shared with Congress to
make that check a meaningful one. Yet we have yet to get any
response to our request. Will you commit to providing that memo
to us and to providing a briefing?
Attorney General Holder. We certainly want to provide
information to the extent that we can with regard to the
process that we use in selecting targets. I gave a speech at
Northwestern University. Mr. Brennan gave a speech here, I
believe----
Mr. Nadler. Excuse me. Will you commit to providing a copy
of the briefing--a copy of the legal memo from OLC?
Attorney General Holder. We will certainly look at that
request and try to determine whether----
Mr. Nadler. And a briefing to the Members of this
Committee?
Attorney General Holder. And we will certainly consider the
possibility of a briefing.
Mr. Nadler. The possibility? You won't commit to giving a
briefing to this Committee?
Attorney General Holder. I think that we are going to
probably be in a position to provide a briefing, but I would
like to hear from the involved people in the Intelligence
Community as well as people at OLC about how we might
structure----
Mr. Nadler. You will get back to us on that within, let us
say, a month?
Attorney General Holder. We can do that.
Mr. Nadler. Thank you.
When running for President and talking about medical
marijuana being legally used around the country in certain
jurisdictions, President Obama said the following, quote: ``I
am not going to be using Justice Department resources to try to
circumvent State laws on this issue,'' closed quote. Apparently
the Department has not followed the President's admonition.
Since 2009, DOJ has conducted around 200 raids on medical
marijuana dispensaries and growers and brought more than 60
indictments. It is my understanding that the Department has a
more aggressive record on prosecuting these cases in this
Administration than under the previous Administration.
The President clearly did not want to prioritize
prosecutions involving medical marijuana. And while I
understand selling and possessing marijuana remains against
Federal law, the citizens of 17 States and the District of
Columbia believe its medical use should be legal.
Given these facts, why is DOJ focused so extensively on
investigating and punishing those who legally grow and sell
marijuana legally under local law, contrary to the apparent
intent of what the President said on this subject?
Attorney General Holder. See, this is inconsistent with
these little things called the facts. The Justice Department
indicated in a memo that went out by the Deputy--then-Deputy
Attorney General that we were not going to use the limited
resources that we have to go after people who are acting in
conformity with State law, people who had serious illnesses,
people who were acting, as I said, consistent with State law.
But one has to deal with the reality that there are certain
people who took advantage of these State laws and a different
policy that this Administration announced than the previous
Administration had, and have come up with ways in which they
are taking advantage of these State laws and going beyond that
which the States have authorized. Those are the only cases that
we----
Mr. Nadler. So you are saying that you are not targeting
people who are growing and distributing marijuana only for
medical purposes and following the applicable State law?
Attorney General Holder. Yes. We limit our enforcement
efforts to those individuals, organizations that are acting out
of conformity with State laws, or, in the case of instances in
Colorado, where distribution centers were placed within close
proximity to schools.
Mr. Nadler. Okay. On September 23, 2009, you issued a memo
setting forth policies and procedures governing the executive
branch's invocation of the state secrets privilege. That policy
requires your personal approval for the Department to defend
assertion of the privilege in litigation. In how many cases
since September of 2009 have approved personally invocation of
the privilege?
Attorney General Holder. I would have to look at that.
There have not been many. I think one, two, three, something
along those lines. I am not sure.
Now, those numbers get skewed a little bit because in the
second circuit, in order to use the SEPA statute, the second
circuit has a rule that says we have to invoke the state's
privilege, but I don't think that is the same----
Mr. Nadler. I have a number of other more specific
questions on this that I am going to submit to you, but I see I
am coming to my end of time, so I have one further question on
this.
You do not indicate in this policy whether the
Administration will agree to judicial review of the basis for
invoking the privilege. The prior Administration took the
position that information could not even be disclosed in camera
to an Article III judge, thus ensuring that there was no
judicial review of whether the privilege was being properly
invoked.
What is your position as to judicial review of the
information that the government seeks to withhold in two key
respects: One, can a judge review the allegedly privileged
information; and two, can the judge disagree with the executive
branch's decision as to whether the privilege is properly
invoked?
Attorney General Holder. Well, I think that we have shared
information with Article III judges, but the way in which the
privilege is set out, it is, I think, at the end of the day for
the executive branch to make that determination. But we have
put in place a process that requires multiple levels of review.
Mr. Nadler. Within the executive branch. But you are saying
that you do not agree that ultimately a decision should be
subject to judicial approval or disapproval as to invocation of
the privilege?
Attorney General Holder. Ultimately a judge, I think, would
probably override our assertion of the privilege, and then we
would have to decide whether or not we wanted to dismiss the
case. But our hope is that through the process that we go
through, we only invoke the privilege where it is absolutely
necessary. And I think if we look at the statistics, we would
probably see that we have invoked the privilege far fewer times
than our predecessors.
Mr. Nadler. I hope you will share those statistics with us.
Thank you.
Mr. Smith. Thank you, Mr. Nadler.
The gentleman from California Mr. Gallegly is recognized.
Mr. Gallegly. Thank you very much, Mr. Chairman.
Good to see you again, Attorney General Holder.
On your last visit here, we asked about a few issues that
we would like to get a response from. In fact, I am
disappointed that to date your office has been unable to
provide answers to what I consider some very simple questions
that we asked in that meeting having to do with prosecutions of
worksite enforcement cases. I am especially interested in the
number of DOJ worksite enforcement prosecutions for each of the
last 4 years, the number of prosecutions of illegal workers who
have been using fraudulent documents. When can I realistically
expect to get a response on that?
Attorney General Holder. I was under the impression that we
had responded to all of the questions that were put to me
either during the hearing or as I guess we call ``Q-fers.'' If
that is not the case, I will make sure----
Mr. Gallegly. I have not received them. In fact, we will be
happy to reiterate with specificity what those were, but it is
pretty straightforward.
Attorney General Holder. All right. We will get you those
numbers, and I apologize if you have not gotten them.
Mr. Gallegly. Okay. We will work with your office.
You know, we all know that many illegal immigrants are
using fraudulent Social Security numbers or individual taxpayer
numbers to take jobs from American citizens. I don't think
there is any question about that in anyone's mind. They also
receive taxpayer benefits such as child tax credits, earned
income tax credits. There have been reports that some illegal
immigrants are claiming tax credits for children not even
living in the United States.
What specific--and I want to emphasize the word
``specific''--steps are being used by DOJ to stop this fraud,
recover taxpayer money, deport the illegal immigrants who have
committed the criminal fraud?
Attorney General Holder. Well, you know, we work with our
partners at DHS to come up with a number of ways in which we
try to make sure that people, through worksite enforcement,
through reaching out to employers, to make it clear what the
policies are, what the law is. We use a variety of techniques
to try to make sure that the kinds of people you are talking
about are not, in fact, getting benefits to which they are not
entitled. It is something that we have worked, I think, pretty
effectively with with DHS.
Mr. Gallegly. Would this group of individuals that I am
speaking about, those that have clearly committed fraud, are
these folks on a priority list for deportation, or are they
among those that have been given an exemption or a review to
get a temporary green card?
Attorney General Holder. No. I mean, I think that we look--
we certainly have prioritized those people for deportation, and
we have tried to place at the head of that list people who
potentially pose criminal problems for those of us in the
United States or in the immigrant community, people who have
engaged in violent acts. Those are the ones we are emphasizing.
It doesn't mean that those further down the list are not also
people who we are trying to deport----
Mr. Gallegly. Well, we know, and I am glad to hear, that
acts of violence by criminal aliens are at the top of the list,
but the fraud issue, to me, is also an offense that should be
very close to the top of the list when they are stealing the
taxpayers' dollars that could otherwise be used to help your
Department, for instance.
Also back in December, we talked about DOJ addressing the
issue of Medicare fraud. And we know by many accounts there is
as much as $60 billion a year that has been used as being
stolen from our Medicare program fraudulently. What steps is
DOJ taking to increase prosecutions on Medicare and also
Medicaid fraud?
Attorney General Holder. I am sorry. We are working with
our partners at DHS, Kathleen Sebelius, the Secretary at HHS,
have been going around the country and expanding what we call
the Heat Strike Force teams to increase the Federal presence in
our investigative capacity in those cities where we have
identified these problems. And what we have seen is that we
have received in the settlements in the prosecutions that we
have brought record amounts of money brought back into the
Federal Government. As I indicated in my opening statement, for
every dollar that we spend in enforcement, we bring back $7 to
the Federal Government. And it is something that I think should
be funded at as high a level as we possibly can.
Mr. Gallegly. One closing question. Could you provide
information to the Committee on what specific enforcement is
taking place in this area in California, specifically southern
California, and more specifically in and around the area of Los
Angeles and areas like Glendale, California?
Attorney General Holder. We can do that. I can certainly
make clear to you what we are doing generally with regard to
all the cities that we have targeted, but I can also share with
you what we are doing in California, in the area of California.
Mr. Gallegly. Thank you, Mr. Chairman. I yield back.
Mr. Smith. Thank you, Mr. Gallegly.
The gentleman from California Mr. Berman is recognized.
Mr. Berman. Thank you very much, Mr. Chairman, and welcome,
Attorney General.
I want to start by commending you and the Department for
your diligent work defending U.S. taxpayers against fraud by
government contractors. Every year I watch the total amount
recovered for taxpayers under the False Claims Act increase,
and I am grateful for the work that the Department and
whistleblowers do together to protect our tax dollars. I think
we are now up to something just over $30 billion. And a lot of
my colleagues today are focusing on their beefs with you today.
I want to talk about this subject, because here I think here
the Justice Department and you are doing this right, and it
seems the law is quite effective, and I would like to make sure
it stays that way.
Earlier this year you invited me to take part in the
commemoration of the 25th anniversary of the False Claims Act,
and though I wasn't able to participate in the panel discussion
that followed the main event, I am told that one of the issues
discussed on that panel was whether or not we should change how
relators are compensated for their efforts and recovery on
behalf of the taxpayers.
