[House Hearing, 113 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 THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 8, 2014

                               __________

                           Serial No. 113-76

                               __________

         Printed for the use of the Committee on the Judiciary





[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]







      Available via the World Wide Web: http://judiciary.house.gov

                               __________

                         U.S. GOVERNMENT PRINTING OFFICE 

  87-497 PDF                     WASHINGTON : 2014
-----------------------------------------------------------------------
  For sale by the Superintendent of Documents, U.S. Government Printing 
  Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800 
         DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 
                          Washington, DC 20402-0001


















                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
SPENCER BACHUS, Alabama              SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina       DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel

















                            C O N T E N T S

                              ----------                              

                             APRIL 8, 2014

                                                                   Page

                           OPENING STATEMENTS

The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, 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, United 
  States Department of Justice, Washington, DC
  Oral Testimony.................................................     5
  Prepared Statement.............................................     8

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Committee on the Judiciary
    Letter dated January 23, 2014, to the Honorable Eric H. 
      Holder, Attorney General of the United States, U.S. 
      Department of Justice......................................    24
    Letter dated October 15, 2013, to the Honorable Eric H. 
      Holder, Attorney General of the United States, U.S. 
      Department of Justice, and the Honorable Jocelyn Samuels, 
      Acting Assistant Attorney General, Civil Rights Division, 
      U.S. Department of Justice.................................    28

                                APPENDIX
               Material Submitted for the Hearing Record

Questions for the Record submitted to the Honorable Eric H. 
  Holder, Jr., Attorney General, United States Department of 
  Justice, Washington, DC........................................    82

 
                  UNITED STATES DEPARTMENT OF JUSTICE

                              ----------                              


                         TUESDAY, APRIL 8, 2014

                        House of Representatives

                       Committee on the Judiciary

                            Washington, DC.

    The Committee met, pursuant to call, at 10:04 a.m., in room 
2141, Rayburn Office Building, the Honorable Bob Goodlatte 
(Chairman of the Committee) presiding.
    Present: Representatives Goodlatte, Sensenbrenner, Coble, 
Smith of Texas, Chabot, Bachus, Issa, Forbes, King, Franks, 
Gohmert, Jordan, Poe, Chaffetz, Marino, Gowdy, Labrador, 
Farenthold, Holding, Collins, DeSantis, Smith of Missouri, 
Conyers, Nadler, Scott, Lofgren, Jackson Lee, Cohen, Johnson, 
Pierluisi, Chu, Deutch, Richmond, DelBene, Garcia, Jeffries, 
and Cicilline.
    Staff present: (Majority) Shelley Husband, Chief of Staff & 
General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief 
Counsel; Allison Halataei, Parliamentarian & General Counsel; 
Robert Parmiter, Counsel; Caroline Lynch, Counsel; Kelsey 
Deterding, Clerk; (Minority) Perry Apelbaum, Staff Director & 
Chief Counsel; Danielle Brown, Parliamentarian; and Aaron 
Hiller, Counsel.
    Mr. Goodlatte. Good morning. The Judiciary Committee will 
come to order, and without objection the Chair is authorized to 
declare recesses of the Committee at any time.
    We welcome everyone to this morning's oversight hearing of 
the U.S. Department of Justice, and I will begin by recognizing 
myself for an opening statement. Welcome, Attorney General, to 
your seventh appearance before the House Judiciary Committee 
since your confirmation in 2009. We are happy to have you here 
with us today.
    Over the last year, we have all witnessed an extraordinary 
level of executive overreach by the Obama Administration. Time 
after time, this President has pushed the limits on executive 
power beyond their constitutional boundaries. He has repeatedly 
declared that rather than faithfully executing the laws passed 
by the legislative branch, he will ``refuse to take no for an 
answer,'' and that ``Where Congress won't act, I will.''
    Under my leadership, the House Judiciary Committee has 
worked diligently to oppose these broad assertions of executive 
power and remind the Administration and the American people 
that our Constitution gives Congress the power to make the law 
and charges the President with its faithful execution.
    Our work continues today because the Department of Justice 
has undertaken its own form of overreach in several instances. 
This is so despite the fact that legal opinions from the 
Justice Department under Presidents Carter, Reagan, George H.W. 
Bush, Clinton, and George W. Bush all agree that while the 
President does not have a duty to execute laws that he in good 
faith determines are unconstitutional, the President may not 
refuse to enforce an act of Congress for policy reasons.
    Unfortunately, the Department of Justice under Attorney 
General Holder has done just that. For example, on October 19, 
2009, Attorney General Holder announced that the Justice 
Department would stop enforcing the Federal marijuana ban 
against persons who comply with State medical marijuana laws. 
The Justice Department's decision not to enforce the Controlled 
Substances Act in States whose laws violate Federal law is not 
a valid exercise of prosecutorial discretion, but a formal 
Department-wide policy of selective non-enforcement of an act 
of Congress.
    On August 12 of this year, the Attorney General directed 
all Federal prosecutors to decline to charge the drug quantity 
necessary to trigger a mandatory minimum sentence if a 
defendant meets certain criteria. The Attorney General's 
directive, along with contradicting an act of Congress, puts 
his own frontline drug prosecutors in the unenviable position 
of either defying their boss or violating their oath of candor 
to the court.
    Additionally, this Justice Department has continued to play 
fast and loose with Federal taxpayer dollars. Every year since 
1998, the Justice Department's Inspector General has compiled a 
list of the top management and performance challenges facing 
the Department, and every year since 1999, including this year, 
the issue of grant management has been included.
    Rather than learn from its mistakes over that 15-year 
period and act to effectively administer its more than 200 
grants, the Department has made a number of concerning changes 
to some of these programs over the last year. This includes 
limiting the universe of grant applicants only to prior grant 
recipients under a number of its Violence Against Women 
programs. This type of change smacks of cronyism, and it opens 
these programs up to potential corruption and malfeasance. It 
is also in direct conflict with Congress' intent when it 
created competitive grants, not to mention the Department's 
stated commitment to promoting new and innovative programs.
    Secondly, I am concerned that this Administration has begun 
a profound change in how forensic science is studied and how 
standards are promulgated without congressional approval or 
oversight. The Justice Department has permitted the National 
Institute of Standards and Technology, or NIST, to establish 
brand new scientific area committees which will replace the 
longstanding scientific working groups in forensic science that 
have operated for years under the Department of Justice and are 
the backbone of forensic science. We have learned that these 
new NIST committees are rewriting forensic standards without 
input from established SWIG forensics experts contrary to 
congressional intent.
    Third, last summer, the Department of Justice announced 
that it would break from its tradition of having all public 
safety officers benefits program claims reviewed by the OJP 
General Counsel's Office before an official approval or denial 
was made. Instead, the Department has delegated this important 
task to a PSOB counsel, who reports to a political appointee. 
The PSOB counsel's determination regarding the legality of a 
claim can also be overridden by the political head of OJP, and 
the Department of Justice has reduced the evidence needed to 
establish a claim. These changes will allow payments to be paid 
that are not supported by the law, and they highlight the 
Department's continued recklessness regarding taxpayer dollars 
as well as the continued disregard for the limitations Congress 
places on how grant money should be spent.
    All of this demonstrates a pattern on the part of the Obama 
Administration to ignore or rewrite the very legislation that 
places limits on executive branch authority for purely 
political purposes. The Justice Department has the 
responsibility to provide legal advice, including 
constitutional analysis, to the executive branch. I find it 
ironic that the Department has chosen on multiple occasions to 
act in contravention of the Constitution and congressionally 
enacted Federal law. I would be interested in hearing what, if 
any, legal guidance the Department, including its Office of 
Legal Counsel, has provided to the Administration on these 
executive overreaches.
    Attorney General Holder, I look forward to hearing your 
answers on all of these important topics today as well as on 
other significant issues to the Justice Department and the 
country.
    And it is now my pleasure to recognize the Ranking Member 
of the full Committee, the gentleman from Michigan, Mr. 
Conyers, for his opening statement.
    Mr. Conyers. Thank you, Chairman Goodlatte. Welcome, 
Attorney General Holder. In the vast jurisdiction of the 
Department of Justice, there are many topics worthy of 
discussion today. And I hope that you will get a chance to 
accommodate Chairman Goodlatte and the numerous criticisms and 
flaws and other things that he raised in his opening statement 
because we do want an honest appraisal of this. And I am sure 
that you are up to giving us one.
    First topics worthy of discussion for me today is your 
commitment to enforcing voting rights for all Americans in the 
wake of the Shelby County decision. Voter discrimination of all 
kinds is alive and well in this country, and it ought to be our 
Committee's overwhelming priority to take up House Resolution 
3899, the Voting Rights Amendment Act without delay.
    Your work in sentencing reform is remarkable. In a country 
where nearly half of all Federal inmates are serving time for 
drug offenses, the harshest crimes should be reserved for 
violent offenders. As you stated before the Sentencing 
Commission last month, ``Our focused reliance on incarceration 
is not financially sustainable. It comes with human and moral 
costs that are impossible to calculate.''
    We should note the Department's efforts to engage State and 
local agencies, juvenile justice systems, and community leaders 
to end the school to prison pipeline and ensure that every 
young person has the opportunity to reach his full potential 
regardless of the color of his or her skin. And we should 
celebrate the Department's commitment to marriage equality as 
more and more of this country makes progress in which you have 
called one of the defining civil rights challenges of our time.
    Mr. Attorney General, your leadership on these and other 
issues has been invaluable. Of course throughout your tenure 
you have been asked to do all this and more with fewer and 
fewer resources. If you can give us any guidance as to the 
effect of the draconian Ryan budget proposal on the Department 
of Justice, we would like to engage with you on that topic as 
well.
    I would like to focus the balance of my time on the one 
overriding issue of our collective effort to roll back 
government surveillance of United States citizens. Much of our 
recent debate has focused on how to end the National Security 
Agency's bulk collection of telephone records under Section 215 
of the USA Patriot Act. Ending that program and correcting the 
deeply troubling legal argument at its foundation are of 
paramount importance. But the President's proposal and the 
proposal advanced by some on the House Intelligence Committee 
deals only with Section 215. In other words, they focus on one 
program used to access one database collected under one legal 
authority.
    To me, the problem is far more complicated than that narrow 
lens implies, and in his January 17 speech, President Obama 
committed to much more. First, the President instructed you, 
Mr. Attorney General, to institute reforms that placed 
additional restrictions on the government's ability to retain, 
search, and use in criminal cases the content of communications 
intercepted under Section 702 of the Foreign Intelligence 
Surveillance Act.
    On March 28 in a letter sent to Senator Wyden, the Director 
of National Intelligence, James Clapper, confirmed that the 
government mines this data for information about United States 
persons. Section 702 implicates content, not metadata, under 
any other circumstance. The government would require 
individualized suspicion and probable cause to seize these 
communications. The FISA amendments were never intended to 
authorize back door surveillance of United States persons, and 
the Department of Justice should work with this Committee to 
correct any impression to the contrary.
    The President asked the Attorney General to amend how we 
use national security letters so that gag orders will not be 
indefinite and will terminate within a fixed time. I view this 
modest amendment as a bare minimum change necessary to the NSA 
regime in light of what the public now knows about government 
surveillance. And yet, this Committee has received no 
indication that this reform is under way at the Department of 
Justice, and I hope, sir, that we will hear news of this 
development in your testimony or soon.
    And finally, the President recognized that there is an 
inevitable bias within the intelligence community to collect 
more information about the world, not less. That bias is 
consistent with their mission to maintain national security, 
but national security, of course, is not the only value we hold 
dear. We must also be vigilant against government overreach and 
protect our constitutional rights to privacy and free 
association.
    In the Congress, this Committee has always been the proper 
forum for a discussion about civil rights, especially in the 
national security context. In the executive branch, that role 
falls to the Department of Justice, and specifically, Mr. 
Attorney General, to you. This country would be well served by 
your continued leadership on this issue.
    In years past, the Department of Justice and the House 
Judiciary Committee have worked together to draft, pass, and 
implement the Foreign Intelligence Surveillance Act, the USA 
Patriot Act, and the FISA Amendments Act. We should renew that 
partnership without delay and move the USA Freedom Act through 
this Committee with all necessary speed.
    I thank you, and I look forward to your testimony, Attorney 
General. And I yield back.
    Mr. Goodlatte. The Chair thanks the gentleman, and without 
objection all other Members' opening statements will be made a 
part of the record.
    We thank our only witness, the Attorney General, for 
joining us today. And, Attorney General, if you would please 
rise, we will begin by swearing you in.
    [Witness sworn.]
    Mr. Goodlatte. Let the record reflect that the Attorney 
General responded in the affirmative. Thank you. And we will 
begin with our introduction.
    On February 3, 2009, General Holder was sworn in as the 
82nd Attorney General of the United States. 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, General Holder was named by President Clinton to 
be the Deputy Attorney General. Prior to becoming Attorney 
General, he was a litigation partner at Covington & Burling LLP 
here in Washington, D.C. General Holder, a native of New York 
City, is a graduate of Columbia University and Columbia Law 
School.
    Attorney General Holder, we appreciate your presence today 
and look forward to your testimony.

   TESTIMONY OF THE HONORABLE ERIC H. HOLDER, JR., ATTORNEY 
  GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Attorney General Holder. Thank you, Mr. Chairman, Ranking 
Member Conyers, and also Members of the Committee. I am here 
today to speak on behalf of my hardworking colleagues in the 
Department offices around the world about our continued 
commitment to the cause of justice and the missions that we 
share, securing our Nation and protecting the American people. 
Now, this is and always will be our top priority, and over the 
past year the Department has done important work in this 
regard, strengthening our ability to safeguard America's 
national security, to disrupt potential terrorist plots, and to 
ensure that those who attempt to harm our Nation, its vital 
interests, or its people can be held accountable to the fullest 
extent of the law.
    Last month, the Department achieved a major milestone when 
we secured the conviction of Sulaiman Abu Ghaith, the son-in-
law of Osama bin Laden and a senior member of Al-Qaeda, on 
terrorism-related charges. This verdict has proven that 
proceedings such as these can safely occur in the city I am 
proud to call my hometown as in other locations across our 
great Nation.
    Now, we never doubted the ability of our Article 3 court 
system to administer justice swiftly in this case as it has in 
hundreds of other cases involving terrorist defendants. And it 
would be a good thing for this country finally to put to rest 
this political debate that has otherwise questioned the 
experience that we have had.
    Last week, the Senate Intelligence Committee voted to 
declassify key portions of its report into past interrogations 
practices. Now, I agree that as much of the report as possible 
should be made public, of course allowing for redactions that 
are necessary to protect national security. So I was pleased 
that the Committee voted to send portions of the report forward 
for declassification. Having prohibited these practices upon 
taking office, the President believes that bringing this 
program into the light will help the American people understand 
what happened in the past and help guide us as we move forward 
so that no Administration contemplates such a program in the 
future.
    Beyond our national security work, the Department will 
continue to build on the progress we have made in confronting a 
range of threats and challenges. The full resources of the 
Department and the FBI have been made available to help conduct 
a thorough investigation into last week's horrific mass 
shooting at Fort Hood. And going forward, my colleagues and I 
will do everything possible to achieve justice for our brave 
men and women in uniform, and prevent these far too common 
tragedies from happening again.
    More than ever before, the Department's law enforcement 
work today must connect with new and emerging technology, 
including currencies such as bitcoin. Virtual currencies can 
pose challenges for law enforcement given the appeal that they 
have among those seeking to conceal illegal activity, and this 
potential must be closely considered. We are working with our 
financial regulatory partners to account for this emerging 
technology. Those who favor virtual currencies solely for their 
ability to help mask drug trafficking or other elicit conduct 
should think twice. The Department is committed to innovating 
alongside this new technology in order to ensure investigations 
are not impeded by any improvements in criminals' ability to 
move funds anonymously.
    Now, as virtual currency systems develop, it will be 
imperative to law enforcement interests that those systems 
comply with applicable anti-money laundering statutes and Know 
Your Consumer controls.
    Across the board, the Department's comprehensive efforts 
reflect our commitment to integrity and equal justice in every 
case and in every circumstance, and nowhere is this commitment 
stronger than in our work to strengthen America's Federal 
criminal justice system. Through the Smart on Crime initiative 
that I announced last August, my colleagues and I are taking 
action on a number of evidence-based reforms, including 
modifications to the Department's charging policies with regard 
to mandatory minimum sentences for certain non-violent, low 
level drug crimes.
    Now, this common sense change will ensure that the toughest 
penalties are reserved for the most dangerous or violent drug 
traffickers, and I am pleased to note that Members of this 
Committee have shown tremendous leadership in the effort to 
codify this approach into law. I have been proud to join many 
of you in supporting the bipartisan Smarter Sentencing Act 
introduced by Representatives Scott and Labrador and co-
sponsored by Ranking Member Conyers, which would give judges 
more discretion in determining appropriate sentences for people 
convicted of certain Federal drug crimes. And I pledge to keep 
working with leaders like you and like Senator Rand Paul and 
others to address the collateral consequences of certain 
convictions, including felony disenfranchisement policies that 
permanently deny formerly incarcerated people their right to 
vote.
    Now, we will never be able to arrest and incarcerate our 
way to becoming a safer Nation. That is why we need to be both 
tough and smart in our fight against crime and the conditions 
and behaviors that breed crime. And this struggle must extend 
beyond our fight to combat gun, gang, and drug-fueled violence 
to include civil rights violations, and financial, and 
healthcare fraud crimes that harm people and endanger the 
livelihoods of hardworking Americans from coast to coast.
    Last November, the Justice Department secured a major 
victory in this struggle when we obtained a $13 billion 
settlement with JPMorgan Chase & Company, the largest 
settlement with a single entity in American history, to resolve 
Federal and State civil claims related to the company's 
mortgage securitization process. As part of our ongoing efforts 
to hold accountable those whose conduct contributed to the 
mortgage crisis, the Department also filed a lawsuit against 
the ratings firm S&P. And with the $1.2 billion agreement we 
reached with Toyota last month, the largest criminal penalty 
ever imposed on an automotive company, we are making good on 
our determination to protect consumers and address fraud in all 
of its forms.
    So moving forward, my colleagues and I will continue build 
upon these and other important efforts, and we will keep 
working alongside Members of Congress, including Ranking Member 
Conyers, Representative Sensenbrenner, and Representative 
Lewis, to address the void that has been left by last year's 
Supreme Court decision invalidating one of the Voting Rights 
Act's core provisions so that we can help protect that most 
basic right of American citizenship.
    So I want to thank you once again for the chance to discuss 
these and other priorities with you today and for your 
continued support of the Justice Department's other critical 
efforts. I look forward to working closely with you to build 
upon these public safety and law enforcement accomplishments 
that my colleagues have made possible in recent years. Thank 
you very much.
    [The prepared statement of Attorney General Holder 
follows:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