In October of last year, the United States Chamber of
Commerce put out a report suggesting that a hard cap of $15
million would be adequate to compensate any relator. Their
logic seemed to be that that amount would cover most people's
future earnings if their efforts as a whistleblower kept them
from working again. The report also suggests that such a cap
would not deter whistleblowers from pursuing qui tam cases,
because in their study of 26 cases, the whistleblowers
responded to a question about why they would be willing to
bring suit, and most of them said that they did it because it
was the right thing to do.
I believe that, but I also know for a fact that the
whistleblowers put themselves at tremendous risk when they make
the decision to file suit and try to recover on behalf of the
government and the American taxpayer. These cases are expensive
to pursue, and they can last for years. They require
commitment, and I don't know if a general good feeling about,
quote, ``doing right'' is what will make someone remain
committed to the cause for the long haul.
Right now relators can be awarded a percentage between 15
and 30 percent depending upon the certain factors such as
whether or not the government joined the relators as
plaintiffs. In my mind, and I think the history of the act
bears this out, this percentage share encourages a relator to
pursue a case until they can recover an amount equal to the
entire impact of their fraud as opposed to settling when the
case goes too long, perhaps because they know there is a hard
cap, and they can only recover so much money.
Though the Chamber argues that a hard cap would save the
government money, I have to wonder how many cases it would
deter or at least reduce the recovery for the taxpayers. In
today's world, where some of these cases recover billions of
dollars, if a hard cap deterred even one such case, it would be
a very costly endeavor for taxpayers.
When we consider the False Claims Act amendments in 1986
and in revisions since, proposals to enforce a hard cap have
not been well-received. Of course, there are reasons that
defendants fighting qui tam suits would want to limit damages,
but I am more focused on what works best for the taxpayer. I
believe what we have now is working well.
I sent you a letter on this subject earlier this month, but
I wonder if you could share some thoughts with me now about
whether the Department remains committed to relaters being
awarded a percent share or if you support a shift to a hard
cap.
Attorney General Holder. Well, I have to say that I am not
totally familiar with the proposal that you have described. But
I can say that the act, as it is presently constructed, is
working extremely, extremely well. And you are right, we asked
you to come to the Justice Department to celebrate the success
that we have had over the past 25 years with regard to an act
that you were instrumental in passing.
Over the past 25 years, we have had nearly 8,000 qui tam
cases that have filed that have yielded more than $21 billion
in recoveries--$21 billion in recoveries--for the United
States, $3.4 billion in awards to relaters. In fiscal year 2011
alone, the Department recovered more than $2.78 billion in qui
tam cases; relaters received about $530 million as their
statutory shares.
The statute as it is presently constructed works, and works
quite well. I would be reluctant to fool around with a formula
that for the past 25 years has shown to be an effective tool in
getting at fraud and incentivizing people to stay involved in
the process and working with government as partners. Now,
again, I will look at it, but I have to tell you that, on the
basis of my examination of the regulation as it exists, the
statute as it exists, I would be extremely reluctant to tamper
with it.
Mr. Smith. Thank you, Mr. Berman.
The gentleman from Virginia, Mr. Goodlatte, is recognized.
Mr. Goodlatte. Thank you, Mr. Chairman.
General Holder, both the Criminal Division head Lanny
Breuer and his deputy, Jason Weinstein, had knowledge that the
ATF let a bunch of guns walk, and some were recovered in
Mexico, all related to the Fast and Furious scandal.
In a prior operation, when they reviewed the February 4,
2011, letter that falsely denied the ATF knowingly allowed the
sale of assault weapons to a straw purchaser who transported
them to Mexico, do you think it is a serious offense for an
individual to mislead the Congress?
Attorney General Holder. Well, first, with regard to the
question, I think you have it a little off there. The two
individuals who you talk about, Mr. Weinstein and Mr. Breuer,
did not know about the tactics used in Fast and Furious until
the beginning of last year. The----
Mr. Goodlatte. But they did acknowledge that, quote, ``ATF
let a bunch of guns walk,'' and, quote, ``some were recovered
in Mexico,'' end quote.
Attorney General Holder. That was in connection, I believe,
with Operation Wide Receiver that occurred----
Mr. Goodlatte. Correct.
Attorney General Holder [continuing]. In the prior
Administration.
Mr. Goodlatte. Correct. Correct. But they did not
acknowledge that in their communication with the Congress. So
my question to you is, do you think it is a serious offense for
an individual to mislead the Congress about what they know
about what is going on in your department?
Attorney General Holder. Well, to the contrary, they did
acknowledge to Congress that they did have that information
about Wide Receiver and said that it was a mistake on their
part not to share it with the leadership of the Department,
that prior knowledge. Also indicated that it was a mistake on
their part not to use that prior knowledge when they were
looking at Fast and Furious to try to understand that they
should have been more sensitive to what was going on with
regard to Fast and Furious.
Mr. Goodlatte. What consequences have they faced as a
result of that?
Attorney General Holder. Well, they are certainly--they
have apologized. They have been----
Mr. Goodlatte. An apology is a good thing, but it is not a
consequence for gross mismanagement of an operation that cost
the life of one border security guard. Why haven't these two
most senior political attorneys in the Criminal Division faced
any consequences at all for their participation in this lack of
being forthcoming to the Congress and to others and for not
putting a halt to the subsequent activities that took place?
Attorney General Holder. Well, again, I think your premises
are wrong. They have been forthcoming to Congress. They have
testified or been interviewed in a way that I think is
consistent with the facts. They have been very forthright
about----
Mr. Goodlatte. But what about the underlying decision of
allowing this to go forward?
Attorney General Holder. And that is the another part of, I
think, your premise that is not right. They were not in charge
of, they did not have operation control of Operation Fast and
Furious.
Mr. Goodlatte. But when they knew about it, what did they
do about it?
Attorney General Holder. Well, that happens about the same
time everybody in Washington finally hears about these tactics.
They were assured by the people in Arizona that the gun-walking
in fact did not occur. That is the information that they got.
If you look at the materials that we submitted to Congress, the
deliberative materials that we submitted to Congress around the
February 4th letter, you will see that neither Mr. Breuer nor
Mr. Weinstein had information about the use of--they were, in
fact, assured that gun-walking tactics were not employed with
regard to Operation Fast and Furious.
Mr. Goodlatte. Now, with regard to the prosecution of
Senator Ted Stevens in Alaska, in that case Senator Stevens was
falsely prosecuted. His reputation was ruined; he was not re-
elected to the United States Senate. And it was determined that
the U.S. prosecutors were engaged in outright fabricating of
some evidence, deliberately withholding information that
revealed the Senator's innocence. And, ultimately, they were
held in contempt of court, and the charges against Senator
Stevens were dismissed.
But what consequences have they faced? To my knowledge, the
only consequences for engaging in the outright fabrication of
evidence and deliberately withholding exculpatory evidence that
would have revealed the Senator's innocence was that one of
them was suspended without pay for 40 days and the other for 15
days. Why were not these individuals fired?
Attorney General Holder. Well, there----
Mr. Goodlatte. Some would say they should have been
disbarred for that activity. That is not the purview of the
Justice Department, but, certainly, no longer having them on
the payroll of the Justice Department would be a good step in
the right direction, wouldn't it?
Attorney General Holder. Well, again, there are a number of
premises there that are inconsistent with the facts.
This is a case that was brought by the prior
Administration. It was not dismissed by the court. I dismissed
the case, this Attorney General dismissed that case after I had
concerns about the way in which we had failed to turn over
information that the defense had a right to.
The OPR report looked at the matter and made a
determination that they did not do so intentionally. It is
inconsistent or it is at tension with the report that was done
by Mr. Schuelke and the recommendation made by those people
charged with the responsibilities that those penalties should
be imposed, I guess 40 days and 15 days.
This is not something that the Attorney General, the Deputy
Attorney General is involved in, the determinations as to how
those cases--what punishment should be made or findings of fact
is done by people who are career within the Department. The
same thing happened with regard to the determination concerning
Mr. Yoo and the creation of those OLC memos involving
interrogation techniques. Whether or not the Attorney General
agrees or disagrees with what the career people do, the
tradition in the Department is that that is something for
career people charged with that responsibility to ultimately
determine.
Mr. Goodlatte. Mr. Chairman, I would ask that a letter
dated February 4, 2011, signed by Ronald Weich, Assistant
Attorney General, which I think rebut the statements made by
the Attorney General with regard to what was known and what was
not known about Operation Wide Receiver and Operation Fast and
Furious, be made a part of the record.
Mr. Smith. Without objection, the documents will be made a
part of the record.
[The information referred to follows:]
__________
Mr. Smith. The gentleman from Virginia, Mr. Scott, is
recognized.
Mr. Scott. Thank you. Thank you, Mr. Chairman.
And thank you, Mr. Attorney General, for being with us
today.
Mr. Holder, you have been criticized for not turning over
information upon request to one of the Committees. Did some of
those requests involve information pertaining to confidential
informants and wiretaps under seal, court-ordered seal, and
information related to ongoing investigations?
Attorney General Holder. Yes, that is true, but we have
turned over a very significant amount of information. We have
collected data from 240 custodians. We have processed millions
of electronic records. We have turned over 7,600 pages on 46
separate productions. We have----
Mr. Scott. Well, could you tell us, what is wrong with
handing over information involving confidential informants,
wiretap information under court seal, and information related
to ongoing investigations?
Attorney General Holder. We are, by law, prohibited from
discussing or turning over the contents of wiretap-related
material. There is a criminal provision that has a 5-year
penalty that prevents us from doing that.
And there is also a very practical reason. There are
concerns that one would have about people who are involved in
these matters. You might put victims' safety at risk. You might
put at risk the success of a prosecution.
Those are all the reasons why there are very tight
restrictions on the provision of material connected to
wiretaps.