                               __________

    Mr. Goodlatte. Thank you, General Holder. We will begin the 
questioning, and I will start with this. The Department of 
Justice is charged with providing legal advice to make sure the 
President and executive agencies operate within the bounds of 
the law and the Constitution. And, of course, it is not just 
the Justice Department. It involves advice regarding our 
Nation's healthcare laws, education laws, immigration laws, 
welfare laws. Doesn't the take care clause not require the 
President to enforce the law even if he does not like the law 
in question?
    Attorney General Holder. Well, the President has a 
constitutional responsibility to enforce the laws. That is 
clear. The Justice Department has an equal responsibility to 
defend statutes that Congress passes unless the determination 
is made, and it happens very infrequently, within the Justice 
Department that there is no basis to defend a statute.
    Such an event happened with regard to the Defense of 
Marriage Act and the ability that we had in a unique 
circumstance in the 2nd Circuit to make a determination that a 
heightened scrutiny standard should apply to the constitutional 
determination of that statute. And on that basis, we made the 
decision not to defend the statute. The decision was ultimately 
upheld by the Supreme Court.
    Mr. Goodlatte. I am concerned about some of the decisions 
and some of the directives that have been issued by you and 
others in the Department of Justice. Is it your view that there 
is any limit to the President's prosecutorial discretion?
    Attorney General Holder. Well, I mean, the discretion must 
always be exercised in a responsible and constitutional way. 
There is a vast amount of discretion I think that a President 
has, and, more specifically, that an attorney general has, but 
that discretion has to be used in appropriate way so that you 
are acting consistent with the aims of the statute, but at the 
same time, making sure that you are acting in a way that is 
consistent with our values, consistent with the Constitution, 
and protecting the American people.
    Mr. Goodlatte. Could the President conceivably decide that 
with regard to a particular law that the discretion is to not 
enforce that law at all, even though the law is on the books?
    Attorney General Holder. Well, I mean, ``to not enforce at 
all,'' that is a categorical statement, and in a hypothetical 
circumstance, it is a difficult question to answer. The 
determination, as I was referring to before, not to defend the 
constitutionality of the Defense of Marriage Act might fall 
into the category that you have described, but it is one, as I 
said, that was very controversial at the time. We announced it, 
but ultimately it was upheld by the Supreme Court.
    Mr. Goodlatte. Currently under the modified Section 215 
order with regard to foreign intelligence surveillance, the 
government is no longer determining whether there is reasonable 
articulable suspicion, or what is called RAS. That target 
pertains to foreign terrorism. Those determinations are now 
being made by the FISC, the Foreign Intelligence Surveillance 
Court. How is that structure being implemented under the 
modified order, and how is the FISA Court approving the queries 
of the data under the modified under?
    Attorney General Holder. Well, I think that we are doing so 
pursuant to the orders of the President, which I think are 
entirely reasonable. It does not have an impact on our ability 
to make very good use of that tool to go to the Court, present 
the case to be made using the reasonable articulable suspicion 
standard, the Court then authorizes the action that we seek. We 
now limit the action that we take to two hops as opposed to 
three hops, and I think that the way in which we are now 
proceeding is, again, consistent with the President's 
direction, but also is consistent with our obligation to keep 
the American people safe. It does not have a negative impact on 
our ability to make use of that tool.
    Mr. Goodlatte. And how is the Court, the FISA Court, 
approving those queries of the data under this modified order?
    Attorney General Holder. Well, the Court is presented with 
a request, a statement by the Department that we feel that 
reasonable articulable suspicion has been met, and make a 
determination about whether they agree or disagree, and the 
order is then signed.
    Mr. Goodlatte. Moving to another subject, and that is this 
question about the application for grants. The Office on 
Violence Against Women, which is within the Department of 
Justice's purview, recently announced changes to its grant 
solicitation process for Fiscal Year 2014, which limits the 
universe of grant applicants prior to grant recipients for a 
number of the office's discretionary and competitive grant 
programs. Specifically, it is limiting six of those programs to 
only applicants who have been prior recipients.
    This concerns me greatly, both from the standpoint of the 
appearance of favoritism and from the standpoint of not looking 
for new and innovative ways to combat violence against women. 
And I wonder if you would comment on why this policy has been 
permitted to take hold.
    Attorney General Holder. I am sorry?
    Mr. Goodlatte. I was just giving you an opportunity to 
respond to that.
    Attorney General Holder. Our grant making is really headed 
by our Office of Justice Programs, a woman whose name is Karol 
Mason, in whom I have total faith. What we have tried to do 
under her and her predecessor, Laurie Robinson, is to seek out 
from a variety of places grant proposals, support those 
proposals that we think are of potential benefit, and then 
actually do something that we do not think has necessarily been 
done before, use evidence-based means to determine the 
effectiveness of those programs, and on that basis make further 
determinations about funding.
    I am not aware of any determinations that are made to 
exclude from grant making or grant seeking institutions that on 
any basis. We take into account those grant applications that 
are made, use neutral criteria to determine whether or not they 
should be supported, but then, as I said, look after what 
happens after the grant is made to see the actions that are 
taken, again, on an evidence-based basis decide whether or not 
the program should be supported or attempted to be replicated 
in other parts of the country.
    Mr. Goodlatte. Well, the information that I have is to the 
contrary. My time has expired, so if you will, I would like to 
pursue that matter with you after this hearing, and we will get 
you some specific questions and concerns we have. But I am 
concerned that new applicants are being excluded, and that 
current applicants are being renewed not in a competitive 
environment, and that concerns me.
    Attorney General Holder. Mr. Chairman, I will say that I do 
not think that is the practice. But to the extent that your 
concern is a legitimate one, that is something that I will look 
into and I will get back to you. That is not the way I 
understand that we are proceeding. But if I am wrong, we will 
get back to you and that practice will be corrected.
    Mr. Goodlatte. Thank you. The gentleman from Michigan, Mr. 
Conyers, is recognized for his questions.
    Mr. Conyers. Thank you very much. Thank you for your 
statement, Mr. Holder. It is important that we come together in 
the Judiciary Committee and work out some of these differences 
or misunderstandings as the case may be.
    I would like to turn your attention to Section 215, the 
Foreign Intelligence Surveillance Act, FISA. And we are going 
to try to reach consensus on Section 215, and we will amend 
that statute to correct the mistaken argument that relevance 
means everything.
    Some have suggested that Section 215 could be reformed 
without requiring an individualized judicial determination of 
relevance or reasonable articulable suspicion before the 
government may demand certain business records. Consensus on 
our Committee is that prior judicial review is necessary. How 
do you stand on that?
    Attorney General Holder. Well, I think that the proposal 
that the President has made and in the interim steps that we 
have taken all are an indication of a basic fact that I think 
we have to understand. Section 215, as we know it, is proposed 
to be ended by this Administration. That is a simple fact. And 
what we would like to put in its place is a system where the 
information is stored in a different place. The information is 
acquired in a different way. The amount of information that is 
actually held by the government is substantially reduced.
    I think the debate that we have had as a Nation has been a 
good one, and I think that the President's proposal that is 
supported unanimously by his national security team is a good 
step forward. We want to work with Congress to try to perfect 
the proposal. It is, as I said, only a proposal and can 
obviously be made better. So we want to work with Congress to 
ultimately come up with a statutory change so that we can get 
to this new Section 215.
    Mr. Conyers. Thank you. But let me see if you feel that we 
have to have this relevance before the government may demand 
certain business records under 215. On this Committee, there is 
a consensus that prior judicial review is necessary. Do you 
share that view?
    Attorney General Holder. Well, by going to the FISC and 
specifying the reasonable articulable suspicion for acquiring 
the information, I think we are making a particularized 
request. It is something that is more predicate based than 
existed in the past, and I think that is a step. I think that, 
in fact, really deals with many of the concerns that have been 
expressed.
    Mr. Conyers. Thank you. On January 17, you and I were both 
present at the Department of Justice when President Obama made 
a series of commitments to reforming even more than 215, and 
asked that the Department of Justice institute reforms that 
place additional restrictions on the government's ability to 
retain, search, and use criminal cases, communications between 
Americans and foreign citizens incidentally collected under 
Section 702. Have you or anyone in DoJ considered some of these 
reforms and if they are necessary?
    Attorney General Holder. Yes. I mean, one of the things 
that I am charged with a responsibility of doing along with 
Director of National Intelligence Clapper is to look not only 
at 215, but the other tools that we have. Section 702 is one of 
them. We have begun the process that the President gave us in 
that regard. We are not finished with the work that we are 
doing. Our hope would be to come to Congress with a proposal 
and to work with Congress to make sure that 702, which is 
already subject to, extensive oversight by the FISC, the 
executive branch, Congress, but just to make sure that we have 
the necessary procedures in place so that we are ensuring that 
only non-U.S. persons outside the United States are targeted, 
to minimize the acquisition, retention, and dissemination of 
incidentally acquired information about U.S. persons.
    But this a process that we are still engaged in, and I do 
not think we are yet in a position where we can come to 
Congress with a concrete proposal. Once we are at that point, 
as we are with Section 215, we will be coming back to Congress 
with that proposal.
    Mr. Conyers. Thank you. I have three other questions. I 
will send them to you, and we will keep in communication.
    I yield back.
    Mr. Goodlatte. The Chair thanks the gentleman and 
recognizes the gentleman from Wisconsin, Mr. Sensenbrenner, for 
5 minutes.
    Mr. Sensenbrenner. Thank you very much. Mr. Attorney 
General, thank you for coming here. I would like to ask you a 
series of questions about the perjury which I believe that the 
Director of National Intelligence, James Clapper, gave to the 
Senate.
    The U.S. Attorneys Manual specifically permits exposure of 
information concerning ongoing investigations ``in matters that 
have already received substantial publicity.'' Now, Director 
Clapper's perjury, in my opinion, has been covered extensively, 
and I have articles from The New Yorker, the Washington Post, 
Guardian, Salon, the Washington Times, and the Huffington Post.
    In light of this, are you willing to discuss whether or not 
the Justice Department is investigating Director Clapper for 
his statements before the Senate?
    Attorney General Holder. I think that we received a letter 
from you, Mr. Sensenbrenner. And I think, as we explained in 
our response to your letter, I am really not in a position to 
confirm whether the Department is investigating any particular 
matter. But we are reviewing the material that you and other 
Members of the Committee have provided to us, and I can assure 
you that we will take any action that is appropriate.
    Mr. Sensenbrenner. Well, the first letter I sent you was 
several months ago, and, yes, we have received a response to 
that. I sent you another letter last week clarifying this. So 
let me refresh your memory. Senator Wyden asked Director 
Clapper whether the NSA was collecting data about millions of 
Americans. Mr. Clapper said, ``No, sir, not wittingly.''
    Now, Senator Wyden advised the Director the day before the 
hearing that he was going to ask this question. And after 
Director Clapper responded in the manner that he did, Senator 
Wyden gave him a chance to correct his testimony, which he 
refused to do. And then Mr. Clapper told the media that he gave 
the ``least untruthful answer.'' I think that we all know that 
lying to Congress is a Federal offense, and the only way 
Congress and, for that matter, the courts can be able to do 
their job is to get truthful testimony and then apply the facts 
and apply the law.
    Now, my understanding of the offense of perjury is that it 
was made under oath, which it was. It was knowingly false, 
which Director Clapper admitted, even after he was given a 
chance to change the testimony. And it is also material to a 
government investigation, which I would assume includes an 
investigation that is being made by Congress. Do you personally 
believe that Mr. Clapper's testimony fits this description?
    Attorney General Holder. Well, as I indicated, we are not 
in a position to confirm whether the Department is 
investigating any particular matter. But as I said also, we 
will take into account in making any determinations that we 
make the material that you have submitted to us.
    Mr. Sensenbrenner. Is there any circumstance that you would 
prosecute a member of the Administration for lying under oath 
to Congress?
    Attorney General Holder. Sure.
    Mr. Sensenbrenner. What would that be?
    Attorney General Holder. If the person lied and the 
determination was made that all of the other legal requirements 
of the perjury statute were met.
    Mr. Sensenbrenner. Well, Director Clapper has admitted that 
he has lied, and I outlined the elements to convict someone of 
perjury. And I will remind you it is being made under oath, it 
was knowingly false, and it is material to a government 
investigation. Now, if you want to delay this or sweep this 
under the carpet, would it not be pointless for Congress to 
pass new laws limiting data collection if the Justice 
Department is at liberty and other officials are at liberty to 
lie about enforcing them?
    Attorney General Holder. I am not sure I totally understand 
the question, but I can tell you this. We take our 
responsibility seriously to investigate allegations of perjury. 
There have been prosecutions brought by this Department over 
the years in that regard. With regard to this specific matter, 
it is something, as I said, that we are looking at the 
materials that have been presented to us, and action will be 
taken that is appropriate.
    Mr. Sensenbrenner. I seem to recall back 25 years ago 
during Iran-Contra there were prosecutions, and the only way 
Colonel North and the person who is superior ended up getting 
off is because Congress was a little too eager to provide them 
immunity. And there was immunized testimony that was used in 
the prosecution. Here there is no immunity that has been given 
at all, and I am interested in making sure that everybody knows 
that they have to tell the truth when they appear before 
Congress. And what more do you need besides an admission from 
General Clapper that he lied? ``I gave the least untruthful 
answer.'' My time is up.
    Mr. Goodlatte. The Chair thanks the gentleman, and 
recognizes the gentleman from New York, Mr. Nadler, for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Chairman. First, let me state to 
the Attorney General that I share your commitment to trying 
suspected terrorists in our Article 3 courts, and I applaud and 
congratulate you and the Department for the successful 
prosecution of Osama bin Laden's son-in-law, Sulaiman Abu 
Ghaith, I think the pronunciation is. That conviction came 13 
months after his arrest, and he now faces potential life in 
prison.
    By contrast, Khalid Sheikh Muhammad and his four co-
defendants have been in custody for more than a decade, and it 
remains uncertain when, if ever, the Military Commission System 
will finally be able to get around to a trial. I hope with the 
conviction of Abu Ghaith that we can stop wasting time and 
money on the so far unsuccessful Military Tribunal System and 
secure the convictions of the guilty terrorists in our Article 
3 courts. And I want to thank you again for restating today 
your commitment to that system.
    Now, following the failure of many savings and loan 
institutions in the late 1980's, special government task forces 
referred 1,100 cases to prosecutors resulting in more than 800 
bank officials going to jail. By stark contrast, no senior 
executive at any large financial institution at the heart of 
the 2008 financial crisis has been charged or prosecuted.
    Just last month, the DoJ Inspector General concluded that 
the FBI ranked financial crime as the lowest criminal threat in 
the aftermath of the 2008 financial crisis, did not use some of 
the additional funding that Congress provided to pursue 
mortgage fraud for this purpose, and that DoJ mistakenly 
inflated its results in mortgage fraud prosecutions by some 90 
percent. That report is very troubling.
    My question is, why did the DoJ or the FBI not devote the 
same kind of resources that were devoted to the savings and 
loan crisis in the 80's? What steps are you now taking to 
investigate whether money allocated by Congress to pursue 
mortgage fraud was misspent? And what other steps are you now 
taking in response to the IG's report? And finally, in light of 
this experience of the total failure to prosecute or even 
investigate high-ranking bank officials for the fraud that led 
to the 2008 crash, what steps are you taking to ensure that the 
full range of possible criminal charges would be investigated 
with regard to General Motors and its faulty ignition switches 
that reportedly have resulted in at least 13 deaths years after 
they knew about them?
    Attorney General Holder. Well, with regard to the OIG 
report, I just take exception to a lot of the conclusions that 
are contained therein. If you look at the report itself, the 
number of mortgage fraud convictions nearly doubled from Fiscal 
Year 2009 to 2010, from 555 to 1,087, and then increased 
further in Fiscal Year 2011 to 1,118. And this, I think, 
reflects a really rapid mobilization on the part of the 
Department to combat mortgage fraud during this critical 
period.
    If you look at, as I said, some of the results that we have 
had over the past year and a half or so, including that $13 
billion resolution with JPMorgan, that makes clear, I think, 
our determination to hold people accountable. The national 
mortgage settlement resulted in $20 billion in relief and 
assistance going to more than 600,000 families. And if you look 
at more generally our history of holding accountable 
institutions and individuals who were connected to this 
financial fraud, beginning in 2013 we have gotten guilty pleas 
from the following financial industry institutions: UBS, RBS, 
SAC Capital, Weigand. With respect to prosecutions of 
individuals, we have charged individuals from the following 
companies: JPMorgan, Goldman Sachs, Morgan Stanley, Credit 
Suites, UBS, RBL Bank, ICAP, Galleon, SAC Capital, Stanford 
Financial Group.
    So the notion that somehow or other we have not been doing 
what we should have been doing with regard to the mortgage 
fraud problem, the financial industry in general, is a nice 
talking point. And I do not mean to say that is what you are 
saying, but it used by some as a talking point. It seems to be 
inconsistent with the facts.
    Mr. Nadler. Well, thank you, but it is essentially what I 
am saying. I think going after a company which can pay a fine 
paid by the shareholders is not the same as prosecuting someone 
other than small fries, prosecuting the higher ups in these 
companies who okayed this. But let me get onto my next 
question.
    The review group appointed by the President to review the 
Section 215 bulk collection of telephone metadata concluded, 
among other things, that a single legal standard should apply 
to NSLs and Section 215 because otherwise you simply switch 
from one to the other. Do you agree, and I hope you can brief 
us on this because I have one more question. Do you agree that 
we should follow this recommendation, that we should make these 
standards for NSLs as for 215?
    Attorney General Holder. Well, I think that, you know, we 
have to understand the different nature of these. NSLs were a 
tool to obtain really narrowly defined types of records from a 
narrow set of institutions. By contrast, 215 will ask the 
government to obtain many tangible things. And because 215 has 
a much wider breadth of materials that can be obtained, the 
need for judicial supervision, I think, is more obvious.
    NSLs, you get information that is used to build cases in 
the same way that you use grand jury subpoenas that frankly do 
not involve judicial supervision.
    Mr. Nadler. So you do not agree? So you do not agree with 
the recommendation of the President's Review Commission?
    Attorney General Holder. I have stated my position, yes.
    Mr. Nadler. Okay. My last question is, the President when 
he campaigned back in 2008 said he was going to rein the use of 
the State secrets doctrine. And he has mildly done that by 
saying only higher ups in the Department can approve it, and 
they will use it more sparingly. But you still use the State 
secrets doctrine to object to a case as an answer to a 
complaint and completely stop a case from being heard. And this 
means that people cannot get their cases into court, that 
rights cannot be vindicated, that the judicial system cannot 
even consider many allegations.
    A 9th Circuit panel said that the problem with this was 
that the executive cannot be its own judge, and under this 
system, the executive is its own judge. I would observe that 
this insulates the executive from any accountability for its 
actions because it classifies some of its own actions, and then 
blocks any judicial review by incantation of the magic word 
``State secret.''
    Do you think that it is proper or wise in a democracy to 
trust the executive branch with such absolutely unreviewable 
power over our liberties in such a way that rights can be 
violated and no one can get into court to challenge those 
rights.
    Mr. Goodlatte. The time of the gentleman has expired. The 
Attorney General will be permitted to answer the question.
    Attorney General Holder. Well, we have really fundamentally 
changed the whole invocation of the State's secret privilege. I 
put in place a series of measures so that a determination can 
only be made after review by a high-level committee and 
ultimately by sign off by the Deputy Attorney General and by 
myself, understanding that we were never to use the State 
secrets privilege to hide things that were embarrassing or to 
hide government misconduct. There is a reality we have to also 
face, though, that there are certain cases that bring into or 
potentially bring into the public realm things that would harm 
the national security.
    I would also note that I am not sure what opinion you are 
referring to, but in another opinion, a 9th Circuit judge or a 
district court judge in the 9th Circuit noted very approvingly 
of the changes that we had made in the Justice Department with 
regard to how we deal with the whole question of the invocation 
of the State secrets privilege. And I am actually proud of the 
work that we have done. I think that we justify every time that 
we have used it, and it has been used extremely sparingly by 
this Administration.
    Mr. Goodlatte. The Chair recognizes the gentleman from 
North Carolina, Mr. Coble, for 5 minutes.
    Mr. Coble. Thank you, Mr. Chairman. General, good to you 
have you back on the Hill. In August of 2013, the Justice 
Department announced it would not challenge recently-passed 
State laws legalizing the production, trafficking, possession, 
and recreational use of marijuana. Subsequently, DoJ issued 
guidance to banks regarding the proceeds of illegal marijuana 
trafficking.
    In issuing the guidance, you said that ``there is a public 
safety component to this because the dispensaries have lots of 
cash.'' General, what is the only public safety issue that the 
dispensaries have an excessive amount of cash? Well, let me 
continue that. Is there also not a public safety issue 
involving the trafficking, distribution of a substance that is 
still illegal under Federal law?
    Attorney General Holder. Well, the notion that somehow we 
have retreated from our enforcement of the Controlled 
Substances Act with regard to marijuana is not accurate. What 
we have done is to clarify in a, I guess, pronouncement that 
the Deputy Attorney General set out eight factors that we take 
into consideration before we use our limited resources with 
regard to marijuana and enforcement of the marijuana laws. That 
is not inconsistent with, I think, the way in which the Justice 
Department was acting before.
    Low level possessors of marijuana were never Federal cases 
in any case. The things that we are talking about now involve 
trafficking in marijuana that goes to minors, drug driving, 
where violence is involved, where cartels are involved, so that 
we remain committed to enforcement of the marijuana laws when 
it involves those eight factors.
    Mr. Coble. In the responses to the questions for the record 
from our last hearing, which we received last week, which is 
actually 11 months after you last appeared here, you stated 
that ``Congress has determined that marijuana is a dangerous 
drug, and that the illegal distribution and sale of marijuana 
is a serious crime that provides a significant source of 
revenue to large-scale criminal enterprises, gangs, and 
cartels. It is the responsibility of the Department of Justice 
to enforce the Controlled Substances Act in all States.''
    General, given your apparent commitment to enforcing 
Federal law, why is the Department now encouraging banks to 
help dispensaries launder money? Now, this may be subject to 
interpretation, but I think even though transactions may well 
have been legal in the two States with which we are familiar, 
it can still--well, strike that. Let me say it in a different 
way. Given the Federal exposure, that could well amount to 
money laundering, could it not?
    Attorney General Holder. I am sorry. I did not hear the end 
of your statement.
    Mr. Coble. Pardon?
    Attorney General Holder. I just did not hear the end of 
your question.
    Mr. Coble. I said admittedly they could well be subject to 
interpretation, but Federal involvement in these proceeds, 
which were legally exchanged at the time of purchase. Could 
that not amount to money laundering?
    Attorney General Holder. We decided in the statement that 
we issued was to deal with what I described was, and I think 
you quoted in my letter, a public safety concern where as a 
result of the changes made in Washington and in Colorado you 
have institutions that would have large amounts of cash on 
hand. And so, we wanted to come up with ways in which that cash 
would not necessarily be in one place subject to robbery, 
whatever, violence, and would be allowed to be placed into 
banks. And that is why those rules were changed.
    Ultimately, it is for the individual banks to make 
determinations about whether or not they want to accept those 
deposits given the eight factors that we have set out in our 
overall marijuana enforcement policy.
    Mr. Coble. Well, many people, General, in response to 
Colorado and Washington seemed to make it clear these are legal 
transactions. Well, they are legal transactions at the State 
level, but they continue to be illegal activity, in my opinion, 
at the Federal level. Do you concur with that?
    Attorney General Holder. Well, again, there are a lot of 
things that are technically violative of the Federal law. We do 
not prosecute every violation of Federal law. We do not have 
the capacity to do that. And so, what we try to do is make 
determinations about how we use our limited resources. Those 
eight factors set out the things that from our perspective are 
most important about our marijuana enforcement efforts.
    I think that we will still be good stewards of the 
Controlled Substances Act. We will prevent marijuana from 
getting into the hands of minors. We will prevent violence in 
the trafficking and sale of marijuana, prevent the cartels from 
profiting. Those are the factors. Those are the things that I 
think are worthy of Federal consideration.
    Mr. Coble. Thank you, General. Chairman, I see my red light 
has illuminated. I yield back my time.
    Mr. Goodlatte. The Chair recognizes the gentlewoman from 
California, Ms. Lofgren, for 5 minutes.
    Ms. Lofgren. Thank you, Mr. Chairman, and thank you, Mr. 
Attorney General, for being here today. I want to follow up on 
some of the questions that have already been posed relative to 
surveillance. We have had a lot of conversation in the country 
about phone records, but I want to talk about Section 215 and 
214, for that matter.
    Is it your view that other data held by third parties, for 
example, financial records, or emails, or records of what an 
individual searches for on the internet, that are held by third 
parties is in the same legal posture--I am not suggesting it is 
being done--but as a legal matter is in the same posture as 
phone records?
    Attorney General Holder. Well, do you mean to compare it to 
the bulk telephony program that existed?
    Ms. Lofgren. Yes. I mean, the government's view is that it 
is constitutional to collect bulk phone records because they 
are business records. There are other records that are held by 
third parties, for example--emails, searches of the internet, 
financial records--that are, I believe, covered under 215. I am 
just trying to probe whether that is your understanding as 
well.
    Attorney General Holder. Well, under the way in which we 
are trying to reform 215, the notion is that a request has to 
be supported by reasonable, articulable suspicion.
    Ms. Lofgren. But you are not answering my question. My 
question is, are these other records in the same legal posture 
as the phone records? I mean, it is either yes or no.
    Attorney General Holder. I am not sure I am understanding 
your question. I mean, obviously they are governed by the same 
law, so----
    Ms. Lofgren. Okay. So then you have answered my question. 
Thank you. I want to talk about Section 702. Mr. Clapper sent a 
letter to Ron Wyden on March 28 indicating that there have been 
queries of U.S. persons of communications that he says were 
lawfully acquired under Section 702.
    Now, in taking a look at what the FISA Court said just a 
few years ago, in 2011 they observed that the NSA acquires more 
than 250 million internet communications each year pursuant to 
Section 702. That was in 2011. I want to probe how it could be 
that we would collect this data looking at foreign persons on a 
51 percent basis of confidence that the person is abroad, and 
then feel free to query for U.S. persons. How does that comply 
with the Fourth Amendment in your judgment?
    Attorney General Holder. Well, I certainly think that 
everything that has been done is consistent with the Fourth 
Amendment, but that really only goes part of the way. The 
President has said, you know, just because we can do certain 
things does not necessarily mean that we should do them. Now, 
we have looked at 215. We proposed modifications, as I have 
indicated. We are looking at Section 702, and I think we are 
going to have modifications that we are going to propose there 
as well.
    Ms. Lofgren. Let me ask you in terms of whether you think 
we have legal or constitutional limits in receiving information 
on American citizens in the United States that have been 
collected or obtained from our allies, for example, Britain, or 
Canada, or Australia's security forces. Is there any 
prohibition constitutionally in our receiving information from 
allied agencies?
    Attorney General Holder. I am not sure there is a 
constitutional prohibition, but we do have good relationships 
with our allies. We share information with them when that is 
appropriate.
    Ms. Lofgren. Let me ask you in terms of other public data, 
we are in a situation in this country and really in the world 
where there is a digital record made of us wherever we go. I 
mean, you walk down the street, every ATM machine has a camera. 
Every 7-Eleven has a camera. What is the Department's view in 
terms of the need for a judicial review to obtain those digital 
records and to data mine them for information about American 
citizens?
    Attorney General Holder. I think the Department has 
different standards depending on the nature of the information 
that is sought, the privacy implications that are at play or 
that are a part of the determination. We try to do things in a 
way that are consistent with our obligations obviously under 
the Fourth Amendment, but go beyond that so that we do not turn 
ourselves into a state that we do not want to ultimately be. 
And so, there are different----
    Ms. Lofgren. But the question is, does the Department feel 
that you have to get a warrant or not to obtain and data mine 
such information?
    Attorney General Holder. When you say ``data mine,'' that 
is a very broad thing. I mean, it depends really on the nature 
of that which we seek. I mean, if you go back, you know, when I 
was a young prosecutor and you wanted to get mail covers, for 
instance, you know. There are a whole variety of things that 
you can do with and without the courts, and that is still the 
case.
    Ms. Lofgren. Well, I see my time has expired, Mr. Chairman. 
I am going to follow up, if I may, with you, Mr. Attorney 
General, with some specific questions that I hope I can get 
answers to. And I thank you very much.
    Mr. Goodlatte. And we hope the Attorney General will 
respond to those questions. And the Chair now recognizes the 
gentleman from Ohio, Mr. Chabot, for 5 minutes.
    Mr. Chabot. Thank you very much, Mr. Chairman. Thank you, 
Mr. Attorney General. On July 25, 2013, 15 Members of this 
Committee wrote you to inquire whether the Department of 
Justice was consulted regarding the constitutionality of the 
Administration's decision to delay the employer mandate, and if 
so, what the Department's position was regarding its 
constitutionality. This Committee still has not received a 
satisfactory response.
    Now, you stated publicly on the record to Senator Mike Lee 
of Utah at a Senate Judiciary Committee hearing held on January 
29, 2014, about 2 months ago, that the Justice Department had 
indeed provided such a legal analysis. Now, at that same 
hearing, you speculated publicly regarding what you recalled 
was contained in that legal analysis. Since you have previously 
speculated publicly on these issues, and since you have had 
time since that meeting back on January 29, 2014, the Senate 
hearing, to refresh your memory regarding the specific nature 
of that legal analysis, could you now please describe the 
specific nature of that legal analysis on the Affordable Care 
Act?
    Attorney General Holder. Well, I would say this. Chairman 
Goodlatte sent me a letter that I had a chance to review that 
contained within it my colloquy with Senator Lee. I believe it 
was Senator Lee. It seemed to me that that was a conversation 
that was more general than the one that you have discussed. But 
in any case, the Department generally does not disclose the 
content of confidential legal advice to the President or other 
government decision makers. The Department of Treasury has 
previously explained to Congress what the legal basis was for 
the decision to delay the enforcement of the employer mandate, 
and I think that I would refer you to that document.
    Mr. Chabot. So when 15 Members of this Committee send you a 
request based on the legal analysis of something as significant 
as that, do you not think we deserve a response?
    Attorney General Holder. I apologize if there has not been 
a response to that inquiry, but I think, yes, that is certainly 
worthy of a response. Certainly it would contain what I just 
told you.
    Mr. Chabot. All right. Thank you. Let me move on then. The 
President made the unilateral decision to delay the Affordable 
Care Act's employer mandate for 1 year despite clear statutory 
language instructing that the penalties associated with the 
mandate shall apply--and this is a quote--``shall apply 2 
months beginning after December 31, 2013.'' Now, when Congress 
puts effective dates in laws, do we need to further state that 
the effect cannot be waived or modified by the executive 
branch, or is the President required to follow the law and also 
follow the dates that are set by Congress?
    Attorney General Holder. Well, the President has the duty 
obviously to follow the law.
    Mr. Chabot. Would that not include the dates that are 
contained in the law? There was not anything, I do not think, 
confusing about them or contradictory about them. It says a 
specific date. Does the President not have to follow that law?
    Attorney General Holder. Well, it would depend on the 
statute. It would depend on the statutory interpretation.
    Mr. Chabot. Okay. Well, the statute we are talking about 
was the Affordable Care Act or Obamacare, as some people refer 
to it. So that is the one we are talking about. It is not some 
hypothetical law. That is the law.
    Attorney General Holder. Yes, and as I indicated, the 
Treasury Department had looked at it and determined that there 
was a legal basis for the----
    Mr. Chabot. Well, you are his legal advisor, and I am 
asking you should he not follow the law when it says specific 
dates. And my question was, or if that is not the way the 
President going to operate, are we going to have to put in 
there what I stated, that the effective date cannot be waived 
or modified by the executive branch, meaning the President. Do 
we have to put that language in there from now on, or should 
that not be assumed that the President does not have to change 
it if we do not put that language in there?
    Attorney General Holder. Far be it from me to tell you how 
to do your jobs. I can only talk about the statutes that 
actually exist and the ones that come into either the 
Department or other branches of the executive----
    Mr. Chabot. All right. Thank you. I am almost out of town, 
so let me give you one quick one. As Attorney General, you are 
charged with faithfully executing the law. In remarks to the 
States attorneys general in February, you exhorted them to be 
suspicious of State laws that define marriage as the union of 
one man and one woman. Why when you are the top law enforcement 
official in the country would you tell your counterparts in the 
50 States not to defend laws constitutionally passed by those 
States, regardless of whether you agree with that policy or 
not?
    Attorney General Holder. Well, with all due respect, 
Congressman, I think you have gotten some really bad 
information. I did not say that people needed to be suspicious 
of particular laws.
    Mr. Chabot. Well, I am paraphrasing what you said, but I 
think----
    Attorney General Holder. Well, that is not a great 
paraphrase.
    Mr. Chabot. Okay. Well----
    Attorney General Holder. What I said----
    Mr. Chabot. We will go back and look at the language.
    Attorney General Holder. That is fine. I mean, what I was 
said that decisions to not defend statutes cannot be based on 
politics or policy. There have to be----
    Mr. Chabot. You guys would never do that----
    Mr. Goodlatte. The time of the gentleman has expired.
    Attorney General Holder. Well, I mean----
    Mr. Goodlatte. The Attorney General can finish his answer.
    Attorney General Holder. I was going to say that there have 
to be bases in law, constitutional concerns. The example I 
used, I remember, in conversations with--I cannot exactly 
remember who--in 1953, the Congress passed a law that said that 
separate but equal was appropriate. And if I had been asked----
    Mr. Chabot. There was a Fugitive Slave Law at one time----
    Mr. Goodlatte. The time of the gentleman has expired. The 
Chair recognizes the gentlewoman from Texas, Ms. Jackson Lee, 
for 5 minutes.
    Attorney General Holder. I would not have defended that one 
either.
    Ms. Jackson Lee. Let me thank the General for your presence 
and your service and just the number of vast changes that are 
for the good that we have been able to experience. A number of 
my colleagues have asked about the NSA, and I am going to 
either write a letter on that or ask the question if I get 
enough time. And I ask unanimous consent to introduce this 
letter into the record, Mr. Chairman, that I sent to Mr. Holder 
in January of 2014.
    Mr. Goodlatte. Without objection, it will be made a part of 
the record.
    [The information referred to follows:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                               __________