Mr. Scott. Thank you.
Mr. Issa. Would the gentleman yield?
Mr. Scott. I have very little time.
Mr. Issa. I will be very brief.
Mr. Scott. Go ahead.
Mr. Issa. We did not request any wiretaps under seal, since
I am the person who signed the subpoenas.
Mr. Scott. Thank you.
Reclaiming my time, Mr. Attorney General, Section 5 is
there to prevent discriminatory election practices from going
into effect. If you didn't have Section 5, discriminatory
voting changes could go into effect until the victims of
discrimination raised enough money to get into court to get an
injunction. Those who benefit from the discrimination would get
to legislate until the law is overturned. And when overturned,
they would get to run with all the advantages of incumbency as
a result of their discrimination.
And so there is an incentive to keep discriminating. But
under Section 5, the burden is on covered States to demonstrate
that an election change does not have a discriminatory effect
and purpose. Section 5-covered States were not selected
randomly; they were covered the old-fashioned way: They earned
it, with a history of discrimination.
Now, how is the Department of Justice using Section 5 to
prevent discriminatory voting practices? And, specifically,
what are you doing in Florida to prohibit purging of voters,
according to press reports, that include decorated war veterans
clearly eligible to vote?
Attorney General Holder. Well, I think firstly, just a bit
of an overview. And this will take just a second.
You have to understand that over the course of the time in
which I have been Attorney General, we have looked at about
1,800 requests for preclearance under Section 5. We have
opposed 11--11. Eighteen hundred requests, we have opposed 11.
Now, included among those is what Florida has been trying to do
with regard to the Section 5-covered counties, that one of
which--one of those changes which a Federal judge has already
said is inappropriate.
Section 5 was reauthorized by a near-unanimous Congress,
signed by President Bush, findings made by this Congress that
the need for Section 5 continues, reauthorized, I believe,
until 2031. It is the position of this Department of Justice
and certainly this Attorney General that we will vigorously
defend and vigorously use Section 5. The need for it is still
there.
Mr. Scott. Thank you.
The first bill this President signed was the Lilly
Ledbetter Act dealing with discrimination in employment. One of
the things that, in talking about discrimination in employment,
in 1965 President Johnson signed an Executive order prohibiting
all discrimination in employment with Federal contracts. I
understand this Administration still allows discrimination in
Federal contracts based on religion, if it is a so-called
faith-based group.
My question is, do they need permission, a certification to
qualify for the right to discriminate? Or do they just get the
right to discriminate based on the fact that they are faith-
based organizations using Federal money?
Attorney General Holder. Well, I think we are committed to
ensuring that we partner with faith-based organizations in a
way that is consistent with our laws, our values. And the
Department will continue to evaluate legal questions that arise
with respect to these programs and try to ensure that we--make
sure that we ensure that we fully comply with all of the
applicable laws.
Mr. Scott. Does that mean they can discriminate?
Mr. Smith. The gentleman's time has expired.
Mr. Scott. I think it was a yes-or-no answer.
Mr. Smith. Okay.
Mr. Attorney General, go on. If you would, answer the
question.
Attorney General Holder. As I said, we try to do this--we
look at the policies and try to make sure that they act in a
way that is consistent with law.
Mr. Smith. Okay. Thank you, Mr. Scott.
The Chairman from California, Mr. Lungren, is recognized.
Mr. Lungren. Thank you very much, Mr. Chairman.
Mr. Attorney General, I would just follow up on what my
friend from Virginia, Mr. Goodlatte, had to say with respect to
the Stevens case. I realize that you reassigned people after
that. I realize it was an investigation and indictment that
came before you were Attorney General. That is not the point.
The point is, if you have no real consequences now, you are
going to have no real changes in the future.
That was conduct that was stated by the judge to be
outrageous. He held a hearing as to whether a new trial ought
to be called. Before he made a ruling, you did come forward
with a motion to dismiss, recognizing the problems internally.
The investigations showed widespread misconduct among the whole
team, and yet I am unaware of anybody that was fired.
And Senator Stevens lost his election, but, more
importantly, he lost his reputation. And I happen to think that
in the absence of serious action taken against employees of
either the Department of Justice prosecutorial corps or the
FBI, that, frankly, the message is not seriously received. So I
would just like to state that for the record.
And now, Mr. Attorney General, if I were lucky enough to be
invited down to meet you or see you at your office at the
Justice Department, wouldn't I have to show a government-issued
photo ID to get in to see you?
Attorney General Holder. You might.
Mr. Lungren. If I were to go to the Federal courthouse here
in D.C. either as a party or as an attorney, wouldn't I have to
show a government-issued photo ID?
Attorney General Holder. That has not been my experience
here in D.C. I don't--you know.
Mr. Lungren. Some Federal courts--are you aware that that
is required in some Federal courts in this land?
Attorney General Holder. I don't know.
Mr. Lungren. Are you aware that if I have to come here from
California to exercise my constitutional right of travel and as
an ordinary citizen petition the government for a redress of my
grievances, I have to show a government-issued photo ID, do I
not?
Attorney General Holder. That one, yes. To get on a plane,
you have to have a photo ID.
Mr. Lungren. Okay. And that does involve the constitutional
right of travel among the States, correct?
Attorney General Holder. Yep. The Supreme Court has said
that the right to travel is of constitutional dimension.
Mr. Lungren. So is your Justice Department investigating
the discriminatory effect of those laws with respect to
someone's constitutional right to travel or constitutional
right to visit you? I mean, the Constitution doesn't say,
petition the government for redress of grievances only goes to
some people. I mean, if I have a complaint with the Justice
Department and want to come to the Justice Department, are you
inhibiting me, affecting my constitutional right by requiring
me to show a government-issued photo ID?
Attorney General Holder. No, but let's get to the bottom
line here. That----
Mr. Lungren. Well, no, this--my question is----
Attorney General Holder. All right. Well, I will give you
an answer. The answer----
Mr. Lungren. Well, that is all I am asking.
Attorney General Holder. The answer is that, with regard to
the limited things that you have discussed, it might not have
an impact on your constitutional right, but that some of the
laws that we have challenged do have an impact on a person's
ability to exercise that most fundamental of constitutional
rights, and that is the right to vote.
Mr. Lungren. It is a fundamental right to petition the
government to redress my grievances. Don't you think that is as
important as, quote/unquote, the ``right to vote''?
Attorney General Holder. I would agree with President
Johnson, with what he said after the 1965 Voting Rights Act was
passed, that voting is the most important right that we have as
American citizens. It is what distinguishes this country and
makes it exceptional as compared to other Nations around the
world.
Mr. Lungren. Okay. I also happen to think it is important
that we have the opportunity to petition the government to
redress the grievances. I think that is as fundamental a
concept.
Attorney General Holder. But through the vote, I can change
the government. I have that ability through my right to vote.
Mr. Lungren. Well, you can sue me in court. You can
threaten to sue me in court. And as a proud individual American
citizen, I suppose I have a right to at least talk to you about
whether you are going to bring me before the court and bring
the majesty of the government against me. And I would think
that that is as important a right.
Now----
Attorney General Holder. Well, I certainly have that
ability to talk to you. But if I disagree with you, at the end
of the day, I have the ability to cast a ballot----
Mr. Lungren. But I can't even come in and talk to you
unless I show a government-issued photo ID, is my point.
Now----
Attorney General Holder. No, that is not true in the
government. That is not true at the Justice Department. If you
were to show up at the Justice Department, somebody could vouch
for you and you could come into the Department and we could
have a very civil, I am sure, conversation.
Mr. Lungren. Is that right? Okay. I haven't tried that with
TSA. That doesn't work very, very well in terms of being able
to get on an airplane to fly back here to knock on your door to
get to see you.
Attorney General Holder. Well, there are terrorists who are
trying to bring down planes, as we have seen over the course of
the last, I guess, 12 years.
Mr. Lungren. And there are people who cheat about voting
when they don't have a right to vote.
Attorney General Holder. We do not see that to the
proportions that people have said, you know, in an attempt to
try to justify these photo ID laws. All of the, I think,
empirical and neutral evidence shows that questions of vote
fraud do not exist to the extent that people say that it does
exist.
Mr. Lungren. So the Supreme Court was wrong in its decision
in 2007 when it said that States have a legitimate interest in
requiring photo IDs for voters even absent evidence of
widespread fraud in order to inspire confidence in the
electoral system? You disagree with the Court on that?
Attorney General Holder. You know, what is interesting
there--and please expand----
Mr. Smith. If you will, answer the question, and then we
will move on.
Attorney General Holder. Sure.
The Supreme Court--the Crawford case is fundamentally
different from that which we are talking about now. That was
not a Section 5 case. Indiana is not covered by Section 5 of
the Voting Rights Act.
And I would just--with all due respect, Attorney General
Mukasey talked about the Crawford decision, the Indiana
decision, and this tells how it is different. He says that
``the Court acknowledged the undeniable fact that voter ID laws
can burden some citizens' right to vote. It is important for
States to implement and administer such laws in a way that
minimizes that possibility.'' He then said, ``We will not
hesitate to use the tools available to us, including the Voting
Rights Act, if these laws, important though they may be, are
used improperly to deny the right to vote.''
That is Michael Mukasey talking about the Indiana Crawford
decision--Michael Mukasey, not Eric Holder, Michael Mukasey.
Mr. Smith. Thank you, Mr. Lungren.
The Chairman from North Carolina, Mr. Watt, is recognized.
Mr. Watt. Thank you, Mr. Chairman.
Let me start by just expressing my disappointment that some
of my colleagues are spending so much time advancing the notion
that we should be disqualifying people from exercising the most
basic right that they have in our democracy, the right to vote.
And that this is the Judiciary Committee in which these
arguments are being advanced is just disappointing to me.
Second, I want to applaud the Justice Department for some
work that they are doing in my congressional district in
particular, some very high-level cases fighting drug
trafficking, protecting against child predators, a bunch of
money we spent on the COPS program. And the most vigorous
supporters of the COPS program are the most conservative
sheriffs in my congressional district because they have been
able to access funding to beef up their law enforcement
capacity.
So I won't go back to the voting rights part of this
because I think I will get too emotional about that. Let me
deal with the thing that is under my Subcommittee's
jurisdiction, the one that I am the Ranking Member on, and that
is, we have made some efforts to try to do something about
piracy. We were not successful legislatively, but the problem
has not gone away.
A recent article in USA Today notes the proliferation of
dangerous counterfeit products that pose safety concerns for
the American public. Many of these products, including
counterfeit pharmaceuticals, are available online and come from
foreign sources.
In January of this year, the Department of Justice issued
indictments against Megaupload, a foreign-based Web site that
was charged with illegally infringing the copyrights of
American businesses. And now I note that some group has--what
is it called, Anonymous--unleashed a series of cyber attacks in
the aftermath of the indictments against Megaupload. So now
there is a connection between piracy on the one hand and
cybersecurity on the other hand.
Can you just talk to us about the real threats that we have
in that area, both on the piracy side of this issue and on the
cybersecurity, and their connections just a little bit so we
will have some background that at least informs the American
people of how serious the problem is?
Attorney General Holder. I mean, the piracy issue has a
number of dimensions to it. It is an economic issue, it is a
jobs issue. When the theft of our intellectual property or the
methods that we use to produce things is stolen by other
organizations or by other countries, it has a direct impact on
our economy.
There is also a safety factor. Health items, medicines that
are produced in a way that are inconsistent with the great
standards we have in the United States, then sold back to the
United States or sold in other countries, can put people at
risk. The whole question of various parts that can be used in
airplanes. Other things that are not done in a way consistent
with the way in which our intellectual property standards are
done can have a negative impact on safety in that way.
So the piracy question is one that has economic
consequences as well as safety consequences. If one looks at
the whole cyber issues, again, these are national security
issues. The ability of foreign countries or organizations to
have an impact on our infrastructure, to use cyber tools to
ferret out secret information from the United States, all puts
our Nation at risk and is worthy of the attention of, I think,
this Committee, this Congress, and the executive branch. And I
would hope that we would be able to work together to come up
with a way in which we could craft tools to deal with what is
truly a 21st-century problem.
Mr. Watt. I thank you. And at the risk of not going over
time like some of my colleagues have, I will just stop there,
because any other question I could ask would be well over into
the next person's time.
So I will yield back, Mr. Chairman.
Mr. Smith. Thank you, Mr. Watt.
The gentleman from California, Mr. Issa, is recognized.
Mr. Issa. Thank you, Mr. Chairman.
Attorney General, December 14, 2010, Brian Terry was gunned
down, and we began knowing more about Fast and Furious shortly
thereafter. But you have said, people representing you have
said repeatedly that you didn't know about it before then.
I have sent you a number of letters. Senator Grassley has
sent you a number of letters. You mentioned in your opening
statement the Speaker's letter. The Speaker did not limit the
scope of the subpoenas you are under an obligation to respond
to. He simply asked you for a response to two key areas. He did
not revoke any subpoenas.
However, you implied that we were working together, when,
in fact, since May 18th, nothing--nothing--has come from your
department, not one shred of paper.
I want to ask you first of all today, have you and your
attorneys produced internally the materials responsive to the
subpoenas?
Attorney General Holder. We believe that we have responded
to the subpoenas----
Mr. Issa. No, Mr. Attorney General, you are not a good
witness. A good witness answers the question asked. So let's go
back again. Have you and your attorneys produced internally the
materials responsible? In other words, have you taken the time
to look up our subpoena and find out what material you have
responsive to it? Or have you simply invented a privilege that
doesn't exist?
Attorney General Holder. You are saying internally, have
we----
Mr. Issa. Internally, have you pulled all that information?
Attorney General Holder. We have looked at 240 custodians,
we have processed millions of electronic records, and we have
reviewed over 140,000 documents and produced to you about
7,600----
Mr. Issa. So, 140,000 documents. How many documents are
responsive but you are withholding at this time?
Attorney General Holder. Well, we have produced 7,600----
Mr. Issa. Look, I don't want to hear about the 7,600.
Ms. Jackson Lee. Mr. Chairman, I would beg to allow----
Mr. Issa. The lady is out of order. Would the lady please
suspend.
Ms. Jackson Lee. Mr. Chairman, a----
Mr. Issa. This is my time.
Ms. Jackson Lee [continuing]. Parliamentary inquiry. Excuse
me, Mr. Chairman. I would beg to allow the Attorney General to
be able to finish his answer.
Mr. Smith. The Attorney General will be allowed to answer
the question.
Ms. Jackson Lee. I thank the Chairman.
Mr. Smith. And the Attorney General will have more time to
do that if we don't have interruptions.
Mr. Issa. And I would like my time reclaimed that was used
up by the gentlelady.
Mr. Smith. You will be given additional time----
Mr. Watt. Mr. Chairman, I suggest we take back the time
that Mr. Lungren used, the 2 minutes over his time that he
used, and----
Mr. Issa. If you want to give me an additional 2 minutes, I
am fine with it.
Mr. Watt. No, I am going to give you the 45 seconds I
yielded back. But if we are going to apply a rule on one side
of this aisle----
Mr. Smith. Let's get back to----
Mr. Watt [continuing]. Then we ought to apply the rule
consistently. That is the point I am trying to make.
Mr. Smith. Let's get back to regular order. The gentleman
from California has the time, and the Attorney General will be
allowed to answer the question.
Mr. Issa. Isn't it true, Mr. Attorney General, that you
have not produced a log of materials withheld, even though our
investigators have asked for it?
Attorney General Holder. I know that--I am not sure about
that. I know that the----
Mr. Issa. Okay. I am sure you didn't. So let's move on.
March 15, 2010, before Brian Terry was gunned down; April
19, 2010, before Brian Terry was gunned down; May 7, 2010,
before Brian Terry was gunned down; May 17, 2010, before Brian
Terry was gunned down; June 2, 2010, before Brian Terry was
gunned down; July 2, the real date of our independence, 2010--
obviously earlier--before Brian Terry was gunned down.
These wiretap applications which we did not subpoena but
which were given to us by a furious group of whistleblowers
that are tired of your stonewalling indicate that a number of
key individuals in your Administration in fact were responsible
for information contained in here that clearly shows that the
tactics of Fast and Furious were known. They were known and are
contained in these wiretaps.
I understand you have read these wiretaps since we brought
them to your attention. Is that correct?
Attorney General Holder. I have read them. And I disagree
with the conclusion you have just reached.
Mr. Issa. So let me go through a very simple line of
questioning, if I may, Mr. Attorney General.
James Cole, Deputy Attorney General, has written that the
Department has a greater obligation than just checking the
legal sufficiency in approving wiretap application. He thinks
that applications also have to comply with DOJ policy. Is that
correct?
Attorney General Holder. Applications have to agree with
DOJ policy?
Mr. Issa. That is what he said.
Attorney General Holder. Sure.
Mr. Issa. Okay.
During a transcribed interview, Deputy Assistant Attorney
General Jason Weinstein testified that senior officials
approving the wiretap applications do not read the wiretap
applications. Is this practice acceptable to you?
Attorney General Holder. They read summaries of the
applications, and that is a process that has been used by this
Administration and by all previous Administrations. It is the
way in which the Office of Enforcement----
Mr. Issa. And are you aware that Federal----
Attorney General Holder. Let me answer the question.
Mr. Issa. Are Federal judges, to your knowledge----
Attorney General Holder. Can I answer my question, the
question you have asked me?
Mr. Issa. No. You have given me a sufficient answer
considering the amount of questions I have and the amount of
time I have.
You are okay with that practice? You have already answered
that.
So would you agree that senior officials are responsible
for documents they signed? I would assume the answer is yes.
So now let me ask you the question. Jason Weinstein, is he
responsible for what is in these wiretaps?
Attorney General Holder. Is he responsible----
Mr. Issa. He is a responsible officer under statute. Is he
responsible for them even if he only read a summary?
Attorney General Holder. He did not create those
affidavits. He did not create that material. He would have been
a person, as a Deputy Assistant Attorney General, who would
review the----
Mr. Issa. So when Congress writes a statute requiring
certain individuals be responsible, such as Jason Weinstein,
Lanny Breuer, and yourself----
Mr. Watt. Regular order, Mr. Chairman. Regular order, Mr.
Chairman.
Mr. Issa. I am in the middle of a question.
Mr. Smith. The Attorney General will be allowed to answer
this question.
Mr. Watt. He hasn't asked the question, Mr. Chairman.
Mr. Issa. I am halfway through it if you will quit
interrupting.
If in fact the statute says they are responsible, and if in
fact they are not read, then in fact----
Mr. Watt. Regular order, Mr. Chairman.
Mr. Issa [continuing]. How are the American people to
understand who is----
Mr. Watt. Regular order, Mr. Chairman.
Mr. Issa [continuing]. Responsible for what is contained in
these documents----
Mr. Smith. The Attorney General will be allowed to answer
this question.
Mr. Issa. Because anyone of ordinary reading, including the
ATF director, former director, Melson, anyone reading these,
according to him, would be sick to their stomach because they
would be immediately aware----
Mr. Watt. Does he have a question, Mr. Chairman?
Mr. Issa. So who is responsible, Mr. Attorney General?
Attorney General Holder. All right. You have really
conflated a bunch of things here.
The responsibility----
Mr. Issa. You have delivered so little in----
Mr. Watt. Regular order now, Mr. Chairman. Will he be
allowed to answer the question now?
Mr. Smith. The Attorney General will be allowed to answer
the question, but I would appreciate no more interruptions so
the AG can answer the question.