    Ms. Jackson Lee. If you would, General Holder, 
unfortunately Jasper, Texas has had another incident. Jasper, 
Texas, the home of the late James Byrd, Jr., who was violently 
murdered in 1998. Another young man by the name of Alfred 
Wright, a 28-year-old African-American honors graduate from the 
University of Memphis, whose body was found 19 days after first 
reported missing, and the community had allegedly been 
searching for 17 days. His body was somewhat mutilated, but 
certainly did not look like it had been in the wild, if you 
will, for 17 or 19 days. He stopped his truck. It was 
overheated. He was in front of a store, and all of a sudden he 
went missing.
    We have, as I understand it, a Justice Department 
investigation, but there has been no word whatsoever. There has 
been a lot of chatter, a lot of upsetness by the family 
members, a lot of emotion. And so, my question is, how speedily 
can we move that investigation? And I would also encourage, 
even though I understand we cannot taint an investigation, but 
I would appreciate if there would be some dialogue. I do not 
believe that dialogue with those who represent those 
individuals is a violation of the investigation. Mr. General?
    Attorney General Holder. Yes, we will certainly take into 
account the letter that you have indicated, the letter that you 
have talked about. I was just checking to make sure with my 
memory, but the U.S. Attorney is actually looking at this 
matter. I am not in a position to discuss this further at this 
time, but I have been told that the U.S. Attorney has been in 
touch with the family. But it is something that we are taking 
seriously.
    Ms. Jackson Lee. And I appreciate it. And if I could get a 
briefing through DoJ here in Washington, that is, General--I 
understand the specifics cannot be discussed--it would be very 
helpful.
    Attorney General Holder. Okay. We will share what we can 
appropriately.
    Ms. Jackson Lee. Thank you. Let me move quickly to another 
letter that I sent on October 15, 2013. I ask unanimous consent 
to introduce this into the record, Mr. Chairman. This letter 
involves a shooting in Bellaire, Texas. And unfortunately, a 
young man, a family owned a home, and he was confronted by 
police on his own steps and shot on his own steps under the 
allegation that he had stolen a car. He happened to live in a 
majority neighborhood, meaning a neighborhood that did not look 
like him.
    The unfortunate part about it is that it ended his very 
promising baseball career. The problem is that a response came 
back that there was not going to be an investigation probably 
because incidences are not reported frequently out of Bellaire, 
Texas. There was a suggestion of practice and pattern. I would 
like the Justice Department to get back with me on how that 
could be pursued because the fact that you have one incident 
means that it is a community that does not report police 
abuses, and you have a situation that has not been addressed. 
This is Mr. Toller, and this case was sent to you.
    Attorney General Holder. Okay.
    Ms. Jackson Lee. Thank you. I ask unanimous consent to put 
this in the record, Mr. Chairman.
    Mr. Goodlatte. Without objection, it will be made a part of 
the record.
    [The information referred to follows:]



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                               __________

    Ms. Jackson Lee. Another letter that I am going to pursue 
questioning on, and thank you very much. February 5, three 
Members of this Committee sent a letter to major leaders of 
civil rights organizations to comment on the clemency process 
that is now being put in place. Mr. General, could you 
emphasize how important this process is based upon the change 
in law that this Committee had on the crack cocaine, and how is 
it being implemented with the Federal Bureau of Prisons? How 
successful do you think it is? How much more work do we need to 
reach these individuals who are doing it?
    And let me ask this follow-up question so that I will not 
be left out. I am going to send you a letter regarding the 
investigation of the high speed trading and just to understand 
what the basis of the law is on that. But the other question I 
want answered besides the clemency is, there is a proposed 
merger between Comcast and Time Warner. You have been vigorous 
before on antitrust issues. I want to know how vigorous you are 
going to be in this very massive and impactful potential 
merger.
    On the clemency, please, Mr. Attorney General. Again, thank 
you for your work.
    Attorney General Holder. The clemency matter or clemency 
process that you talked about is something that is of concern 
to us. We have required in our budget the ability to hire seven 
new people for our Pardon Attorneys' Office that would include 
four attorneys so that we can process these matters at a 
greater rate. We have also begun an initiative to identify 
additional clemency candidates who are similarly situated to 
the ones that the President granted clemency to, the eight or 
so, I believe, a few months or so ago.
    There are people who do not have ties to gangs or cartels. 
They are not threats to public safety. They have sentences that 
I think that we would all generally agree are excessive in 
nature and where clemency is something that should be 
considered. The Deputy Attorney General gave a speech in New 
York where he sought the help of the private bar in addition to 
the resources that we have sought so that we could try to make 
this clemency process a better and more fulsome one.
    Mr. Goodlatte. The time of the gentlewoman has expired.
    Ms. Jackson Lee. Mr. Chairman. Mr. Chairman, could he just 
take 10 seconds on Time Warner, please? I ask unanimous 
consent.
    Mr. Goodlatte. The time of the gentlewoman has expired. The 
Attorney General may answer that question in writing.
    It is now the opportunity of the gentleman from Alabama, 
Mr. Bachus, to be recognized for 5 minutes.
    Mr. Bachus. Thank you, Attorney General. I hope you are 
feeling better.
    Attorney General Holder. I am getting there.
    Mr. Bachus. Good. Good. When you appeared here last May, I 
asked you about the Associated Press case. You were not able to 
supply any details because you said you had recused yourself 
early on. I asked you if there was the date of that or whether 
it was a formal process, and you said there was no record of 
it. And I at that time indicated to you, and I think you 
probably agreed with me, that there should be a need when you 
recuse yourself from a case to have a formal written entry. 
Have you all adopted such a policy?
    Attorney General Holder. Well, I guess I am not sure that 
we have formally done so, but in my own mind I thought that to 
the extent that I recuse myself in other matters, I would do so 
and put a writing together of some sort that would indicate 
what the basis was for that recusal.
    Mr. Bachus. I know you just indicated it was a conflict of 
interest or the appearance of a conflict of interest. But do 
you not believe that because of that and other cases that it is 
essential that there actually be a formal process where you 
submit or whether there is something in writing with a date and 
time on it?
    Attorney General Holder. Yes. I think you raised it during 
the hearing last year. And I said then, I think it is a good 
idea. My only concern was I----
    Mr. Bachus. Well, I mean, as opposed to a good idea. Why 
does the Justice Department not adopt a formal process and do 
that, you know, particularly in that you are required by law to 
sign off on any subpoena involving the media? So I just think 
particularly in a matter like that that there ought to be a 
formal recusal. I am just going to again renew my request that 
you do that, inform us if and when you do it.
    Attorney General Holder. Okay. That is fine.
    Mr. Bachus. You know, since that time, I became aware in a 
press conference about that same time you said the Associated 
Press case was one of the worst leaks you have seen throughout 
your career. Do you still believe that?
    Attorney General Holder. Yes.
    Mr. Bachus. It is my understanding from everything we have 
seen now that the information they published on Monday was 
going to be the subject of an announcement by the White House 
early Tuesday morning, and this was something that happened a 
year or two before in Yemen. I am just wondering why a day's 
delay with something that the White House was going to announce 
the next day, why would it have been so serious to secretly 
subpoena from Verizon all of the records. Am I wrong? Was the 
White House not going to reveal this information the very next 
day?
    Attorney General Holder. Well, I hope we are talking about 
the same leak. But what I was discussing was something that had 
a negative impact on our ability to--I cannot talk about this 
maybe too much--but to get----
    Mr. Bachus. Well, that case is closed, is it not, the AP 
case?
    Attorney General Holder. Yes, but we still have to talk 
about methods----
    Mr. Bachus. Well, if it is closed----
    Attorney General Holder [continuing]. That were 
potentially----
    Mr. Bachus. Well, am I wrong that the White House was going 
to disclose the information disclosed in the article the very 
next day, and they had asked the AP to delay it one more day?
    Attorney General Holder. But that is only after the fact 
the leak had existed. Had there been no leak, there would----
    Mr. Bachus. I do not think there has been any public--okay. 
All right. Well, but what I am saying is the White House was 
going to reveal that information the very next day.
    Attorney General Holder. As I remember it, the plan was not 
to reveal it on any day, but for the fact that the leak had 
already occurred.
    Mr. Bachus. All right. You know, one time I also asked you, 
and I think it was informally, whether or not there were any 
other media outlets during that period of time or since that 
time--well, let us just say during that period of time--that 
were targeted by the Justice Department other than the Rosen 
case and the AP case. And you said you were not sure. Were 
there others?
    Attorney General Holder. Do I----
    Mr. Bachus. Were there other media outlets which were 
targeted?
    Attorney General Holder. Other media----
    Mr. Bachus. We know of the Rosen case. We know of the AP 
case. Were there other examples where media outlets were 
secretly targeted?
    Attorney General Holder. Oh, I see what you mean. I would 
not agree that any media outlets were targeted. What happened 
in at least a couple of those cases was determinations were 
made to try to get information. We went through a process after 
that firestorm. I met----
    Mr. Bachus. I know about that in July, but what I am asking 
you, were any other media targeted by secret request to Verizon 
or others to look at their information other than the 
Associated Press and the Rosen case, which we know of because 
that was revealed. Are there any others?
    Attorney General Holder. As I said, the processes that we 
had in place to the extent that we thought or I made the 
determination that changes need to be made have, in fact, been 
made. We had a good series of meetings with media----
    Mr. Bachus. Well, did you have any----
    Mr. Goodlatte. The time of the gentleman has expired. The 
Chair recognizes the gentleman from Virginia, Mr. Scott, for 5 
minutes.
    Mr. Scott. Thank you, Mr. Chairman. Thank you, Mr. Attorney 
General, for being with us today. I had a question about 
torture, and just simply we have heard that torture worked in 
certain situations. Do you get retroactive immunity if it 
worked for conducting illegal torture?
    Attorney General Holder. Do you get retroactive immunity if 
you do what?
    Mr. Scott. If it worked. You got good information. What is 
the legal significance of getting good information if it 
worked?
    Attorney General Holder. I am not sure I understand the 
question.
    Mr. Scott. Well, some people say it worked; therefore, what 
otherwise would have been illegal torture was okay. Is it okay 
if it worked?
    Attorney General Holder. If somebody had engaged in 
practices--torture--that violated Federal law, the fact that it 
worked would not be a bar to potential criminal liability.
    Mr. Scott. Thank you. If you call it ``enhanced 
interrogation,'' does that make it okay?
    Attorney General Holder. No. Slapping a label on something 
does not change things.
    Mr. Scott. Thank you. I want to switch subjects to 
mandatory minimums. You mentioned legislation that is pending. 
What can the executive branch do to alleviate the egregious 
harm inflicted by an unjust mandatory minimum?
    Attorney General Holder. Well, what I have tried to do 
through our Smart on Crime initiative is to make sure that our 
people in the field, our assistant U.S. attorneys, are using 
their discretion in appropriate ways only to bring cases that 
ought to be in the Federal system, only to charge mandatory 
minimum sentences where they are appropriate given the nature 
of the conduct of the defendant who is before a particular 
assistant U.S. attorney. And I have great faith in the men and 
women of the Department to make those determinations in an 
appropriate way.
    Mr. Scott. Are you recommending that the executive branch 
use the power of pardon to deal with some of these cases, too?
    Attorney General Holder. Yes. As I replied to somebody else 
previously, we think that the clemency process--the President 
agrees with this--that the clemency process has to be a part of 
this overall look at our criminal justice system.
    Mr. Scott. Thank you. The Youth Promise Act, I think you 
are familiar with it, which requires localities to come 
together, first of all, to assess how much they are spending on 
incarceration and other things that would be prevented with a 
good, comprehensive, evidence-based, locally-tailored program, 
and as money is being saved, to reinvest the money to keep the 
programs going. Has the Department of Justice taken a position 
on the Youth Promise Act?
    Attorney General Holder. I believe we are supportive of it, 
yes? We are supportive of the Youth Promise Act.
    Mr. Scott. Thank you. And on voting rights, we are all 
disappointed by the Shelby decision, and we are trying to fix 
it. What can we do to cover jurisdictions where there is not a 
formal finding of prior finding of recent discrimination? Is 
there any way that we can cover jurisdictions without that 
finding?
    Attorney General Holder. Well, I think what we shared with 
the Members of this Committee and other Members of Congress was 
a regulatory framework in which over a set period of time, a 
number of violations could make the particular State or 
jurisdiction subject to Justice Department review if there was 
a desire to change a voting procedure. And I think that would 
respond to the Supreme Court's concern expressed in the Shelby 
case.
    Mr. Scott. Could we have someone be required to have a 
process pre-cleared if it is a suspect change if there is no 
prior finding of discrimination?
    Attorney General Holder. Well, beyond what we had proposed, 
there are other parts of the Voting Rights Act that allow the 
Department to look at individualized actions that a particular 
State or jurisdiction might take. Those are cases that are not 
easily proven.
    Mr. Scott. But in terms of pre-clearance, is there any way 
that you can stick them with pre-clearance if you do not 
connect that with prior findings of discrimination under the 
Shelby case?
    Attorney General Holder. I think it would be difficult. And 
I think what we tried to come up with was a process by which 
the gambit of the Voting Rights Act would be spread beyond 
those States that had been covered before, and would focus on a 
requisite number of violations over a set period of time that 
would move over the years so they would not become old in 
nature.
    Mr. Scott. And what can be done to improve the injunctive 
process?
    Mr. Goodlatte. The time of the gentleman has expired. The 
Attorney General can answer briefly the gentleman's question.
    Attorney General Holder. The question was----
    Mr. Scott. Maybe if you could do it for the record, if you 
could comment on how we can improve the process of injunction 
so that localities do not have to suffer irreparable harm. If 
you could respond to that for the record, I would appreciate 
it.
    Attorney General Holder. Okay.
    Mr. Goodlatte. The Chair thanks the gentleman, and the 
Attorney General----
    Attorney General Holder. Mr. Chairman, I am having a hard 
time sometimes hearing some of the questions. I am not sure if 
maybe the mikes are not on or something.
    Mr. Goodlatte. We will check that. And in the meantime the 
Chair recognizes the gentleman from California, Mr. Issa, for 5 
minutes.
    Mr. Issa. Thank you, Mr. Chairman. Mr. Attorney General, 
can you hear me okay?
    Attorney General Holder. I can always hear you. [Laughter.]
    Mr. Issa. Thank you, Mr. Attorney General. Mr. Attorney 
General, I think you would agree that the importance and 
sanctity of the Inspector General Act is one that is important 
to all of government. Would you agree?
    Attorney General Holder. The sanctity?
    Mr. Issa. The sanctity, the independence of the Inspectors 
General Act----
    Attorney General Holder. Oh, okay. Sure.
    Mr. Issa [continuing]. Is clearly an intent of Congress as 
signed into law, and you would agree with that.
    Attorney General Holder. Yes. To have a good inspector 
general, you need some degree of independence.
    Mr. Issa. And Michael Horowitz, your inspector general, you 
would agree that, in fact, he is a good inspector general?
    Attorney General Holder. Yes, he is a very good inspector 
general. I have known Mike for a good number of years.
    Mr. Issa. Well, last week Mike said at the Senate 
Appropriation Subcommittee that essentially, I will paraphrase, 
he has been interfered with. He has had to go specifically to 
you or your deputy to get permission to have access to records, 
and that has taken time, although he has ultimately gotten it. 
Can you tell me why you would require your inspector general to 
go through a process to get specific access to materials on his 
investigations and the delays that come with it?
    Attorney General Holder. Well, first, I think it is 
important to note that, as he acknowledged, that the IG has 
gotten all the documents they believe were necessary----
    Mr. Issa. He said in time in the two particular cases which 
he felt were helpful to you that you approved it, but is it not 
a form of soft intimidation by any stretch of the imagination 
to force an independent individual who is supposed to have 
unfettered access to these documents in their investigations, 
which could even include an investigation of high-ranking 
individuals working for you? To have to ask for that by 
definition requires him to disclose and to essentially beg for 
permission to have access to documents. Is that not correct?
    Attorney General Holder. Yes. This is not a policy choice 
that has been made by me or any other attorney general. There 
are legal restrictions as to what the Department can do with 
certain sensitive information that is unique to the Justice 
Department, such as wiretap information, or grand jury 
information that require the Attorney General or perhaps the 
Deputy Attorney General to grant the inspector general access 
to that information. It is a legal restriction.
    Mr. Issa. But you can grant him broad access just as you 
grant certain individuals broad access. It is not something 
where he needs to apply or needs to go through a process, is 
it?
    Attorney General Holder. I am not sure exactly what the 
process is, but I do not think it is anything that has had a 
negative impact on any investigation that he has tried to 
conduct.
    Mr. Issa. Well, it has had a negative impact. It has caused 
delays. Ultimately he was granted in the two examples where he 
went through the process, but, well, I think it speaks for 
itself that this is not the treatment that IGs normally find, 
and it is one that is inconsistent with the act.
    I would like to next go to Director B. Todd Jones' 
testimony last week before my other Committee in which, 
although he admitted that under Department of Justice 
observation that the ATF had used mentally disabled persons 
with some consistency around the country in their 
investigations, often having to train them, for example, on 
what a machine gun was, and then send them out to buy the 
machine gun after they taught them what it was, and then 
arrested them for buying it. He said that, in fact, his agents 
were not able to tell that somebody had an IQ of 50, and as a 
result it really was not something that was a target. It just 
happened.
    First of all, have you looked into this pattern by ATF of 
using mentally disabled individuals in their investigations?
    Attorney General Holder. Yes, I am familiar with that, and 
what I guess you are referring to are these storefront 
operations.
    Mr. Issa. Correct.
    Attorney General Holder. I am greatly troubled by them. The 
head of ATF has asked the inspector to look at these. There are 
no longer any storefront operations that are in existence. And 
the conduct that you talk about, from my perspective, is very 
troubling.
    Mr. Issa. I appreciate that. Would it be possible to have 
the Civil Rights Division be the one that leads looking at the 
question of the use of the mentally disabled?
    Attorney General Holder. Well, I am sure the IG will look 
at it and make determinations, and then they typically will 
make recommendations----
    Mr. Issa. And I appreciate the IG's independence in this 
matter. Lastly, the investigation into the IRS' targeting of 
conservative groups, my understanding is it is being done in 
the Civil Rights Division. Is that correct?
    Attorney General Holder. It is being what?
    Mr. Issa. It is being done under the Civil Rights Division.
    Attorney General Holder. No, it is being done by the Civil 
Rights Division, the Criminal Division, the FBI, and the 
Inspector General of the Treasury Department.
    Mr. Issa. Why would it not be appropriate to be done under 
Public Integrity, which is an organization you once were very 
involved in, that, in fact, is sort of considered to be one of 
the premiere? And why would they not have the lead?
    Attorney General Holder. Well, the Public Integrity Section 
is involved.
    Mr. Issa. And would it appropriate for them to have the 
lead since ultimately the actions of Lois Lerner and others 
clearly go to the question of public integrity?
    Attorney General Holder. I mean, it is hard to say who 
precisely has the lead. I mean, as I have been briefed on this, 
the person that----
    Mr. Issa. Well, you have never told us who is doing it, so 
it is kind of hard for us to know who has the lead, too.
    Attorney General Holder. Well, no. As I said, Criminal, 
Civil Rights, FBI, Treasury IG. As I look at the investigation 
and think of who is in the lead, I think of the Criminal 
Division as having the primary responsibility. And I talk to 
the Assistant Attorney General of the Criminal Division, but 
the people who are doing the work on the ground for the 
Criminal Division are the people from the Public Integrity 
Section.
    Mr. Issa. And do you have access to 6103 information in 
order to further your investigation?
    Attorney General Holder. Tax information?
    Mr. Issa. As necessary. Have you been granted as necessary 
to tax information that would allow you to know the individuals 
that were targeted and so on?
    Attorney General Holder. Well, I am not sure I have had 
that degree of granularity, but I have access to tax 
information pursuant to the investigations that we conduct.
    Mr. Goodlatte. The time of the gentleman has expired.
    Mr. Issa. Thank you.
    Mr. Goodlatte. The Chair recognizes the gentleman from 
Tennessee, Mr. Cohen, for 5 minutes.
    Mr. Cohen. Thank you, sir, and, General Holder, I have 
great regard for you, but I have got some questions. We will do 
a lightening round if you do not mind because I have got a lot 
of issues, as you well now.
    First of all, is all politics is local. Shelby County, 
Tennessee, Memphis, has an election coming up. Early voting 
starts April 16, a primary election and then a general election 
in August. We have had a whole list of problems with the 
Election Commission. We have written you over the last couple 
of weeks, Pastor Kenneth Whalum in Memphis and myself. And we 
will have a letter, which my staff member will give to one of 
your staff members.
    We would just like to have your assurance that you will 
look into having monitors because there have been elections 
thrown out because they let people vote that should not have 