Attorney General Holder. The responsibility about which you
speak is, in fact, the responsibility of a Deputy Assistant
Attorney General looking at those summaries to make sure that
there is a basis to go into court and to ask that court to
grant the wiretap based on a determination that a responsible
official makes that probable cause exists to believe that a
wire facility has been used in the commission of a crime. They
do not look at the affidavits to see if, in fact--to review all
that is engaged, all that is involved in the operation.
I have read those now. I have read those. I have read
those; I have read them from Wide Receiver, as well. And I can
say that what has happened in connection with Fast and Furious
was done in the same way as wiretap applications were done
under the previous Administration in Wide Receiver. I have
looked at the summaries, and they acted in a way that is
consistent with the practice and the responsibility that they
have as defined by the statute.
Mr. Smith. Thank you, Mr. Issa.
The gentlewoman from California, Ms. Lofgren, is
recognized.
Mr. Conyers. Mr. Chairman? Before----
Mr. Smith. Does the Ranking Member wish to speak out of
order?
Mr. Conyers. If I may, please.
Mr. Smith. The gentleman is recognized.
Mr. Conyers. I think that the previous questioning was the
first note of hostility and interruption of the witness that I
think has been uncharacteristic of what we have been doing here
so far today. And I would like to ask the Chair to admonish all
the witnesses from here on out to please try to--all of the
Members from here on out to please allow the witness to finish
his answers.
Mr. Issa. Would the gentleman yield?
Mr. Conyers. Of course.
Mr. Issa. You know, I appreciate that there was hostility
between the Attorney General and myself.
Attorney General Holder. Just for the record----
Mr. Issa. I would hope that the Ranking Member would
understand----
Attorney General Holder [continuing]. There was no
hostility on my part.
Mr. Issa [continuing]. That, in fact, most of it was
produced by the fact that I have a great many questions and a
relatively little period of time in which to get answers, and
that for a year and a half my Committee, through subpoena and
interrogatories, has been attempting to get answers for which
this witness has basically said he asserts a privilege
without----
Mr. Watt. Parliamentary inquiry, Mr. Chairman.
Mr. Smith. The gentleman from Michigan has the time.
Mr. Watt. Parliamentary inquiry, if the gentleman will
yield.
Mr. Conyers. I would like to yield to the Attorney General
at this point, please.
Attorney General Holder. Well, with all due respect to
Chairman Issa, he said there is hostility between us. I don't
feel that, you know. I understand he is asking questions; I am
trying to responded as best I can. I am not feeling hostile at
all. I am pretty calm. I am okay. So, you know.
Mr. Smith. Let me assure the gentleman from Michigan that
the Attorney General will be allowed to answer future
questions.
And the gentlewoman from California, Ms. Lofgren, is
recognized for her questions.
Ms. Lofgren. Thank you, Mr. Chairman.
And, Mr. Attorney General, thank you for being here with
us.
When you were last before us in December, I asked you about
a case involving the seizure of a domain name called Dajaz1.com
for alleged copyright infringement. In December, you said you
were unfamiliar with the case but that you would certainly look
into it and get back to me. Since that hearing, not only have I
not heard from you but new details have surfaced. And,
therefore, I would like to revisit the issue.
To refresh everyone's memory, Dajaz1 is a blog. It is a
blog dedicated to discussion of hip-hop music. And in November
of 2010, the domain name of the site was seized as part of
ICE's Operation In Our Sites and on an application by
prosecutors in your department. After the government seized the
domain name, the owners filed a request for the government to
return it to them, and under the law the government had 90 days
to initiate a full forfeiture proceeding against the domain or
else return the property.
However, in this case, that deadline passed with no action.
When the Web site's lawyer inquired with the Department's
lawyers, he was told the government had filed an extension but
under seal. The Web site was given no notice, and they were
never given an opportunity to appear in court and to respond.
And I have talked to the representative of the Web site,
and he assures me that he made diligent efforts to try and
actually appear and make his case. When he asked for proof that
the extension existed, your department's lawyers basically said
that he would have to trust them.
Now, this happened two more times. Finally, in December of
last year, more than a year after the original seizure, the
government decided that it didn't, in fact, have probable cause
to support the seizure and returned the domain.
Now, we now have unsealed court records, and we know that
ICE and your department were actually waiting for the Recording
Industry Association of America, which made an initial
allegation of infringement, to provide detail, apparently
proof. And I have reviewed the affidavit--which I would ask
unanimous consent to put into the record--that in September of
2011, 10 months after the seizure, the ICE agent was still
waiting for information from RIAA to give probable cause.
Now, here is the concern I have. Blogs are entitled to
First Amendment protection. And I think it is the law that you
have to have probable cause before you seize things. You can't
seize things, have secret proceedings in the Federal court, and
then a year later come up with probable cause.
So here is my question for you. It looks to me--and, I
would say, another issue as to Web sites. I mean, this isn't
like a car that is stolen and is going to disappear, or a bag
of cocaine. It is a Web site, so the evidence can be completely
preserved even without seizures. So I think the issue of
seizure does need to be visited with us.
But I want to know what the Department's posture is if an
ICE agent is behaving recklessly in an investigation, as it
seems to be in this case. Don't the prosecutors in your
department have an obligation to reject faulty affidavits? Do
you think that the ex parte process that was included here is
proper and consistent with the First and Fifth Amendments, to
seize a domain name that has First Amendment protection for a
year without any opportunity for the owner to be heard?
Attorney General Holder. As with all domains that are
seized or were seized, I guess, in Operation In Our Sites, I
believe that the seizure that you reference was conducted
pursuant to a lawful court order, and the procedures that the
Department followed in that case, including the ex parte
procedures you mentioned, were consistent with the statutes
that authorize the seizure and forfeiture and also consistent
with due process protections that those statutes provide.
Ms. Lofgren. So you are suggesting that the representation,
which turned out to be false, under the initial affidavits--
which I again would ask to be made a part of the record--those
false affidavits were sufficient to have ex parte
communications and secret proceedings in the Federal court to
suppress this speech for over a year?
Attorney General Holder. No, I mean, clearly, if material
was submitted that was false in an underlying affidavit----
Ms. Lofgren. Or at least misleading.
Attorney General Holder [continuing]. Or misleading, that
would not be an appropriate basis for action on behalf of the
government.
The seizure and forfeiture of property is a really powerful
tool that the government has, and it has to be used
judiciously. And to the extent that there are problems along
the lines that you have described, that would be of great
concern. We should not be in court trying to do the kinds of
things that I have described here--domain name seizures--if the
underlying material is not consistent with the facts. That is
something we shouldn't be doing.
Ms. Lofgren. Well, as I say, last December you were going
to get back to me, and I know you have many things to do. But I
would appreciate, and I will ask again, if I could get a report
on this specific case. And, certainly, as my colleague, Mr.
Watt, has mentioned, there are important enforcement issues
that need to go on. I do not disagree with that. But we also
have to be very careful about the First Amendment and the Fifth
Amendment, and I hope that you do not disagree with that.
Mr. Smith. All right. Thank you, Ms. Lofgren.
And, without objection, the documents that the gentlewoman
referred to will be made a part of the record.
[The information referred to follows:]
__________
__________
Ms. Jackson Lee. Mr. Chairman, I have a parliamentary
inquiry, please.
Mr. Smith. The gentlewoman will state her parliamentary
inquiry.
Ms. Jackson Lee. I appreciate it very much, Mr. Chairman.
The gentleman from California in his statement about his
own subpoena mentioned today that he did not request wiretaps
under seal. And in Mr. Issa's contempt citation, the wiretap
applications document the extensive involvement of the Criminal
Division in the Fast and Furious----
Mr. Smith. Would the gentlewoman state her parliamentary
inquiry?
Ms. Jackson Lee. Yes, I will. My question is, did anyone
review with the Justice Department before this hearing----
Mr. Smith. That is not a parliamentary inquiry.
Ms. Jackson Lee.--whether the use of this leaked
information will harm the Department's ability to bring justice
to those who violated our laws?
Mr. Smith. Ms. Jackson Lee, that is not a parliamentary
inquiry.
Ms. Jackson Lee. It refers to the questioning of Mr. Issa
in this hearing. If not, how do we know that the use of the
information during this hearing, if asked, is consistent with--
--
Mr. Smith. Ms. Jackson Lee, we are going to have to deduct
this from your time if you continue. That is not a
parliamentary inquiry.
Ms. Jackson Lee. I believe it is, Mr. Chairman. But I hope
that we have reviewed----
Mr. Smith. The gentleman from Virginia, Mr. Forbes, is
recognized for his questions.
Mr. Forbes. Thank you, Mr. Chairman.
General, thank you for being here today.
And I think, despite all the rhetoric, we know that this
Committee is not asking you to break the law regarding what you
say or information you provide to Congress. It is just, as you
know, it doesn't matter if you appear in Congress 7 times or 70
times, if, when you are asked, you say ``I don't know'' to the
questions that are most pertinent. Or it doesn't matter if you
supply 7,000 pages or documents or 700,000 pages if they are
not the proper papers to answer key questions.
So I want to begin where you began, and that was the
standard that you said that you have in the Department, which
is that every action is guided by law and facts and nothing
else. I think I stated that correctly. Is that fair?
Attorney General Holder. Well, certainly when we are at our
best, that is what happens.
Mr. Forbes. We know that every Cabinet Secretary doesn't
adhere to that standard. In fact, we have in a paper today the
fact that several Cabinet members were required to come to a
meeting at the Democratic National Committee headquarters,
where the campaign manager, the top strategist for the
campaign, the executive director of the Democratic National
Committee, was there telling them the actions that they should
take in four items: to help the President win re-election,
regarding the campaign structure, the importance of the
Electoral College, and the importance of staying on message.
The question I want to ask you this morning is, I know that
you are familiar with David Axelrod, who is Obama's top
campaign strategist. And to the best of your knowledge, has Mr.
Axelrod or anybody on his behalf or anybody on behalf of the
campaign had any discussions with you or members of the Justice
Department regarding actions that you should or should not
take, messaging that you should or should not make, or hiring
decisions that you should or should not support?