been allowed to vote in certain elections. And people have been 
refused the right to vote and all kinds of problems. Can you 
assure us that you will looking into having monitors in Shelby 
County to see that the elections are done fairly?
    Attorney General Holder. We will look at that. In fact, I 
think we received a letter from you last week regarding an 
upcoming election in Shelby County, and we are reviewing that 
information. But we will look at anything else that you provide 
to us.
    Mr. Cohen. Thank you. Well, Pastor Whalum had called up, 
and he has been speaking to an individual in your office, and 
he had not gotten the letter. And it has been 2 weeks, and 
going through the legislative liaison sometimes take time. But 
thank you.
    Going to policy, as you well know, I am very concerned 
about our drug policy in our country and the way it affects 
minorities and the way it takes away people's liberties by 
incarcerating them. I appreciate what you have done, and some 
of the statements you have made have been most forward moving, 
and I have appreciated them. But you recently talked about 
changing marijuana from Schedule 1 and said you would work with 
Congress, and Congress should take the lead.
    Let me suggest to you that it is my understanding under 
Title 21 that you have the authority to initiate a request to 
the Secretary of Health and Human Services to do a study to 
look into marijuana and Schedule 1, and that you could then 
change it. In my humble opinion, and I think the majority of 
the people in this country, there is no way that marijuana 
should be Schedule 1 because it is not in the same class as 
heroin and LSD as it in the Code, which breeds contempt for our 
laws.
    And there is certainly a medical basis. Dr. Sanjay Gupta 
has shown this in his broadcasting that people have voted in in 
20 States for multiple sclerosis, for children with epilepsy 
and seizures, so it has medical benefit. And to be Schedule 1 
it says it has no medical benefit. Well, that is just 
fallacious. And the fact that it says that there is a high 
susceptibility or likelihood of abuse, it is nothing like 
heroin. That is absurd.
    So I would like to ask you, why will you not act, as the 
President suggested, and I predict Congress will not act in 
this area because Congress is generally like tortoises. Until 
it is really clear, they are not going to put their head out 
there. But the Administration has acted on the Immigration Act 
and the Environment Policy Act, and wages, and minimum wages, 
et cetera. Why will the Administration not act with the pen and 
the phone to help people out with taking this out of Schedule 1 
so it can be studied because we are all in favor of research?
    Attorney General Holder. Well, I think that we actually 
have acted in a responsible way in how we have made the 
determination, how we are going to use our limited resources. 
The policies that I have announced as part of the Smart on 
Crime initiative, the directions that I have given to people in 
the field I think reflect a sensitivity to, again, the resource 
restraints that we have, the division between Federal and local 
law enforcement responsibilities. And I think that we have 
acted appropriately.
    Mr. Cohen. And those areas you certainly have, but on 
Schedule 1 all you have to do is to ask the Secretary to make a 
scientific and medical evaluation, and after that then you can 
go further and make a determination on whether it should be 
Schedule 1. Schedule 1 says you cannot do any research on it. 
Why will you not ask the Secretary under Title 21, Chapter 13, 
to initiate that program to get marijuana out of Schedule 1? It 
is obviously not Schedule 1.
    Attorney General Holder. Well, what is obvious to one is 
perhaps not to another. I think, as I said, that given the 
responsibilities that I have----
    Mr. Cohen. Well, let me ask you this. The Secretary would 
make that study to determine it. Why not initiate the 
opportunity for the Secretary to make the study and base it on 
science? And until you do that, it is not going to happen.
    Attorney General Holder. Well, as I said, within the world 
in which I have primary responsibility, I think we have acted 
in a way that is appropriate.
    Mr. Cohen. In those areas you have. ``The Attorney General 
shall before initiating proceedings under Subsection A to 
remove a drug or other substance entirely, shall request from 
the Secretary a scientific and medical evaluation.'' That is 
all you have to do is request it. That does not take away from 
your limited resources.
    Attorney General Holder. Well, as I said, I am satisfied 
with what we have done.
    Mr. Cohen. Commutations. You know I am interested in those 
issues as well. Have you looked at having a group of 
commutations to people who were convicted under crack, under 
the old determination of 100 to one instead of the 18 to one 
because of the fairness in sentencing law, and having all of 
those people in a group commutation be put forward?
    Mr. Goodlatte. The time of the gentleman has expired.
    Mr. Cohen. Can he answer the question?
    Mr. Goodlatte. The Attorney General will be permitted to 
answer the question.
    Attorney General Holder. Well, I do not think that we would 
be looking for group commutation. We would be looking for 
individuals who would be deserving of clemency or commutations 
given the nature of their conduct, their lack of ties to 
violence or to drug dealing gangs or cartels. We have begun an 
initiative to identify additional clemency recipients. This is 
something that I know is important to the President, and we are 
trying to come up with ways in which we can make individualized 
determinations about who should receive clemency.
    Mr. Cohen. Thank you.
    Mr. Goodlatte. The Chair recognizes the gentleman from 
Virginia, Mr. Forbes, for 5 minutes.
    Mr. Forbes. Thank you, Mr. Chairman. And, Mr. Attorney 
General, thank you for taking time to be with us today. I think 
it comes as no surprise that a great many members of this body, 
I think, a great many individuals across the country believe 
and are very concerned about the overreach they perceive coming 
from your office, the IRS, and the White House. And we had 
perhaps a suggestion today that the House Budget may in some 
way curtail that. If, in fact, that is the case, then many of 
us who were going to vote for that budget will now not just 
vote for it, but embrace it wholeheartedly because we get so 
frustrated in not being able to get answers and to control some 
of that overreach.
    One of the areas is what you have been just talking about, 
the clemency situation and pardons. And I know your Deputy 
Attorney General, Mr. Cole, on January 30th actually solicited 
petitions for pardon and for clemency in the speech that he 
gave to the New York State Bar Association. And he referenced 
the fact of overcrowding in our prisons. He also then mentioned 
that some of these individuals are truly dangerous people who 
threaten the safety of our communities and need to be taken off 
the streets for a long time.
    But I guess my first question is, can you give me any 
precedent of previous Attorneys General's Offices who have 
solicited petitions for pardons or clemency limited to a 
particular category of crime? In other words, he did not 
mention individuals who might have been convicted of white-
collar crime, or campaign finance laws, or a host of other 
areas that have been overcriminalized, who also do the 
overcrowding that we are very concerned with, but have a much 
lower recidivism rate.
    Attorney General Holder. Well, we have a Pardon Attorney's 
Office that deals with a whole range of Federal crimes for 
which people have been convicted and then seek relief.
    Mr. Forbes. I understand that, but the concern for us is he 
actively was soliciting. He was actually asking the Bar 
Association to bring forward those petitions, but he only 
talked about drug offenses. He did not mention any of those 
others. And my question is, is there any precedent that you 
know of that any other Administration has ever solicited 
petitions for clemency or pardon limited to one particular 
category of crime?
    Attorney General Holder. I think what the Deputy Attorney 
General was responding to, and which I support--I am not 
putting it on him; I support this--is that we are dealing with 
a particular problem, and that is I think the pendulum swung a 
little too far in the 80's. I mean, I was the U.S. attorney 
here in Washington, D.C. when this was the murder capital of 
the country. And we went, I think, a little too far with regard 
to some of the sentences----
    Mr. Forbes. Can I ask you about that then, if I can, 
because one of the things he goes on to list is this. He says, 
``We're looking for petitions for individuals who had,'' and 
these are his quotes, ``nonviolent, low-level drug offenders 
who were not leaders or had significant ties to gangs or 
cartels, without an extensive criminal history, who face life 
or near life sentences.''
    And my question to you is, give me an example of someone 
who would fall in that category, because as I am sure you know, 
under 183553(f), that category would not have been subjected to 
mandatory minimums anyway. And that was put into law in 1984, 
and prior to that time anybody convicted would be subject to 
parole. So give me an example of someone who would have been a 
nonviolent, low-level drug offender, not a leader or involved 
in organized gangs or cartels, no extensive criminal history 
who would have been facing a life or near life sentence.
    Attorney General Holder. A drug mule who would bring drugs 
from New York and got stopped at the bus terminal here in 
Washington, D.C. with a whole bunch of drugs in a bag could get 
charged not only with the possession of those drugs, which 
would have resulted in a huge sentence, but could have been 
charged with as being part of a conspiracy with all of the 
drugs that were involved with that conspiracy. And although 
that person did not engage in a violent crime and was nothing 
more than a drug mule, could have gotten a life sentence.
    Mr. Forbes. Well, he could have, but he would not have had 
a mandatory life sentence, would he? And my final thing, Mr. 
Attorney----
    Attorney General Holder. Well, all right, if you get 60 or 
70 years, that is not technically a life sentence----
    Mr. Forbes. Well, Mr. Attorney General, my time is about to 
expire.
    Attorney General Holder. That, in effect, is a life 
sentence.
    Mr. Forbes. But here is my question.
    Attorney General Holder. Which is why it is a life sentence 
or near life sentence.
    Mr. Forbes. Is it not true the prosecutor, the jury, and 
the judge who were actually handling that case would have had a 
much better opportunity to determine that sentence than 
somebody in your office 5 years down the road?
    Attorney General Holder. Well, except that the jury and the 
judge's hands were tied at that time by the sentencing 
guidelines or by mandatory minimums that were tied to the 
amounts that were involved as opposed to the conduct that a 
particular person engaged in. And that is the wrong that we are 
trying to redress.
    Mr. Forbes. Well, I think if you look again and give me 
some examples--I know my time is about to expire--that would 
not have complied under 183553(f), which would have gotten them 
out of those mandatory sentences. And with that, Mr. Chairman, 
I yield back.
    Mr. Bachus [presiding]. I thank the gentleman from 
Virginia. At this time we recognize Mr. Johnson, the gentleman 
from Georgia.
    Mr. Johnson. Thank you, Mr. Chairman. General Holder, good 
to see you today, sir. The U.S. has the highest incarceration 
rate in the world, and $27.4 billion is your budget request for 
the Department of Justice for 2015. And $8.4 billion of that 
$27.4 billion is for Federal prisons and detention facilities, 
is it not?
    Attorney General Holder. I believe that is correct. I do 
not know.
    Mr. Johnson. So about a third of your budget is to 
incarcerate people at the highest rate in the world, not just 
the civilized world, but in the world. That is disturbing. And 
of the people who are incarcerated, about 40 percent of them 
are African-Americans, is that a fact? Would you disagree with 
that?
    Attorney General Holder. I think that number is about 
right. I do not have the precise number.
    Mr. Johnson. And about 20 percent are Hispanics.
    Attorney General Holder. I believe that that is also 
correct.
    Mr. Johnson. Yes. But now, has that line item in the 
budget, that $8.4 billion for Federal prisons, has it been 
increasing or decreasing?
    Attorney General Holder. It has been increasing. You are 
correct that about a third of our budget now goes to our Bureau 
of Prisons, and given the state of our system, that is 
deservedly so. We have to support the people who work in those 
facilities. But as we spend more money as it has increased over 
the years, it means that we have less money to hire agents, 
prosecutors, or to provide grant money to our State and local 
partners. There is a finite amount of money that we have, and 
the more and more that goes to our Federal Bureau of Prisons, 
the less we have to do all the other things that people want 
the Justice Department to do.
    Mr. Johnson. And as it goes to the Federal Bureau of 
Prisons, what percentage of those funds go to private for-
profit detention facilities?
    Attorney General Holder. I do not know the number of that, 
but we can get you a percentage.
    Mr. Johnson. Approximately, would it be about a third or a 
fourth, half?
    Attorney General Holder. I simply do not know. I will have 
to get you that information. I do not know.
    Mr. Johnson. I think that is pretty important. Do the 
private for-profit facilities house Federal detainees and 
inmates at a higher cost than the Federal Government can do it 
or at a lower cost in general?
    Attorney General Holder. Again, I am not just familiar with 
what our relationship is in terms of numbers or the funding 
stream that goes to any private facilities that we might use. I 
just do not know the answer to that.
    Mr. Johnson. Well, let me ask you this. Your agency is 
responsible for investigating and prosecuting not just blue 
collar criminals, but white-collar criminals as well. But with 
the white-collar criminals, corporate theft, let us take, for 
instance, those corporations that have a much greater ability 
to fight back because they have resources. Has the fact that 
your Agency's budget been trimmed over the past 3, 4, 5 years, 
this trimming of your budget or cutting of it actually, has it 
affected your ability to go after these corporate criminals?
    Attorney General Holder. I would say to date, no. But I 
will tell you that if sequestration were to reappear in 2015, 
'16, whenever it might show up again, the capacity of the 
Justice Department to do that which the American people expects 
us to do from a range of things, from national security, to 
white-collar enforcement, to violent crime enforcement would be 
negative impacted. We have to at all cost--at all cost--avoid 
the mistake that was sequestration.
    Mr. Bachus. I thank the gentleman from Georgia. And at this 
time we will hear from the gentleman from Iowa, Mr. King, for 5 
minutes.
    Mr. King. Thank you, Mr. Chairman. Attorney General, thanks 
for your testimony. I appreciate you coming here. I recall a 
previous exchange in a previous hearing between us, and I 
believe I asked the question to the effect of your priorities, 
are they directed by the President into your office or are you 
an independent department. And I believe your response was 
generally I am independent. I do not take direct direction from 
the President, and it is your job to provide equal justice 
under the law. That would be generally the response that I 
recall. And I note you are nodding your head in relative 
agreement.
    Attorney General Holder. I have been here too long. You 
guys can quote too many things that I have said previously, 
but, yes. [Laughter.]
    I think that is right. That is right.
    Mr. King. Well, and I want to make sure I represent it 
accurately. I think that is an appropriate response.
    Attorney General Holder. That is fine. That is fine.
    Mr. King. And so, I would like to just go through a list of 
some of the things that pop into my head that I am thinking 
about here. One of them is relatively new. It has been back in 
the news fairly recently, and that is the Senator Ted Stevens 
issue. And I understand that that prosecution took place before 
you took office, but it has been reported as recently as March 
that an FBI agent was severely disciplined, and that discipline 
was imposed for improper actions in the investigation and 
prosecution of Senator Ted Stevens.
    Now, I think it is clear that it is very likely he lost his 
Senate seat over that investigation, over that conviction, and 
then subsequently was killed in a plane crash. That is one 
piece about the discipline within the FBI that I would like to 
hear about.
    Second is, the overreach by allegedly Carmen Ortiz in the 
case of Aaron Swartz, who committed suicide. The third one 
would be we have seen as the knockout game has been reported at 
least in the news to be primarily Black on White crime. I do 
not know of any prosecutions there except for the Federal 
investigation and the prosecution of Conrad Barrett, who was 
the anomaly as far as I am reading the news, as a White on 
Black crime of the knockout game.
    Next, Dinesh D'Souza allegedly transferred $20,000 that 
showed up in a U.S. Senate campaign targeted for this 
investigation. I would presume there are thousands in America 
who are likely engaged in similar acts are unprosecuted. 
Governor Bob McDonnell for the charges brought against him. Now 
five former U.S. attorneys general have come out in Virginia 
and said they think this is overreach and outside the 
definition of the law. And then I am thinking about Governor 
Chris Christie, who, when the situation known as Bridgegate 
came up, within a week there were Federal investigators 
investigating the Hurricane Sandy issue.
    Now, those are just things that I put down here while I am 
sitting here listening to the testimony. Here is the other 
side. Black Panthers' prosecution is cancelled about the time 
you took office. Tom Perez, the Assistant General Attorney at 
the time, now Secretary of Labor, sat just nearly where you are 
and said he had provided the lowest penalty allowable under 
law. We know that was not true. It was the smallest de minimus 
penalty provided under law.
    You have heard Jim Sensenbrenner bring up the James Clapper 
issue in his testimony, the conflicting testimony under oath. I 
am thinking of another governor, Governor John Corzine, a 
billion dollars missing in Global Crossing. I do not know of a 
prosecution there that is taking place. Lois Lerner, I think 
she would be a candidate.
    Then I am thinking of entire classes of people that have 
been exempted by this Administration down to the point of I 
understand this is immigration enforcement. However, 99.92 
percent of those who have been removed are not removed because 
they are unlawfully present. Only .08 percent are for that 
narrow little reason because classes of people have been 
created by this Administration exempted from the law, at least 
in fact.
    And then marijuana companies exempted from enforcement of 
the law as well as essentially a suspension of the Federal 
enforcement of marijuana laws. We have talked about DOMA. I 
take us to voter fraud and the Texas issue where Texas says I 
want a voter ID. They get labeled as a poll tax and a racist 
plot.
    My question really is, have you prosecuted anyone in this 
Administration? Have you impaneled a grand jury, have you 
investigated anyone in this Administration, because it looks to 
me that those folks that are on the other side of the aisle are 
getting extra scrutiny, and those on your side on your aisle 
are getting no scrutiny.
    Attorney General Holder. First, I am not going to comment 
on any cases that are pending. I will simply say that we have 
followed the facts and the law in making our prosecutive 
determinations and making our investigatory decisions. This is 
an Administration, this is a Justice Department that I have 
run, and I am proud of. The men and women who are the career 
employees in the Department for lesser periods of time make 
their decisions based only on the facts in the law and conduct 
themselves in the way that is in the best traditions of this 
Department.
    And I will put my record up against any other attorney 
general, any other Justice Department. And any hint that we 
have engaged in anything that is partisan or inappropriate in 
nature, I totally 1,000 percent reject.
    Mr. King. But you have not really responded to the question 
of whether you have investigated or----
    Mr. Bachus. I thank the gentleman.
    Mr. King [continuing]. Or indicted a member of the 
Administration.
    Mr. Bachus. Mr. King----
    Mr. King. That would be an unresponsive response I would 
assert.
    Mr. Bachus. Time has expired. Thank you. At this time, I 
would recognize the at large Member from Puerto Rico, Mr. 
Pierluisi, for 5 minutes.
    Mr. Pierluisi. Thank you, Mr. Chairman. It is good to see 
you again, General. I have two questions. I would like to ask 
them both, and then give you an opportunity to respond.
    The first issue is DoJ's response to drug-related violence 
in Puerto Rico. The Consolidated Appropriations Act approved in 
January requires ONDCP to coordinate the preparation and 
publication of a Caribbean border counter narcotics strategy 
with a focus on Puerto Rico and the USVI. The strategy will 
outline the steps that the Federal Government is taking and 
recommend additional steps it should take to reduce the supply 
of drugs entering Puerto Rico and the USVI, and to lower 
violence associated with the drug trade in the two territories.
    Now, a strategy is essential, but it is not enough. The 
strategy must be implemented with the right resources and 
personnel. I have made no secret of the fact that I think DoJ's 
response to the crisis in Puerto Rico has not been sufficiently 
robust. Unlike DHS, DoJ has been reluctant to surge personnel 
to Puerto Rico. At the same time, DoJ does deserve credit for 
executing an MOU with the Puerto Rico Department of Justice so 
that certain crimes that would otherwise be tried in State 
court are tried in Federal court instead, often using State 
prosecutors deputized by DoJ for that purpose.
    So my first question is, are you satisfied DoJ has the 
appropriate level of personnel from the DEA, FBI, ATF, and the 
U.S. Attorney's Office in Puerto Rico to combat trafficking and 
violent crime in light of the severity of the problem there?
    The second issue I am raising involves again the 
Consolidated Appropriations Act because it includes a provision 
which I fought long and hard to secure that provides funding to 
the Puerto Rico Elections Commission to conduct the first 
federally sponsored plebiscite in Puerto Rico's history. This 
language is a response to a 2012 plebiscite in which a majority 
of voters said they do not want Puerto Rico to remain a 
territory, and more voters expressed a desire for statehood 
than any other option.
    As you confirmed to Mr. Serrano at a hearing last week, the 
law requires DoJ to ensure that voter education materials and 
the ballot prepared by the Elections Commission in Puerto Rico 
are compatible with U.S. law and policy. The law also states 
that the purpose of the plebiscite is to resolve Puerto Rico's 
status once and for all.
    I have introduced legislation that proposes to structure 
the federally sponsored plebiscite as a straightforward vote on 
the admission of Puerto Rico as a state as was done in Alaska 
and Hawaii. This structure is eminently fair. Those who support 
statehood can vote yes and those who oppose it for any reason 
can vote no. My bill has 130 co-sponsors and a Senate companion 
bill has been introduced. As I see it, structuring the 
plebiscite as a vote on Puerto Rico's admission as a state is 
consistent with U.S. law because statehood is a 
constitutionally valid status that would resolve Puerto Rico's 
political future. Do you agree?
    Attorney General Holder. Well, with regard to the question 
of resources, I think that, you know, given the flows that we 
see of drugs through the Caribbean, through the Virgin Islands, 
through Puerto Rico, the levels of violence that we see in 
Puerto Rico, there is clearly a need for additional resources. 
We are a resource strained institution, we simply are. And we 
have tried to the best we could.
    I was in Puerto Rico in July of 2013 and announced a 
consent decree with the police department there. I met with the 
governor to try to talk about ways in which we might be of 
greater assistance, and we are trying to do what we can. But 
unfortunately, we have to be creative. I wish I had more 
resources, and if we did those would be places where I think we 
could make great use of those additional resources.
    When it comes to the voting initiative, as I indicated, I 
guess, to Congressman Serrano, the role of the Department is 
really limited to reviewing, I guess, those documents and 
determining whether the documents put out by the State Election 
Commission of Puerto Rico are compatible with the Constitution, 
the laws, and policies of the United States. There is a $2.5, I 
guess, million carve-out Byrne JAG grant for this objective, 
but we are not really engaged in the, I would say, the guts of 
the effort as much as just to oversee to make sure that the 
materials are appropriate that are handed out.
    Mr. Pierluisi. Can I quickly say, but would you not agree 
that if the vote involves an up or down vote on statehood, that 
you would have to say that that is consistent with U.S. law? 
There is nothing wrong with that in terms of U.S. law and 
policy?
    Mr. Bachus. I will give the Attorney General----
    Attorney General Holder. If that were an issue that were 
presented to us, I mean, that is one that obviously we would 
seek to answer. But the task that we have been given is really 
to just make sure that these materials are consistent with our 
constitutional laws and policies. That is the only involvement, 
I think, that we have, at least at this point.
    Mr. Pierluisi. And would that----
    Mr. Bachus. I thank the gentleman from Puerto Rico. And at 
this time I will recognize the gentleman from Arizona, Mr. 
Franks, for 5 minutes.
    Mr. Franks. Well, thank you, Mr. Chairman. And, General 
Holder, thank you for being here. General Holder, you have 
risen in law enforcement to the very pinnacle of that 
profession, and those of us here on this panel have spent a lot 
of our lives in search and in the cause of the right laws and 
respect for the rule of law. And I would hope that there would 
be, in light of that, on both our parts, a strong consensus and 
a common respect for this thing called the rule of law. And yet 
earlier, Steve Chabot, Congressman Chabot, mentioned that the 
Affordable Care Act's employer mandate was delayed by this 
Administration for a year despite statutory language 
instructing that penalties associated with the mandate ``shall 
apply''--I am going to say it very clearly--``shall apply 2 
months beginning after December 31, 2013.''
    Now, your testimony was that the Treasury Department had 
come up with some legal interpretation that that did not apply. 
And I do not know whether that is dumbfounding or just 
heartbreaking. I mean, I really do not. If we cannot read that 
language clearly, then I think we are in trouble. So my next 
question to you may be superfluous. It may be a hopeful and 
hopeless exercise here.
    But my question is the Religious Freedom Act, Religious 
Freedom Restoration Act, declares that the Federal Government 
may not substantially burden a person's exercise of religion 
unless it had a ``compelling reason'' to do so. Now, you and I 
know what those words mean. So my question is, are the Federal 
agencies like yours or Federal agencies in general bound by 
statutory requirements put in place by Congress, like the 
Religious Freedom Restoration Act requirements I just 
described? Are they bound by those requirements put in place by 
Congress when they promulgate regulations?
    Attorney General Holder. Sure. I mean, if there are 
statutory mandates from Congress, those are the kinds of things 
that have to be used when we are proposing rules, regulations, 
things of that nature.
    Mr. Franks. All right. Then my next question is, did HHS 
consider the Religious Freedom Restoration Act and comply with 
it when it promulgated the HHS mandate which requires many 
religious employers to arrange and pay for employee health 
insurance that covers abortion-inducing drugs, contraceptives, 
and sterilization? Did they comply with that statute?
    Attorney General Holder. Well, I think the way in which the 
act was put together is consistent with the act, the way in 
which the religious organizations could express their concerns 
and the options that they had. I mean, this is something that 
is actually the subject matter of an ongoing case, and I do not 
want to get too much into it. But I think that the policy that 
the Administration has taken is consistent with the act that 
you referenced.
    Mr. Franks. I do not know. I mean, it sounds like we are on 
two different planets if that is the case. But let me ask you 
then, did the Department of Justice, including you or the 
Office of Legal Counsel, before any of the cases came about--I 
am not asking you to touch on any existing litigation--but 
before any of this occurred, did you provide any legal 
opinions, written or oral, regarding the religious employer 
exception to the HHS mandate?
    Attorney General Holder. Well, I had said previously the 
Department generally does not disclose the----
    Mr. Franks. But before all of that. I am trying to get 
ahead of that because we wrote you a letter like this, and the 
response we got back, we could not have been able to tie the 
two together it was that unresponsive.
    Attorney General Holder. I am sorry, ``the response did 
not?'' I did not hear you. You said----
    Mr. Franks. We wrote you a letter and your response was a 
total non-response, much like this. I mean, I am saying before 
the litigation ever occurred, did you ever come up--it is not a 
hard one, Mr. Attorney General.
    Attorney General Holder. It is not a hard answer. The 
Department does not generally disclose the content of 
confidential legal advice to the President or other 
governmental decision makers. It is something that not only 
this Department does, but other Departments of Justice. It is a 
policy we have always followed.
    Mr. Franks. Well, I am not countering that policy, but 
asking you if you had done anything prior to that that were 
legal opinions regarding the religious employer exception 
before any case was filed. I mean, I do not think you are going 
to answer the question. But could you provide any copies of any 
opinions addressing the application of Religious Freedom 
Restoration Act to the Federal Government, including any 
opinions by the Office of Legal Counsel, that address the need 
or a lack thereof for the religious employer exception? Do you 
have anything like that you could provide to us that would not 
be related to any litigation, but that would give us some idea 
of what your opinion of this statute is?
    Attorney General Holder. Well, as I indicated, it is not 
our practice to disclose the content of the legal advice that 
we give. To the extent that there are legal questions, you 
could ask HHS what was the basis for their legal determination 
to promulgate a regulation that is of concern to you.
    Mr. Bachus. I thank the gentleman----
    Mr. Franks. Unfortunately religious--thank you, Mr. 
Chairman.
    Mr. Bachus. I thank the gentleman from Arizona. At this 
time, I will recognize the gentlelady from California, Mrs. 
Chu, for 5 minutes.
    Ms. Chu. Thank you, Mr. Chair. Mr. Holder, the DoJ's 
existing guidance on racial profiling issued in 2003 outlines 
provisions to ban some forms of profiling. However, the 
guidance does not apply to profiling based on religion and 
national origin. This is problematic because profiling based on 
religion or nationality is significantly increasing.
    Now, it is my understanding that DoJ has been engaged in a 
review of its guidance throughout the past few years. In April 
2012, over 70 members of the House and Senate sent you a letter 
about this issue. When you testified before this Committee last 
year, you indicated that DoJ was nearing the end of the review, 
but still we have yet to see the updated guidance. What is the 
status of the review, and how will you address the issue of 
racial profiling based on religion and national origin?
    Attorney General Holder. Well, that review has, in fact, 
been underway for, as you say, an extended period of time. 
Well, I will say just maybe a little too long, but I think we 
are near the end of that process. We have made a great deal of 
progress, and my hope would be that we be able to complete the 
review in the relatively near future, and that we will be in a 
position to share with Members of Congress and the American 
people the result of that review. This is something that will 
happen on my watch.
    Ms. Chu. Do you have a time? Exactly when will this happen?
    Attorney General Holder. I am not sure that I can say 
exactly when, but I can say that we are far closer to the end 
now than we were before. I mean, this has been a painstaking 
process, but I am hopeful that we will be at an end relatively 
soon.
    Ms. Chu. As you know, many people are anticipating it, so 
we look forward to this. I understand that the racial profiling 
guidance includes a broad exception for counterterrorism 
investigation and national security. Yet there have been 
reported instances where the FBI has targeted mosques or 
profiled Muslims for little reason other than their faith. This 
occurred in San Francisco under the so-called Mosque Outreach 
Program in which the FBI collected information on the religious 
views and practices of Muslims in northern California and 
shared their surveillance with other government agencies, but 
without any apparent evidence of wrongdoing to target it.
    So of course it would be a great step forward if the DoJ 
guidance on racial profiling were amended to include a ban on 
discrimination on the basis of religion or national origin. But 
I am concerned about the national security exception eroding 
any such protections. Will the revisions under discussion 
include any changes to the national security exemption, and how 
will the DoJ ensure that the rights of innocent Americans are 
protected?
    Attorney General Holder. Well, I mean, I will say that it 
will be for others to decide whether the changes are 
appropriate, go far enough, do not go far enough. But the 
national security exception has been the focus of the effort 
that has been underway, as I said, for this extremely long 
period of time. And once announced, that will be the primary 
topic that will be discussed with regard to what the Justice 
Department has responsibility for.
    Ms. Chu. Okay. Well, switching gears, I would like to ask 
about the DoJ's Executive Office of Immigration Review. Mr. 
Holder, since so many non-citizens in immigration courts do not 
have attorneys and lack a basic understanding of the 
immigration court processes, what steps are the Executive 
Office of Immigration Review proposing to give non-citizens 
better access to information so they can move through court 
proceedings more expeditiously without sacrificing due process?
    Attorney General Holder. We are trying to make our EOR 
system better. We have a backlog of about 358,000 cases. It is 
a 56 percent increase from 2009. Our budget request asks for 
additional immigration judge teams so that we can get this 
backlog down to a better level. We are also trying to come up 
with ways in which make sure that people who find themselves in 
the system have adequate representation, doing a variety of 
things in that regard. We are trying to deal with the problem 
of unaccompanied minors. There are a whole range of cases, a 
whole range of issues, that we are trying to deal with.
    We are trying to be, again, as creative as we can, though 
we simply need at some level, we just need more money to put in 
place these teams to reduce the backlog, to otherwise find ways 
in which we can come up with this program to deal with people 
who have mental health issues, to deal with unaccompanied 
minors, and then deal with the other problem of people who 
appear and do not have either counsel or do not have adequate 
counsel. These are all issues that are problematic.
    And I point out again the need for a comprehensive 
immigration reform package that would deal with a whole variety 
of other things, but would help us a great deal with regard to 
what the Justice Department component is of the problem.
    Ms. Chu. Thank you. I yield back.
    Mr. Goodlatte [presiding]. The Chair thanks the 
gentlewoman, and recognizes the gentleman from Texas, Mr. 
Gohmert, for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman. General Holder, back 
April 27, 2011, at my request, the Chairman of this Committee, 
Lamar Smith, sent a letter to the Justice Department asking for 
the documents in the Holy Land Foundation that had been used to 
prosecute them. And since then we have had an ongoing back and 
forth, most recently in a letter June 13, 2013, asking for the 
documents. And I was fairly specific to make it clear that I 
got the documents that the Department of Justice handed over to 
people convicted of supporting terrorism.
    They are terrorists. We have given them the documents, the 
Justice Department has, and my information is that they have 
now been put on disk and sent to Illinois. So we know they are 
easily provided, just not to Members of Congress. But in the 
response after 7 months approximately from my letter in June, I 
am told, well, here is a link that will have nearly 500 
publicly available exhibits that were admitted into evidence, 
and then was also told to check the public access to court 
electronic records.
    Attorney General, I have read in the 5th Circuit opinion 
about 9,600 summaries of transcripts of conversations that the 
Justice Department had that were made available to attorneys 
for the terrorists. I still do not understand why your 
Department can provide documents to terrorists' lawyers, to 
four out of eight of the terrorists, and not provide them to 
Members of Congress.
    All I am asking again is could we please get the documents 
that have been put on disks of the 9,600 summaries of 
transcripts and the documents that are produced to the 
terrorists and not some link, but documents that you made 
available or your Department made available to the terrorists. 
I renew my request.
    Attorney General Holder. Well, I think what we promised to 
do is to provide you and your staff with----
    Mr. Gohmert. Sir, I have read you what your Department 
promised, and it is inadequate. And I realize that contempt is 
not a big deal to our Attorney General, but it is important 
that we have proper oversight.
    Attorney General Holder. You do not go there, buddy. You do 
not want to go there, okay?
    Mr. Gohmert. I do not want to go there?
    Attorney General Holder. No.
    Mr. Gohmert. About the contempt?
    Attorney General Holder. You should not assume that is not 
a big deal to me. I think that it was inappropriate. I think it 
was unjust. But never think that that was not a big deal to me. 
Do not ever think that.
    Mr. Gohmert. Well, I am just looking for evidence, and 
normally we are known by our fruits. And there been no 
indications that it was a big deal because your Department has 
still not been forthcoming in producing the documents that were 
the subject of the contempt.
    Attorney General Holder. You never wanted the documents.
    Mr. Gohmert. But let me move on. There have been other 
questions asked about----
    Attorney General Holder [continuing]. With regard to 
contempt. The documents that we were prepared to make available 
then we are prepared to make available now that would have 
obviated the whole need. This was all about the gun lobby and a 
desire to have----
    Mr. Gohmert. Sir, we have been trying to get to the bottom 
of Fast and Furious where----
    Attorney General Holder. That is what it is all about.
    Mr. Gohmert [continuing]. People died, where at least a 
couple hundred Mexicans died, and we cannot get the information 
to get to the bottom of that. So I do not need lectures from 
you about contempt----
    Attorney General Holder. And I do not need lectures from 
you either.
    Mr. Gohmert [continuing]. Because it is very difficult to 
deal with asking questions. As a former judge, I never have 
asked questions of someone who has been held in contempt. We 
waited until the contempt was purged and then we asked 
questions.
    Let me ask you, do you think someone who believes marriage 
is between a man and a woman violates the civil rights of a 
same sex couple?
    Attorney General Holder. Somebody's personal belief?
    Mr. Gohmert. Yes.
    Attorney General Holder. No.
    Mr. Gohmert. How about if they have a business and they 
believe that?
    Attorney General Holder. If they have a business? If a 
business has a----
    Mr. Gohmert. If it is a private business and the owners of 
the private business believe marriage is between and a woman, 
are they violating a same sex couple's civil rights, in your 
opinion?
    Attorney General Holder. Well, that obviously a matter that 
is under consideration by the courts, and we have taken a 
position on that. I would not want to get into something that 
is, as I said, a pending matter.
    Mr. Gohmert. Well, it is your opinion that matters on 
whether you tell attorneys general how to act in the States or 
how you approach businesses or individuals that have this 
biblical view that the President had when he was a senator in 
2008. So I thought it was rather important. Well, let me ask 
you----
    Mr. Goodlatte. The time of the gentleman has expired.
    Mr. Gohmert. Unfortunately.
    Mr. Goodlatte. The Chair recognizes the gentleman----
    Attorney General Holder. Good luck with your asparagus.
    Mr. Goodlatte. The Chair recognizes the gentleman from 
Florida, Mr. Deutch for 5 minutes.
    Mr. Deutch. Thank you, Mr. Chairman. And, Mr. Attorney 
General, thank you for being here. Under your leadership, 
General Holder, the DoJ has reached historic settlements with 
major banks and institutions. There is the $13 billion 
settlement with JPMorgan for its packaging and reselling of 
toxic mortgages leading up to the financial crisis. There was 
the $25 billion agreement with the Nation's five largest 
mortgage servicers for widespread foreclosure abuses. There was 
another $2 billion settlement with JPMorgan for its role as 
chief banker in Bernie Madoff's multimillion Ponzi scheme, and 