Attorney General Holder. Absolutely not. I mean, one of the
things that I like a great deal about my interaction with
people in the White House is that--and I think they take their
lead from the President--is that they have respected what I
would call a wall that has to exist between the Justice
Department and the political operation that goes on in the
White House. I have not had any of that kind of interaction.
Mr. Forbes. So there have been some publications out, and,
of course, we never know whether these publications are
accurate or not, but at least in one book that claims that you
and Mr. Axelrod had some type of confrontation when he was
trying to get you to hire someone. And you are saying that is
not accurate at all; you have never had any kind of meetings
with him regarding any hiring decisions at the Department of
Justice.
Attorney General Holder. No, we talked about, not a hiring
decision, we talked about ways in which we might improve the
ability of the Justice Department to respond to political
attacks that were coming my way.
David Axelrod and I are good friends. He is a close friend
of mine. We have a great relationship. He is a person I respect
a great deal. We worked together on the campaign while he was
at the White House. But he has never done anything that I would
consider inappropriate.
Mr. Forbes. But, then, what you are saying is you have had
contact with Mr. Axelrod, campaign strategists, about how you
should handle different attacks coming to you as Attorney
General, correct?
Attorney General Holder. Yeah, I mean, there is a political
dimension to the job that I have as Attorney General. I mean,
the reality is that I don't sit up in an ivory tower and just
do law enforcement. I am the subject of attacks. I am a person
who was seen by some as pretty controversial. And there are
times, or at least there was that time, when I was looking for
some help in that regard.
Mr. Forbes. So you have had those discussions. Did he ever
try to encourage you to hire or put any particular person at
the Department of Justice?
Attorney General Holder. No.
Mr. Forbes. With Fast and Furious, there has been a lot of
discussions about it, and we know that is a big item not just
for us, but the Ambassador to Mexico has said that that
operation, which took place under your watch, has poisoned the
Mexican people and really put a strain on strides we have made
in two successive Administrations in the United States. He has
been concerned that the investigation hasn't been completed.
Have you ever had any consultation with the White House or
anyone with the campaign or with Mr. Axelrod about messaging
related to Fast and Furious?
Attorney General Holder. About messaging with regard to
Fast and Furious?
Mr. Forbes. Yes. Comments that were made, how you were
going to message it, any of that.
Attorney General Holder. Well, we have certainly talked
about the way in which we could deal with the interaction
between the Justice Department and Congress, about ways in
which I would, we would----
Mr. Forbes. But nothing about press messaging at all?
Attorney General Holder. Well, I mean, in terms of trying
to get a message out that was consistent with the facts and
make sure that it was done in an appropriate way, I have had
conversations like that with people in the White House
Counsel's Office.
Mr. Forbes. Okay.
Just two other quick questions. I know that you have filed
actions against Arizona, South Carolina, Utah, and Alabama--all
Republican Governors. My time is up. Would you give us a list
of any similar actions of a similar profile you have filed
against any Democratic Governors--States with Democratic
Governors.
And, also, the final thing is, if you will let us know if
you had any relationship or meetings with the White House and
members of the campaign about any of the messaging or any of
these actions that took place on that.
And, Mr. Chairman, my time has expired.
Mr. Smith. Thank you, Mr. Forbes.
Attorney General Holder. One thing in regard to the
question of the Governors, I am not sure that there has been a
photo ID attempt made by a State run by a Democratic Governor.
Mr. Forbes. No, no, I wasn't asking about photo IDs. I
think, if you look at these States, they were regarding, I
think, immigration policies. But any action that you have taken
against a Democratic Governor of a similar high profile with an
investigation----
Attorney General Holder. Well, I think with regard to the
immigration laws, as I understand it--and I can check, but I
don't think that there has been a similar immigration attempt
made by States run by Democratic Governors, which would be the
reason why we have not opposed them. But I will check, and we
will share that information with you.
Mr. Forbes. And, also, Mr. Attorney General, when you
check, if you would make sure you let us know the contacts you
had with Mr. Axelrod regarding any messaging or anything that
might come regarding those actions.
Thank you.
Mr. Smith. Okay. Thank you, Mr. Forbes.
The gentlewoman from Texas, Ms. Jackson Lee, is recognized
for questions.
Ms. Jackson Lee. I thank the Chairman, and I thank the
Ranking Member. And I certainly thank the Attorney General for
his service.
I just wanted to add what I don't think, very quickly, was
in the introduction of the Attorney General. And then my series
of questions, Mr. General, without any disrespect will be
bullet-like, not toward you but questioning, so that I can get
a series of questions in.
But I did note that you were a Deputy Attorney General
under the Bush administration. You continued to serve, I think,
through the time that you were appointed under President Obama.
Is that correct? Did you remain during that time?
Attorney General Holder. Little-known fact: I was George
Bush's first Attorney General.
Ms. Jackson Lee. I think that should be made clear for the
record, because you have had a continuous public service
commitment. You were in the private sector for a moment, but
between a judgeship and the superior court, that I understand
you were appointed by President Ronald Reagan at that time. Is
that correct, Mr. Attorney General?
Attorney General Holder. That is correct.
Ms. Jackson Lee. Let me thank you again for your service
and ask a series of questions.
I will be giving to you today, June 7th, a letter to ask
for the investigation of the State of Texas for its purging of
1.5 million voters. And I encourage and hope that there will be
a speedy review inasmuch as we are in a process of election, a
November 2012 election. And I do want to just ask the
questionon this issue of voting. And my good friend from
California wanted to establish certain rights, egress, ingress,
but the protection of access under the First Amendment.
And I want to just focus, if you wanted to petition your
government and use no government ID, most could either take
their vehicle, hitch a ride, but they would not be totally
prohibited from exercising that constitutional right. And you
made a point about fundamental right, but if you were denied
the right to vote, there is no alternative, is there not? There
is no other way--maybe you could get a bullhorn in the middle
of the street, but there is no way that you could impact the
choice of those who will govern.
Could you just be very quick on that answer, please?
Attorney General Holder. No, I think that is right. If you
want to directly impact governmental policy, who is setting
those policies, that is directly tied to the ability to vote,
to cast a ballot.
Ms. Jackson Lee. So do you believe it is a legitimate duty,
action of the Division on Civil Rights of the Department of
Justice, operating under existing current law, to assess issues
of purging or the impact of the voter ID law?
Attorney General Holder. Absolutely. We apply the law that
was passed by this Congress as early as 1965, reauthorized as
recently as 6 years ago, overwhelmingly by Congress----
Ms. Jackson Lee. Are you going outside the bounds of the
law when you, in essence, review Florida or Texas or Ohio or
Indiana, the case preceding the Indiana case? Are you outside
the boundaries, as you can assess?
Attorney General Holder. All we are doing is applying the
law that exists and has existed for over 40 years now.
Ms. Jackson Lee. With respect to the affordable care
decision which is pending, but I just want a simple question.
Do you feel that there was an adequate review--and the decision
ultimately rested with the Supreme Court, which I think has
done a decent and fair job on recusals with respect to Justice
Kagan. Could you have done anything more than what was
appropriately done by the Justice Department?
Attorney General Holder. With regard to the recusal issue?
Ms. Jackson Lee. Yes.
Attorney General Holder. I don't think that we should have
done any more. The question of recusal, I think, is something
best brought up by the litigants in the case. They had that
opportunity; I don't know if they raised it or not. But I think
the Justice Department has done all it can, certainly
responding to FOIA requests. And all information that I think
appropriately can be shared has been shared.
Ms. Jackson Lee. I appreciate it.
We are certainly saddened by the loss of life that was
resulted by the Fast and Furious. I think you have said that
often. And are you aware of the report produced by Ranking
Member Elijah Cummings?
Attorney General Holder. Yes.
Ms. Jackson Lee. And were you aware that in the--do you
believe that under this report that his staff and Ranking
Member Cummings of the Oversight Committee extensively reviewed
either the 7,600--or at least the whirl of information that was
given?
Attorney General Holder. Yes, I think they did a good job
of reviewing the information. They produced a good report that
contains a number of reforms that we have tried to implement.
Ms. Jackson Lee. Quickly, the statement says that they
found no politically motivated operation, that Fast and Furious
was not conceived and directed by high-level Obama
administration political appointees at the Department of
Justice. Would you concede that they would have the basis to
say that?
Attorney General Holder. I think if one looks at the
documents, that statement is manifestly true.
Ms. Jackson Lee. Can I ask you, as well, to investigate and
are you concerned or have you seen the impact of single-race-
based juries in a number of cases? This has been an issue in a
number of areas, particularly in the South, in cases that are
particularly sensitive.
I am going to ask you to investigate the Chad Holley case,
which is a beating incident that occurred in Houston, Texas,
and the series of trials that are coming forward. But, in
particular, one case was tried by a single-race jury and, of
course, resulted in the acquittal. Would you please take this
as an official request for the Justice Department to
investigate the beating and the resulting trial that was a
single-race jury in the case of Chad Holley?
Attorney General Holder. I mean, the Supreme Court has
recognized that the selection process--that a deliberate
attempt at creating a jury of a single race, under the Batson
case, is not appropriate.
I am familiar with the Holley case, not intimately familiar
with it, but I am familiar with the Holley case. And that is
something that we are in the process of determining what course
of action we should take.
Mr. Smith. Mr. Attorney General, a number of Members today
have made requests from you of information. When can they
expect those requests to be responded to? Within 2 weeks or so?
Attorney General Holder. We will do the best that we can,
and quickly as we can. I am a little surprised that we have not
responded at least to some of the things that have been raised
in connection with the last time that I was here----
Mr. Smith. Uh-huh.
Attorney General Holder [continuing]. But we will try to do
a better job than that.
Mr. Smith. Okay.
Ms. Jackson Lee. I thank the Chairman.
Thank you, Mr. General.
Mr. Smith. Thank you, Ms. Jackson Lee.
The gentleman from Iowa, Mr. King, is recognized.
Mr. King. Thank you, Mr. Chairman.
Thank you, Attorney General, for being here to testify
today.
Just in picking up on the Chairman's remarks, I would point
out that I had a series of questions that I asked December 8th
here. And although we haven't pressed relentlessly for those
responses, I haven't seen them. And so I am going to be
submitting a new request from December 8th and then
additionally here for this today, I believe.
But I think, first of all, there is one piece left on the
Fast and Furious I would just ask you, that--can you tell me
when you first started to doubt that the original letter was
inaccurate? Can you tell me what piece of information caused
you to do that?
Attorney General Holder. Yeah, I mean, I think my first
doubts happened just before, or just about the same time that I
asked for the inspector general to conduct a report. As I
listened to media reports and things I was getting from Senator
Grassley, I had some--that is when I think my doubts first
began about the accuracy of the February 4th letter.
Mr. King. Was there a piece of information, though, in
particular in those media reports that caused you to doubt, or
just the information itself? You thought you had to look into
it?
Attorney General Holder. I am not sure I can remember
anything specific. But I do remember that the reports were
inconsistent with what I was hearing from people within the
Department and also inconsistent with what Senator Grassley was
telling me in a letter I think that he sent to me, like, on
February 9th or something like that.
Mr. King. Okay. Yeah, I have a February 4th letter denying
ATF ever walked guns. That was from 2011. I don't have the date
of Senator Grassley's letter, but that letter was formally
withdrawn on December 2, 2011. That is consistent your
testimony, though, I recognize. And I thank you.
And then I would take us back to the Pigford issue and the
discrimination issues that we discussed the last time, General
Holder. And now--we discussed Pigford then, and I posed the
question that, in the farm bill of 2008, consistent with, I
believe, your testimony and also a statement made personally to
me by Secretary Vilsack, that the farm bill authorized the
negotiations in the agreement that ultimately lays out in the
terms of $1.25 billion to be distributed to Black farmers who
have claims of discrimination. And the authorization within the
farm bill is $100 million, and that is to cap that for all of
the settlements that are there.
And now I see that not only is it not capped at $100
million, it has been expanded to $1.25 billion, and that we
have three other cases out here since that period of time:
Garcia v. Vilsack, Keepseagle v. Vilsack, Love v. Vilsack. And
when I total them up, it is $1.33 billion in this order,
Garcia; $760 million, Keepseagle; $1.33 billion, Love--
coincidence, I suppose, $1.25 billion, Pigford; for a total of,
all together, $4.93 billion poised to--either having been
distributed or poised to be distributed under these
discrimination cases, a lot of it, $3.58 billion, coming out of
the judgment fund.
And can you tell me how much is in the judgment fund, and
is--I am going to ask you to produce a report of the funds that
come in and the funds that are distributed out of the judgment
fund. I think this Congress needs an oversight if we are
dealing with numbers that are approaching $5 billion.
Attorney General Holder. What I can say is that those
settlements that were reached, we set pools of money that can
be tapped if people can prove that, in fact, they were
discriminated against. There is certainly an unfortunate
history of discrimination that I think everybody acknowledges
exists between the Department of Agriculture in dealing with
farmers of a variety of ethnicities and genders, and the
attempts at structuring these settlements was to deal with,
redress those wrongs.
Mr. King. But $5 billion in round figures, 4.93 billion,
that is a big chunk of money to be distributed without
congressional oversight. And do you have any resistance to
Congress taking a look at that data, the contingency fees and
the distributional amounts, and the sources of that money and
the amounts?
Attorney General Holder. No, I mean, I think that is
legitimate oversight to talk about the way in which the cases
were settled, how it impacts the judgement fund.
Mr. King. Thank you. But then I will follow up with a more
specific question, but I want to also ask you about your
reaction when you saw the video of the young man who claimed
your ballot here some months ago, and your reaction toward
requirement for a photo ID after you saw that video.
Attorney General Holder. Yeah, I mean, it is an attempt to
show something, I suppose, but I think what I drew from that
video was that that guy was very careful not to say he was Eric
Holder, not to actually get a ballot. He didn't do the kinds of
things that would have subjected him to criminal prosecution.
Mr. King. And I am not worried about that, but he could
have obtained your ballot with ease. It was offered to him. And
so I just suggest this, that it may not be impossible, but I
think it has been determined here today in the questioning of
Mr. Lungren that visiting a Federal building, even your
building, is maybe not impossible, but difficult without a
picture ID. And if it is difficult or impossible to visit a
government building without a photo ID, then how can we allow
someone to help choose our government without a photo ID?
Attorney General Holder. I think the question is if you
look at, for instance, South Carolina, they had in place
measures that protected the integrity of the ballot before they
went to the photo ID. And I don't per se say that photo IDs are
necessarily bad. The question is how the structure is put in
place, how they are distributed, whether or not it has a
disproportionate impact on people of a certain race, certain
ethnicity, a certain age group.
Mr. King. Well, why would it?
Mr. Smith. The gentleman's time has expired. Thank you, Mr.
King.
The gentlewoman from California Ms. Waters.
Ms. Waters. Thank you very much.
We would like to welcome you, Mr. Attorney General. I have
a number of questions I wanted to ask you, but my attention has
been diverted to the line of questioning from Congressman
Goodlatte.
It is well known that you dismissed the charges that were
placed against Senator Stevens following your investigation
that indicated that certain exculpatory evidence had been
withheld. Now, was there just one thing or were there several
things that were done that you disagreed with that caused you
to dismiss?
Attorney General Holder. The thing that was the main
motivator for my decision to dismiss the case was I thought the
pretty solid evidence that we had uncovered, Brady material,
exculpatory material, had not been shared with the defense. And
I think that was the basis, the main motivation for my deciding
to dismiss the case.
Ms. Waters. And it seems that--I think his name is
pronounced Mr. Schuelke, S-C-H-U-E-L-K-E.
Attorney General Holder. Ed Schuelke.
Ms. Waters. Agreed with you basically, but the punishment
now does not seem to match the crime, prosecutorial misconduct.
And a lot of people are wondering how does the Office of
Professional Responsibility literally dispute the seriousness
of the withholding of the exculpatory evidence? How do you
account for that?
Attorney General Holder. I wouldn't agree that they don't
take it seriously. Mr. Schuelke, who I know and respect as a
good lawyer, came up with a report and said that he thought the
material was withheld intentionally. The OPR report, which was
about 700 pages long, says the information was withheld, but
says it was done recklessly, not intentionally. And it was on
that basis that the OPR recommendation was made as to what the
appropriate sanction was.
Mr. Schuelke never made a recommendation as to what he
thought the appropriate sanction should be, because I think, as
Judge Sullivan said, there was not an order that he could
actually point to so that he could find contempt or something
like that.
So I think that is the difference between the Schuelke
report and the OPR report, the state of mind of the person who
was engaged who did not turn over the information, or people
who didn't turn over the information.
Ms. Waters. So in your opinion, do you believe that the
recommendations for punishment by the Office of Professional
Responsibility, are those recommendations basically in line
with the unintentional withholding, or perhaps it could have
been stronger? What do you think?
Attorney General Holder. Well, I think it is appropriate
for the Attorney General not to comment on these determinations
because it is something that is not my responsibility to do. We
put that in the hands of the career people. We have a great
OPR, great Office of Professional Responsibility. We have a
structure in place so that people outside of OPR look at the
findings of OPR and then make a determination as to what the
appropriate sanctions should be, and the people who are
political in nature are really insulated from that process.
Ms. Waters. So I suppose what we can conclude is that you
dismissed; you felt that the withholding of the information was
serious enough to dismiss?
Attorney General Holder. Yes.
Ms. Waters. And I asked, I think, earlier was there leaking
of information, was there sharing of information with others
that it should not have been shared with in addition to the
withholding of information?
Attorney General Holder. No. As I remember it, the concern
that I had was with the nonproviding of information that the
defense was entitled to. That was the concern that I had.
Ms. Waters. And so clearly you addressed that concern, but,
again, after having addressed it, the Office of Professional
Responsibility had the responsibility to determine what the
punishment should be, and you have no hand in that; is that
right?
Attorney General Holder. That is correct.
Ms. Waters. Okay. Well, I just wanted to get on the record
that the withholding of the evidence was a serious matter, and
that you made a decision based on that.
Attorney General Holder. I would agree with you. Whether
you agree with Mr. Schuelke or OPR, whether it was intentional,
or reckless, negligent, it was serious and I think necessitated
the dismissal of the case, which is what I did.
Ms. Waters. Thank you very much.
I yield back the balance of my time.
Mr. Smith. Thank you, Ms. Waters.
Does the gentleman from Virginia Mr. Scott have a unanimous
consent request?
Mr. Scott. Yes, thank you, Mr. Chairman.
Mr. Chairman, I ask unanimous consent to enter into the
record letters from the National Organization for Black Law
Enforcement Executives, City of Philadelphia Police Department,
Boston Police Department, and Association of Prosecuting
Attorneys on behalf of the Attorney General; and also a copy of
the draft contempt citation--we were questioning what had been
asked for--draft contempt citation offered by the Committee on
Oversight and Government Reform, which says in part, ``The
wiretap applications document extensive involvement of the
Criminal Division in Fast and Furious, yet the Department of
Justice has failed to produce them in response to the
Committee's subpoena,'' so that we know exactly what was asked
for.
Mr. Smith. Without objection, those documents will be made
a part of the record.
[The information referred to follows:]
__________
__________
Mr. Smith. The gentleman from Arizona Mr. Franks is
recognized for questions.
Mr. Franks. Well, thank you, Mr. Chairman.
Thank you, General.