a $1.9 billion deferred prosecution agreement with HSBC Bank 
for laundering money for Mexican drug cartels and conducting 
transactions with Cuba, Iran, Libya, and Burma.
    But I want to return to something that Mr. Nadler brought 
up earlier, and I would like to also return, I gather as has 
been a theme this morning, to another hearing that was held 
before this Committee, in this case 3 years ago when we first 
learned that the DoJ was launching a billion dollar lawsuit 
against Deutsche Bank and Mortgage IT for repeatedly defrauding 
taxpayers when seeking insurance for bad mortgages. As you 
know, that billion dollar suit was eventually solved in a $200 
million settlement.
    And we had an exchange that although it is awkward, I just 
feel it is necessary to walk through. I had asked whether the 
Department would pursue criminal charges that could result in 
jail time for the heads of these larger banks and services, and 
you responded that ``If there are individuals who have taken 
actions that would warrant individual liability, that is 
something that we would pursue.''
    So I pointed out that under Sarbanes-Oxley, the statute 
provided for knowingly make false claims, one would be subject 
to fines of a million dollars, imprisonment of up to 10 years. 
If the claims were willful, the violations were willful, fines 
of $5 million and jail time of up to 20 years. And I asked if 
that would be the basis for potential claims, to which you 
responded, ``There are other statutes that we could bring, some 
as old and tried and true as wire fraud and mail fraud. There 
are a whole variety of tools that we have, including those that 
you have mentioned, and we will try to make use of all of those 
as we continue these investigations.''
    I then asked that given the vast array of potential claims 
that could be brought that would bring the potential of 
criminal violations, when would we expect to see the cases 
filed, to which you said, ``All I can tell you is we are 
looking seriously. We are going to pursue them aggressively, 
and as soon as we can make a determination and share that with 
the American people, we will. The possibility that those cases 
could be brought is certainly the case. We are in the process 
of looking them, and it is possible that criminal prosecutions 
will result.''
    It is now 2014, and not a single high-level executive with 
these financial institutions have faced criminal prosecutions. 
In fact, many of the settlements that DoJ has reached with 
these companies have absolved the individuals of ever answering 
to criminal charges.
    Now, the settlements that I referred to focused on actions 
by individuals at firms whose actions nearly brought down the 
United States economy. They are not minor infractions. They did 
not happen by accident. And it is difficult to believe that 
this illegal activity happened without the knowledge of any 
executive at any of these financial institutions. Indeed, it is 
difficult for many Americans to have full faith in our criminal 
justice system when none of the principals, none of the 
decision makers of these companies have been prosecuted, have 
been taken to court, have been tried before a jury.
    And I would just quote one more quote from Judge Jed 
Rakoff, Senior U.S. District Court judge, who said, ``Companies 
do not commit crimes. Only their agents do. And while a company 
might get the benefit of some such crimes, prosecuting the 
company would inevitably punish directly or indirectly the many 
employees and shareholders who were totally innocent. Moreover, 
under the law of most U.S. jurisdictions, a company cannot be 
criminally liable unless at least one managerial agent has 
committed the crime in question. So why not prosecute the agent 
who actually committed the crime?''
    We have seen many large settlements, General Holder, some 
to resolve the claims of illegal actions. But as Judge Rakoff 
points out, companies do not commit crimes, only their agents 
do. And to date, we have not seen any criminal convictions of 
executives in those companies. And I will ask what I asked 3 
years ago. Is the Department pursuing or going to pursue 
criminal claims against the people at these companies that 
committed the crimes that were the basis of the large 
settlements that were reached, the crimes that many Americans--
many Americans--are still recovering from today?
    Attorney General Holder. Well, it is still the position of 
the Justice Department that there is no institution that is too 
big to prosecute, no person who is too important to prosecute. 
As I indicated in a previous answer, there have been 
individuals prosecuted from JPMorgan, Goldman Sachs, Morgan 
Stanley Credit Suites, UBS, RBL Bank, ICAP, Galleon, SAC, 
Stanford Financial Group, all cases that have been brought 
against not those companies, but against individuals.
    The $13 billion agreement that we worked out with JPMorgan 
Chase has a carve-out that allows us to pursue criminal charges 
against individuals. And so, when we have capacity to make 
cases, we will make them.
    Mr. Deutch. General Holder, but in all of those cases that 
you listed, I appreciate those claims against individuals. But 
to date, none of the executives, none of the decision makers at 
any of these companies have been held accountable.
    Mr. Collins [presiding]. The gentleman's time has expired. 
The Chair now recognizes the gentleman from Ohio, Mr. Jordan.
    Mr. Jordan. I thank the gentleman. Mr. Holder, I sent you 
in the last several months six letters to you and agencies in 
the Justice Department, specifically ATF and FBI, asking for 
answers to basic questions--and I would stress ``basic 
questions''--about your criminal investigation into the IRS 
targeting of conservative groups, conduct that you called 
outrageous and unacceptable last May, and the investigation 
that you launched last May.
    And we have had countless legal experts tell us that giving 
answers to these questions, not what witnesses may have said, 
not what they convey, not to questions you ask, just basic 
information, that countless legal experts tell us this is more 
than appropriate to get this kind of general, basic 
information.
    So I just want to ask you just four quick questions. Bill 
Taylor, the attorney for Ms. Lerner, it has been reported in 
the press that he indicated she actually sat down with an 
interview at the Justice Department or with the Justice 
Department. So I just want to know a few things. When did you 
interview Lois Lerner, where did the interview take place, who 
was the personnel who conducted the interview at the Justice 
Department, and at any time during the interview did she 
exercise her Fifth Amendment rights and refuse to answer 
questions?
    Attorney General Holder. Because this is an ongoing matter, 
I am not going to answer those questions.
    Mr. Jordan. You cannot even answer--well, let me ask you 
this. Did you interview Lois Lerner?
    Attorney General Holder. As I said, this is an ongoing 
matter, and I am not going to comment on an ongoing matter.
    Mr. Jordan. So her attorney has reported that you did. You 
will not confirm that that, in fact, took place?
    Attorney General Holder. As I said, I am going to talk 
about an ongoing investigation. The Justice Department is not 
in the habit of talking about who was interviewed----
    Mr. Jordan. But this is part that always frustrates me. I 
am not asking you to tell me what she said. I am just saying 
did you talk to her. Just give me the date. Did you do it last 
May when you started the investigation? Did you interview her 
in June? Did you interview her in July? Did you interview this 
January? When did you do it?
    Attorney General Holder. Well, as I said, this is an 
ongoing matter that the Justice Department is actively 
pursuing, and as such, it would be inappropriate to comment on 
what it is that we are doing.
    Mr. Jordan. How is telling this Committee and, more 
importantly, the American people, the date you interviewed Ms. 
Lerner, if, in fact, you did that, and where that took place--
at her house, at the Justice Department, someplace you met? How 
is that going to compromise an investigation?
    Attorney General Holder. You do not understand the nature 
of what it is that we are doing. You cannot because you are not 
a part of the investigation.
    Mr. Jordan. Well, what some of us have made a big issue 
about is the fact Barbara Bosserman, who we have interviewed, 
have told us that she is the lead investigator. You were 
willing to tell Senator Cruz when he questioned you about that 
fact. You were willing to tell him she is not the lead 
investigator. So you were willing to give some specific 
information about the process and who is conducting and who is 
doing what, so it seems to me you opened the door to some of 
these basic questions when you said she is not the lead 
investigator on this investigation. So I am asking you just 
basic things, too, like did, in fact, you talk to Lois Lerner, 
or if it is not Barbara Bosserman who is the lead investigator, 
who is?
    Attorney General Holder. You seem to think a door has been 
opened. I do not think any door has been opened at all, and I 
think the answers that I have given are consistent with what I 
have----
    Mr. Jordan. Let me ask you about one other thing then. Did 
someone from the Justice Department leak to the Wall Street 
Journal that no criminal charges will be filed in the IRS 
investigation case?
    Attorney General Holder. I have no idea who told that to 
the Wall Street Journal.
    Mr. Jordan. This is from a January 13, 2014 report in the 
Wall Street Journal. ``The Federal Bureau of Investigation does 
not plan to file criminal charges over the IRS heightened 
scrutiny of conservative groups, law enforcement official 
said.'' Do you know who said that?
    Attorney General Holder. No.
    Mr. Jordan. Have you investigated who leaked that 
information to the Wall Street Journal?
    Attorney General Holder. Not to date.
    Mr. Jordan. You have not? A year ago in front of the Senate 
Judiciary Committee, you said this, ``We have tried more leak 
cases, brought more leak cases during the course of this 
Administration than any other Administration.'' So leaks are 
pretty important to the Justice Department, and you have not 
investigated the leak to the Wall Street Journal that no one is 
going to be prosecuted in the IRS targeting scandal?
    Attorney General Holder. If you look at all the leaks that 
occur----
    Mr. Jordan. No, I am asking about this leak. Have you 
investigated this leak?
    Attorney General Holder. Can I answer the question?
    Mr. Jordan. I am asking you a specific question. You said 
earlier you have not investigated it. I am asking you just to 
confirm you have not investigated the leak to the Wall Street 
Journal that no one is going to be prosecuted in the targeting 
of conservative groups case with the IRS.
    Attorney General Holder. As I said, if you look at all the 
leaks that happen in Washington, D.C. in connection with a 
whole variety of cases----
    Mr. Jordan. Mr. Attorney General, with all due respect, 
have you investigated that leak?
    Attorney General Holder [continuing]. We have looked at--I 
answered the question. We have looked at a number of cases. The 
cases that we have focused on in terms of leaks have generally 
been the ones that have dealt with national security. When I 
talked about the bringing of more cases, those were national 
security cases. When it comes to the disclosure of 
investigative matters, that is something that is 
reprehensible----
    Mr. Jordan. Are you saying this is not important?
    Attorney General Holder [continuing]. But it is not 
necessarily something that we investigate in every instance.
    Mr. Jordan. Just for the record, just for the Committee, 
just for the American people, can you answer one more time, 
have you investigated the leak to the Wall Street Journal that 
no one is going to be prosecuted in the IRS investigation?
    Attorney General Holder. Well, especially when you deal 
with----
    Mr. Jordan. It is a yes or no.
    Attorney General Holder. No, no, I am not going to answer 
that way. Especially when you deal with information that has no 
basis in fact. What would be the basis if somebody is providing 
information about a determination that has not been made?
    Mr. Jordan. If I could real quickly, Mr. Chairman.
    Mr. Collins. The gentleman's time has expired. The 
gentleman from Louisiana, Mr. Richmond, is recognized.
    Mr. Richmond. Thank you, Mr. Chairman. First, let me thank 
you, Attorney General Holder and Secretary Duncan for your 
support of the school discipline initiative, which I think is 
going to do wonders in communities across the country and curb 
our school to prison pipeline.
    Let me start with something that is not necessarily under 
your entire tenure, but it overlaps. And there was an article 
that detailed more than 650 cases of misconduct in the last 12 
years in the U.S. Attorney's Office with Federal prosecutors 
and so forth, which highlights the fact that OPR falls under 
you. And if you remember our issues in Louisiana, more 
specifically, Eastern District with our U.S. attorney stepping 
down, the first assistant, the second assistant.
    We have asked for the report to be made public. It has not 
been made public. And my question becomes your stance on the 
Senate bill, which would put it under the Inspector General in 
an independent area outside the Office of the Attorney General, 
which we plan to file a corresponding bill. So could you give 
me your feedback on that?
    Attorney General Holder. I am not supportive of any action 
that would put under the Inspector General that which now is 
the responsibility of the Office of Professional 
Responsibility. OPR has had, I think, a long and distinguished 
history of looking at these matters, recommending where 
appropriate punishment that has been carried out. They have a 
unique expertise. There are specific matters that I think only 
an OPR can handle. I have great respect for the Inspector 
General's Office, but I do not think that the merger of those 
functions would be in the best interest of the Justice 
Department.
    Mr. Richmond. Well, could I ask a question then? Why would 
we not make the OPR reports and the findings of misconduct 
automatically public when they conclude investigations and so 
forth? So that would be my general question.
    Attorney General Holder. Yes, and we are prohibited from 
doing so by a number of things, but chiefly by the Privacy Act. 
We do not have the ability because of the strictures of the 
Privacy Act to make available or to make public some of the 
findings we have done. We have tried to be more transparent 
over the years in producing summaries of the reports that we 
have made available. We sometimes share the reports with 
Congress and then Congress has the capacity to do with the 
report what it will in a way that we in the executive branch do 
not.
    Mr. Richmond. So if we request a report, we can get it?
    Attorney General Holder. I believe that that is generally 
true. A Committee Chair has to make the request.
    Mr. Richmond. Okay. What about the findings of 
prosecutorial misconduct or any prosecutorial infractions that 
are reported to the State Bar Associations, but not reported 
publicly? Can those be made public?
    Attorney General Holder. I am not sure how individual bars 
work or what we do with regard to referrals to the bars. I will 
have to look into that.
    Mr. Richmond. And let me just say, I am a lawyer, but 
prosecutorial misconduct and things like that I think should be 
public. And part of my concern today is that the Department of 
Justice can leak and say whatever it wants when it wants. And 
let us just look at the mayor's race in D.C., I am not 
commenting on anybody's guilt or innocence, but to have your 
name tied into a Federal investigation 3 weeks before your 
election, and to say that it leads toward you I think affects 
the electoral process.
    And if our assistant U.S. attorneys can do things like 
that, then I think they have to be held to the same standard 
when they become the subject of an investigation, disciplinary 
action, and so forth. I think we are on a very slippery slope 
when we start leaking information right before election time 
because we are influencing the election process.
    Attorney General Holder. Well, what happened in Washington 
was not a leak. It was a formal filing in public court about 
where a case was, a plea that involved a particular person who 
was involved with that person. And I understand your concern--
--
    Mr. Richmond. But we do those under seal. We do a lot of 
things under seal for a specific period of time.
    Attorney General Holder. I understand your concern and the 
criticism that has been leveled at that decision. But if you 
look at it in reverse, if the Justice Department had put 
something under seal and waited until the election was over and 
then revealed the information, we would have been charged 
potentially with withholding information that would have been 
relevant for voters to have.
    And so, what we do is simply bring the cases when they are 
ready to go. And sometimes it is awkward, but it is the best 
way in which to do these things, irrespective of what the 
political fallout is going to be.
    Mr. Collins. The gentleman's time has expired.
    Mr. Richmond. Thank you, Mr. Chairman, and I would yield 
back.
    Mr. Collins. The gentleman from Texas, Mr. Poe, is 
recognized.
    Mr. Poe. Thank the Chairman. Attorney General, I sent you a 
couple of questions that I will ask you again about. It has to 
do with the trafficking statute in the United States that not 
only prosecutes interstate, but international traffickers that 
come into the United States.
    Specific question, how many consumers/buyers have been 
prosecuted by your office under 18 U.S.C. 1591, the trafficking 
statute? Just the buyer, the consumer, the child abuser, 
whatever you want to call them.
    Attorney General Holder. Yes. We have, I think, statistics 
that deal with prosecutions under 1591, but I do not think that 
we break them down in the way that you have requested. I think 
that we have an issue there with regard to our ability to give 
you a precise number with regard to the specific category of 
people that you have talked about. So I am not sure. As I said, 
I think we can give you a general number about 1591, but I am 
not sure that we can break it down into component parts.
    Mr. Poe. I understand. Can you give me a number then of 
total folks that have been prosecuted under that statute, 
whether the trafficker or whether the buyer? Do you have that 
number?
    Attorney General Holder. I do not have that number in front 
of me, but I will pledge to get that number to you in due time. 
We will do that quickly. We will do that quickly.
    Mr. Poe. All right. Thank you. I want to move over to the 
issue of the NSA data collection. If I understand the law 
correctly, NSA does their thing, and they may refer a case to 
the Justice Department for prosecution. And they basically give 
you the evidence to prosecute. Is that a fair statement of how 
that works with the NSA?
    Attorney General Holder. I am sorry?
    Mr. Poe. The NSA does the investigation in a case, 
terrorist case, for example, but if they want it prosecuted 
they send it to your office and you prosecute the case. Is that 
correct?
    Attorney General Holder. NSA does not really do much in the 
way of investigating. I mean----
    Mr. Poe. The evidence that they obtain.
    Attorney General Holder. Yes. We would do the 
investigating, but we would----
    Mr. Poe. You would investigate, but you would get 
information----
    Attorney General Holder. Yes, we get information from a 
variety of places, including the NSA.
    Mr. Poe. All right. On February the 4th, Deputy Attorney 
General James Cole was here, and we talked about the massive 
collection of NSA information on Americans. And I asked him the 
question how many people have been prosecuted by the Justice 
Department to be attributed to the NSA bulk data collection 
program. And he said maybe one person. That was his testimony, 
and I have it here. Would you agree or disagree with his 
statement that only one person has been prosecuted based upon 
that massive amount of information that has been collected or 
not?
    Attorney General Holder. I do not know the precise number, 
but it is a small number. It is a small number.
    Mr. Poe. So it could be just one.
    Attorney General Holder. It could be. I just do not know.
    Mr. Poe. A small amount----
    Attorney General Holder. It is a small number.
    Mr. Poe. Small amount of individuals. Moving over to 
another issue regarding privacy, emails. Current law, as I 
understand it, if a person has an email, that email if it gets 
over 6 months old, is stored in the cloud, then the Justice 
Department does not need a warrant to go in and retrieve that 
email. Is that correct or incorrect?
    Attorney General Holder. Yes, but that is not a policy I 
think that we should continue.
    Mr. Poe. All right. I am just asking. The Justice 
Department does not need a warrant to obtain that email.
    Attorney General Holder. Yes, I think that is true, but 
what we have said is that policy, there needs to be a change 
made so that warrants would be appropriate regardless of the 
amount of time that has passed.
    Mr. Poe. I agree with you on that that a warrant should be 
imposed or required. Law enforcement goes into a person's 