Mr. Holder, on April 27, 2011, Members of this Committee
asked you to give us information surrounding the decision by
Justice to forego prosecution of the unindicted coconspirators
in the Holy Land Foundation case. This is the largest terrorism
finance case, of course, in U.S. history. You refused to comply
with this request, and you still have not produced, or you are
still not prosecuting despite there being what many consider to
be a mountain of evidence against these Jihadist groups, at
least one of which now says it is working inside your agency to
help advise on the purge of counterterrorism training
materials.
We are told that this mountain of evidence which outlines
the Jihadist network within the United States amounts to 80
bankers' boxes full of documents. This evidence was turned over
to the court, and much of it was given to the Jihadist defense
lawyers.
Members of this Committee and other Committees would like
to review this evidence, whether it has to be on a classified
basis or not. Would you commit today to give us and provide us
with those documents which comprised the government's case in
the Holy Land Foundation trial?
Attorney General Holder. It is hard for me to answer that
question. I don't know----
Mr. Franks. No, it is not to answer, it is just will you,
or will you not.
Attorney General Holder. I don't know what the nature of
the evidence is. I don't know if it is grand jury material, I
don't know if it is wiretap information. There are a variety of
things that I would have to look at.
I can certainly take your request, and we can check to see
what the nature of the evidence is and make a determination
about whether it is appropriate for that material to be
reviewed. I just don't know.
Mr. Franks. Well, we made the request on April 27 of last
year, and so far it hasn't happened. So I would like to make
the request. And would you give us your best efforts basis
that--your good-faith effort that you would give that
information to us if you can do so?
Attorney General Holder. I will certainly make a good-faith
effort to look at the request that you have made and see
whether or not it can be complied with.
Mr. Franks. Well, I guess I would hope that you would also
give us some explanation as to why the request has been ignored
thus far.
Let me shift gears on you here. It has been reported that
multiple agencies, including the FBI, are now purging
counterterrorism training materials of information outside
groups might find offensive, including discussion of things as
fundamental as that, quote, ``al Qaeda is a group that endorses
violent ideology that should be examined,'' unquote. That is
one example.
Per the new guidelines FBI agents may no longer discuss
this in their training sessions because it offends some people,
and it has been purged. And this strikes me as the sacrificing
of vital national security, the muzzling of our national
security apparatus on the altar of political correctness. And
this concern, I think, General, seems warranted given that the
bipartisan Senate report on the Fort Hood massacre, to quote
them, ``the worst terrorist attack on U.S. soil since 9/11,''
found that, quote, ``political correctness inhibited officials
from taking actions that could have stopped the attack.''
Now, members of multiple Committees are now investigating.
Has anyone inside your agency coordinated with any other
Federal agencies such as DOD, DHS or the Department of State to
carry out this review of counterterrorism training materials?
Attorney General Holder. Well, let me say first off that
the decisions that were made by the FBI with regard to what use
would be made of certain materials is not based on political
correctness or whether or not something is offensive. The
search was for materials that were simply incorrect, that
stated--had assertions about particular things that were simply
wrong, and we didn't think that was appropriate to be included
in the training materials.
Bob Mueller has taken this very seriously. But I can tell
you, if anybody knows Bob Mueller, he is not making the
determinations on the basis of what is either offensive or
politically correct. That is not the driver in this attempt to
make sure that our training materials are accurate.
Mr. Franks. So has anyone inside your agency coordinated
this effort such as it is, whatever it might be, with DOD, or
DHS or the State Department?
Attorney General Holder. Well, I am not sure that we
necessarily have to. We obviously interact with our partners
all the time in a variety of ways. The Deputy Attorney General
issued some guiding principles to all DOJ component heads and
U.S. Attorneys to make sure that these training materials were
accurate.
We interact with our partners all the time, and it is on
that basis, among other things, that we have an ability to
decide what materials are accurate.
Mr. Franks. Well, it is one of two things. Either your
position is that no one in your agency has spoken with or met
with other agencies or the White House in carrying out this
purge of vital counterterrorism materials, or they have. And if
they have, who directed that these agencies in general to purge
these materials? And what outside groups are advising the
Department on the issue?
Attorney General Holder. This is an internal process being
done by members of the FBI, members of the Justice Department
who are steeped in this----
Mr. Franks. Can you tell us what outside groups are
advising you on this process?
Attorney General Holder. This is something that is being
run primarily out of the FBI. I mean, to the extent there are
outsiders who are involved, who we are trying to interact with,
perhaps we can try to get you those names.
Mr. Franks. I will leave it right there. I just
respectfully officially ask you to give us the list of who the
outside groups are that are working with you on the process,
because one of them is a Jihadist group that says they are
working with you on it. And I just want to make that----
Attorney General Holder. I don't believe that exactly. But
I will relay the request to the FBI.
Mr. Franks. All right. Thank you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Franks.
The gentleman from Illinois Mr. Quigley is recognized for
questions.
Mr. Quigley. Thank you so much, Mr. Chairman.
Sir, it is, as you know, very hard to minimize or diminish
the tragedy that is Fast and Furious, a horribly ill-conceived
program that led to the loss of life of an agent, endangered
others. And as you agree, there must be a continued thorough,
independent investigation. Justice must be done; corrections
must be made, and I believe have been made.
But with the greatest respect, I would say that I believe
that the effort here has become politically motivated in an
attempt to embarrass the Administration, and that diminishes
the process. The operative phrase that comes to mind since
``bad witness'' has been used is ``Pay no attention to the man
behind the curtain.''
Mr. Attorney General, welcome to Oz. Pay no attention to
the fact that this process began under a previous
Administration. Pay no attention that the agencies lack
sufficient resources. Pay no attention that the head of the ATF
hasn't been allowed to be appointed. Pay no attention that the
laws are inadequate to protect agents and citizens on both
sides of the border; even more specifically that in Arizona any
citizen may purchase an unlimited number of AK-47s and transfer
them within the State in private sales; that Special Agent
Peter Forcelli in the Phoenix Field Division testified at a
pervious hearing that as it relates to straw purchasers and
punishments, he used the expression, quote, ``Some people view
this as no more consequential than doing 65 in a 55.''
And as it relates to the gun show loophole, we recognize
the fact--and others would ask you to pay no attention--you can
buy any type of gun you want without any background check. You
could be adjudicated as dangerously mentally ill, you could be
a felon, you could be on your third order of protection, you
could be on a terrorist watch list, and you can buy what you
want.
In terms of resources, the Washington Post said in 2010 the
ATF has the same number of agents it had in 1970, while the FBI
has grown by 50 percent and DEA by 233 percent. I am glad those
agencies got the growth they need because they make us safer,
but ATF does as well.
And finally, pay no attention to the fact that Special
Agent Peter Forcelli of the ATF said, I have less than 100
agents assigned to the entire State of Arizona. That is 114,000
square miles. Do we have the resources? No, we don't. End of
quote: We desperately need them.
So, Mr. Attorney General, life is unfortunately, even after
tragedy, is about moving on. I ask you in a perfect world what
other situations and resources that you and other agencies have
to combat the threats that are still going on, the fact that
people are still dying from gun violence in the border area?
Attorney General Holder. Yeah, it is an issue that we have
to confront. Recent studies have shown that of the 94,000 guns
that were seized in Mexico, 64,000 of those guns can be traced
back to the United States.
I think there are a number of steps that Congress could
take to help us in connection with this fight. We need a
comprehensive firearms-trafficking statute. We need tougher
sentences for straw purchasers, so you don't have that 65-, 55-
mile-an-hour thought. We need to give ATF the resources that it
needs. In fiscal year 2011, Congress cut our request for 14
project gunrunner teams in half. It decreases our capacity to
do these kinds of things. And I think that Congress should not
attempt to block the long gun reporting requirement that has
recently been upheld by a Federal court that would require
somebody buying multiple AK-47s over a 5-day period to have
that information simply shared with the ATF. That is a valuable
intelligence tool and has helped us while it has been in place
in only four border States to develop leads and deal with the
situations that you have described.
Mr. Quigley. If I might switch gears briefly, I come from
Illinois, I come from Chicago. It is important to recognize the
gentleman stepping down from the attorney general's position in
Chicago has left an extraordinary legacy. I want to commend his
efforts, and I will give you the opportunity to do the same if
you will.
Attorney General Holder. I have known Pat Fitzgerald since
he was a line lawyer in the Southern District of New York and
working on really consequential and important terrorism cases.
I admired his work then. He has been an outstanding U.S.
Attorney in two Administrations. He is a true patriot. He has
been a great U.S. Attorney. He has focused on public corruption
matters as well as national security matters. He has, in fact,
been a model U.S. Attorney and somebody who is going to be
sorely missed by us in the Justice Department.
Mr. Quigley. Thank you, sir.
I yield back.
Mr. Smith. Thank you, Mr. Quigley.
The gentlelady from Texas Ms. Jackson Lee is recognized for
a unanimous consent request.
Ms. Jackson Lee. Mr. Chairman, thank you for your
courtesies.
Unanimous consent to submit into the record a report of the
minority staff of the Oversight and Government Reform dealing
with Fast and Furious. I ask unanimous consent a statement on
the draft contempt citation of the oversight committee, a
letter regarding the purging of voters, and a letter regarding
race-based juries. I ask unanimous consent to submit it into
the record.
Mr. Issa. Reserving the right to object.
Mr. Smith. The gentleman reserves the right to object and
can be heard on his objection.
Mr. Issa. I have no objections to the latter material, but
in the case of the former material, I would ask unanimous
consent that if we are going to enter one side of any document
from another Committee if you want it into the record, that
corresponding documents be allowed to be paired in so as to
give a complete report.
Mr. Smith. Without objection, the documents mentioned by
the gentlewoman----
Ms. Jackson Lee. And I have no objection.
Mr. Smith [continuing]. From Texas will be made a part of
the record, and the documents referred to by the gentleman from
California will be made a part of the record.
[The information referred to follows:]
Material submitted by the Honorable Sheila Jackson Lee
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Material submitted by the Honorable Darrell Issa