private email account no matter how old it is, but you get a 
warrant from the Justice Department.
    Attorney General Holder. Right.
    Mr. Poe. Do you agree with that philosophy?
    Attorney General Holder. It should not be a function of 
time.
    Mr. Poe. And we have legislation, bipartisan, pending on 
that issue.
    Attorney General Holder. Right.
    Mr. Poe. The last question I want to ask you has to do with 
the concept of domestic use of drones by law enforcement on 
targeted surveillance. Right now my understanding is the FAA 
makes the rules and regulations about who gets a drone, who can 
use it for what purposes. Would you think it would be better 
that Congress intervene and employ legislation safeguarding the 
Fourth Amendment, right of privacy basically, on citizens, or 
do you suggest as the Attorney General that the FAA still 
control who gets a drone or not?
    Attorney General Holder. Well, actually, I mean, within the 
Department the only component in the Department that uses these 
vehicles at this point is the FBI. The ATF is in the process of 
working through to see if they want to make use of them. The 
Inspector General has recommended that we come up with some 
Department-wide policies about how these vehicles are used, and 
I think that would be an appropriate thing to do. And we are in 
the process of trying to work through what rules and 
regulations would handle the use of these kinds of vehicles.
    Mr. Collins. The gentleman's time has expired.
    Mr. Poe. Thank you.
    Mr. Collins. The gentleman from New York, Mr. Jeffries, is 
now recognized.
    Mr. Jeffries. Thank you, Mr. Chair, and thank you, Mr. 
General, for your appearance here today. Earlier today during 
this hearing in an exchange with my one of my colleagues 
related to concern about the Affordable Care Act, you were 
characterized as the President's legal advisor. Do you recall 
that characterization?
    Attorney General Holder. I think so, yes.
    Mr. Jeffries. I think it is an erroneous characterization. 
Now, let me ask you a question about that. Are you familiar 
with the title of White House counsel, Mr. General?
    Attorney General Holder. I have heard that.
    Mr. Jeffries. And would you agree that the White House 
counsel is actually the President's legal advisor in the 
constitutional system that we have created in America?
    Attorney General Holder. You have to understand as 
questions get fired at you, you cannot push back with regard to 
everything that is contained in a question. But you are right, 
I am not the President's legal advisor. I am the Attorney 
General of the United States, and there is a fundamental 
difference. The White House counsel is, in fact, the 
President's legal advisor.
    Mr. Jeffries. Thank you, Mr. General. Now, the 
characterization was also brought up earlier today suggestive 
of the fact that under your leadership, the Department of 
Justice has somehow engaged in prosecutorial decisions based on 
race and/or party affiliation. Do you recall that suggestion?
    Attorney General Holder. Yes.
    Mr. Jeffries. Now, my distinguished colleague from New 
Orleans recently asked the question of the matter in 
Washington, D.C. related to a mayoral candidate, who, in fact, 
lost the election after perhaps being linked to Justice 
Department activity. Was that current mayor a Democrat, Mr. 
General?
    Attorney General Holder. Yes.
    Mr. Jeffries. And he is a Black Democrat, is that correct?
    Attorney General Holder. Yes.
    Mr. Jeffries. Now, I also believe that the mayor of 
Charlotte was recently indicted, is that correct, by the 
Department of Justice?
    Attorney General Holder. That is correct.
    Mr. Jeffries. And was he a Democratic mayor, Mr. General?
    Attorney General Holder. I believe he is.
    Mr. Jeffries. Okay. And he is African-American as well, is 
that correct?
    Attorney General Holder. He is.
    Mr. Jeffries. So I think that the suggestions related to 
your Department of Justice, and there are a myriad of examples, 
but I have got limited time, are really irresponsible, 
reckless, and not evidence-based. And I think this Committee 
would be well served by staying within the four corners of the 
actual facts that are before us.
    I have got limited time, so I want to deal with the gun 
violence issues. It is one that affects the district that I 
represent in Brooklyn. I think we have a gun violence problem. 
In fact, in America 5 percent of the world's population, 50 
percent of the world's guns, more than 14,000 American who died 
as a result of gun violence since the tragedy in Newtown, 
Connecticut.
    Now, we have got a legislative track which unfortunately 
has been barren of activity, and then there is an 
administrative executive track. The President in January of 
2013 announced a series of initiatives, some of which he 
charged the Justice Department with engaging in, and I want to 
just explore where we are at in terms of that activity.
    It is my understanding the President directed the Attorney 
General to review the categories of individuals prohibited from 
having a gun to make sure that dangerous individuals are not 
possessing weapons that can do harm, is that right?
    Attorney General Holder. That is correct.
    Mr. Jeffries. Now, this is a real concern for the 
communities that I represent. We have tough gun control laws in 
New York State. A lot of the guns come from the neighboring 
State of Pennsylvania. Chicago famously has a lot of gun 
violence problems. A lot of their guns come from the 
neighboring State of Indiana. South Central Los Angeles has got 
some gun violence problems. A lot of their guns come from the 
neighboring State of Arizona. That is why the Justice 
Department engagement is so significant.
    Where do things stand in terms of that review that the 
President charged the Department of Justice with in January of 
2013?
    Attorney General Holder. I do not remember the exact 
number. I think there were 17 or 21 things that came out of the 
review that the President asked us to review. And I think that 
we have now completed all of the things that the President 
asked us to do, which I think was as far as we could go using 
only the executive power that we have.
    There is still a need, I think, for legislation to deal 
with the common sense measures that would help deal with the 
gun violence problem in this country. We have tried to do what 
we could with regard to enhanced background checks, but there 
is still the need to close, for instance, the gun show 
loophole, to deal with the problem of assault weapons, to deal 
also with the problem of these large clips. These are things 
that, again, are overwhelmingly supported by the American 
people, make sense, and would keep the American people safe.
    Mr. Jeffries. Mr. General, I agree that there is an 
absolute need for congressional action. But let me also say 
that in the interim I think it is important, and I would like 
to be able to work closely with the Department of Justice, the 
ATF, to deal with some of the underground problems that we have 
in America today short of legislative action because the 
children that I represent, some of whom are dying on the 
streets of Brooklyn, are from illegal guns from other parts of 
the country, cannot afford for us to wait for congressional 
action.
    And with that, I yield back.
    Mr. Collins. The gentleman from New York yields back. The 
gentleman from Utah, Mr. Chaffetz, is now recognized.
    Mr. Chaffetz. Mr. Attorney General, thank you for being 
here. It is an honor to be able to question you. The last time 
I had a chance to question you was May 15 in 2013. I was asking 
you about General Petraeus and his time as the CIA director. I 
followed up with a letter on March 3, 2014. I have communicated 
with your legislative staff through our staff.
    My question for you regarding--again, this is about General 
Petraeus' time as director of the CIA--my understanding is that 
the FBI did go to General Petraeus' home. They took documents 
and other items. There is some feedback that perhaps the FBI is 
a bit frustrated that there has not been a prosecution moving 
forward. Can you give the status of what is happening, and is 
there any friction with the FBI in what to do with this case?
    Attorney General Holder. All I can say is that this is an 
ongoing investigation. I am really not in a position to say 
much more about it than that. I will say, I have been briefed 
on this matter, and I did not detect any friction in what is an 
ongoing matter.
    Mr. Chaffetz. You know, we are talking about 2 years later, 
and this is still hanging over his head. Is that fair? Is that 
really fair to have somebody who has been touted as one of 
America's greats having this hang over his head for 2 years? 
When do you anticipate closing this out?
    Attorney General Holder. That is a very legitimate 
question. I sat with General Petraeus in the Situation Room 
when he was the head of the CIA. He was a great colleague. I 
think he is a true patriot.
    Mr. Chaffetz. I have got to get to some more specific 
questions. I think that is the concern, too, is that this has 
been hanging over his head, and it just does not seem fair to 
have this hang over his head for so long. When did this happen 
when they went to his home and extracted these documents?
    Attorney General Holder. As I said, I cannot comment about 
an ongoing investigation.
    Mr. Chaffetz. Last time I asked you, you said that you 
first found out about this in the summer of 2012. Was that 
accurate? You were going to get back to me. I have not heard 
back from you.
    Attorney General Holder. Both the question when you posed 
it was a long time ago, and when I actually was first aware of 
this is kind of a long time at this point. It was some time 
certainly in 2012, but exactly when I do not know.
    Mr. Chaffetz. There seem to be a number of mandatory 
reporting statutes that were not complied with. That is one of 
the concerns. As Senator Feinstein said, ``A decision was made 
somewhere not to brief us, which is atypical. This is certainly 
an operationally sensitive matter, but we were not briefed. I 
do not know who made that decision.'' This was quoted on the 
NBC news.
    Attorney General Holder. Well----
    Mr. Chaffetz. I mean, why not inform the Congress? Why not 
do the necessary requirements under the law, the National 
Security Act of 1947?
    Attorney General Holder. Without commenting on the 
investigation itself, but with regard to our decision or 
determination about how we would interact outside of the 
Justice Department. We did not think on the basis of the 
allegations that we were looking at that there was any basis or 
any concern that we had about our national security on the 
basis of----
    Mr. Chaffetz. There is a news report that in the spring of 
2012 General Petraeus' schedule was compromised, and that his 
security detail was informed of that. Is that true?
    Attorney General Holder. Again, I do not want to go into an 
ongoing investigation.
    Mr. Chaffetz. When is this going to be complete?
    Attorney General Holder. It is a matter that is ongoing 
that we are working diligently to resolve.
    Mr. Chaffetz. Do you have any idea when the President was 
told?
    Attorney General Holder. I do not remember right now.
    Mr. Chaffetz. Do you remember when Mr. Morrell was told, 
his deputy?
    Attorney General Holder. I do not remember that as well.
    Mr. Chaffetz. Mr. Brennan? Do you know when Mr. Brennan was 
informed?
    Attorney General Holder. I do not remember. I am not sure--
--
    Mr. Chaffetz. Mr. Attorney General, I have got the greatest 
respect for you. I appreciate personally the time you have 
taken with me. I asked questions in the Committee about a year 
ago. I sent you a follow-up letter. I work with the legislative 
staff. We come before a hearing again, and it appears as if you 
took no time to go back and ask for these very basic things. We 
are dealing with not the head of the Department of Fish and 
Wildlife. We are talking about the CIA director, somebody who 
is revered in this country. And here we are 2 years later. It 
seems suspicious that it continues to linger without any sort 
of relief.
    And I think the Congress' understanding of how you deal 
with the mandatory requirements to inform the Congress is 
something that is concerning Senator Feinstein. It concerns me. 
I think it is fair to say it concerns the Intelligence 
Committee. And that is what we would like some help 
understanding over the course----
    Attorney General Holder. Well, I think we complied with the 
reporting requirements that you referenced and that, I guess, 
Senator Feinstein had referenced also. I can also tell you that 
the matter has, again, not talking about the specifics, but the 
fact of it. The matter has been handled in a diligent way, and 
sometimes these matters, they just unfortunately take time.
    Mr. Chaffetz. In the CRS, as I yield back, says ``It seems 
that once the FBI investigation turned to possible hacking 
involving Petraeus' private email account, the purpose of the 
investigation was likely to discover where the compromise of 
intelligence may have occurred, in which case it would seem 
then to fit the definition of intelligence activity under the 
NSA.'' I would just point to this CRS report, Mr. Chairman, of 
November 15 of 2012. I yield back.
    Mr. Collins. The gentleman's time has expired. The 
gentleman from Rhode Island, Mr. Cicilline, is recognized.
    Mr. Cicilline. Thank you, Mr. Chairman, and I thank the 
Attorney General for being here today. I want to just make two 
quick points before I get to my question. One is I associate 
myself with the remarks of Congressman Deutch on the urgent 
necessity of prosecuting the executives of these financial 
institutions that are responsible for harm that was caused to 
millions of Americans and many Rhode Islanders. And appreciate 
and applaud the work you have done to hold institutions 
accountable, but urge you to continue and to help us to restore 
the public's confidence in our judicial system by prosecuting 
the decision makers, as Congressman Deutch has suggested in his 
questions.
    And second, just to quickly follow up on Mr. Nadler's 
national security letter question we wrote to you on February 
19, and I look forward to a written response. But just to urge 
you again to look at this issue because if you look at the 
history between NSL letters and 215 and the kind of the shift 
in use of them, the unanimous recommendation of the President's 
commission was, and I quote, ``That all statutes authorizing 
the use of national security letters should be amended to 
require the use of the same oversight, minimization retention, 
and dissemination standards that currently govern the use of 
Section 215 orders.'' And I would just urge you reconsider your 
position on that. I think there is a reason to harmonize those 
and to protect the privacy interests of the American people.
    But what I would like to focus on in terms of my question 
is the issue of gun violence and the ways that the Justice 
Department might think about supporting State and local efforts 
to combat this serious problem in our country. Unfortunately 
there seems to be a concerted strategy of obstruction here in 
Congress about doing anything to address the issue of firearm 
related violence, and that is despite the gun violence claimed 
the lives of more than 360,000 in the United States between 
1999 and 2010, including more than 35,000 children and 
teenagers according to the National Center for Injury 
Prevention and Control.
    But a lot of States and municipalities and local 
stakeholders are working to address this complicated problem, 
and I would like to ask you about whether the Department of 
Justice has made an effort to study the effectiveness of two 
particular strategies for addressing this issue. One is the 
product of State practices and another is more locally focused.
    The State practice is some States have enacted laws that 
require mental health professionals to report certain 
individuals in identifying information about individuals who 
are seriously mentally ill or found to pose a danger to 
themselves or others to a firearms prohibition database, New 
York and Connecticut being two of them. Obviously, I would be 
interested to know whether or not you have looked at these and 
whether these are effective strategies, particularly California 
who has had it for a couple of decades.
    And the second is related really to a local kind of 
innovation by, and I will give one example in my home State 
that I know you know about. You visited Providence in 2011, and 
I know you had the opportunity to meet with the street workers 
at the Institute for the Study and Practice of Nonviolence and 
with my senator, Senator Whitehouse. And this is an 
organization that works very closely with the police department 
using former gang members to help combat violence and to help 
de-escalate situations. They have been heroic in their work in 
terms of preventing violence, but they are, like many 
organizations, struggling for funding.
    And so, is the Justice Department figuring out ways to both 
identify best practices like the street workers at the 
institute in Providence that are effective, and then figuring 
out how we can support them with funding streams because they 
spend so much time on the brink because they just do not have 
the resources, and they are doing really good work that is 
combatting gun violence and other kinds of violence. I would 
just love to hear your thoughts on both of those issues.
    Attorney General Holder. Well, you have raised two very 
good points. We have recently proposed a regulation that seeks 
to clarify who, due to mental health reasons, is prohibited 
under Federal law from receiving, possessing, shipping, or 
transporting a firearm. Now, this regulation is open for public 
comment, I guess, until the beginning of this month. And it 
deals with the whole question of what is an adjudicated or a 
mental defective or committed to a mental institution.
    And so, what we have tried to do is put it out for comment 
and see what we get back. And expansion potentially of who 
under the mental health disqualifier would be prohibited from 
possessing a firearm. So that regulation is out there. Public 
comments will come in. Those comments obviously will be looked 
at before we propose a final rule.
    With regard to the Street Program, for lack of a better 
term, that you described, those are the kinds of things that we 
are trying to identify through our Office of Justice Programs, 
things that are unconventional, that are creative, that 
sometimes raise people's eyebrows about who is involved in 
these kinds of effort, but ultimately that are potentially 
successful. And we try to use an evidence-based approach.
    We do not go into it with any pre-conceived notions. I am 
familiar, at least a little bit, with what you are describing 
in Rhode Island. It is consistent with what we have seen in 
other States as well where you get former gang members who have 
fully turned around. And if they can be used in a positive way 
and have a positive impact on those who might otherwise 
duplicate the mistakes that they made, those are the kinds of 
programs that we want to support.
    Again, it is why our budget request, I think, is so 
important. We need the funds and the capacity to fund and 
support these innovative, creative efforts not all of which are 
going to be successful and not all of which we will continue to 
support. But at least we want to try to give people who are 
trying to do innovative, appropriate, creative things at least 
a first chance.
    Mr. Collins. The gentleman's time has expired. The 
gentleman from South Carolina, Mr. Gowdy, is recognized.
    Mr. Gowdy. Thank you, Mr. Chairman. General Holder, I 
appreciate the fact that you cannot comment on pending 
investigations. I do. So I would not ask you that. I wish the 
President would also follow your advice because when he said 
there is not a smidgen of corruption on national television 
talking about an ongoing investigation, not only did he 
undermine people's confidence in the efficacy of that 
investigation, in my judgment, he undermined your Department, 
because you cannot comment on it. I think he should have taken 
a pass and said the exact same thing that you said when Jimmy 
Jordan just asked you the question.
    I also want to thank you because I think you are coming to 
Charleston on Friday to see our U.S. Attorney and the work that 
the women and men of our U.S. Attorney's Office are doing in 
Charleston. The U.S. Attorney in South Carolina is a wonderful 
friend of mine. We met on opposite sides of a death penalty 
case, which is a strange place for a friendship to begin. And 
he is an avowed progressive, and I am a conservative from the 
upstate of South Carolina. But we are wonderful friends I 
think, in part, because we hold out this hope that the law will 
trump politics, that it is the greatest equalizing force in our 
country, and it is the greatest unifying force in our country.
    So I want to thank you for going to Charleston, and I want 
to ask you some questions about rule of law and prosecutorial 
discretion. If a bill becomes law and there is no question with 
respect to its constitutionality, does the Chief Executive have 
to enforce that law?
    Attorney General Holder. Have to enforce it?
    Mr. Gowdy. Yes.
    Attorney General Holder. The President has the 
constitutional responsibility to enforce the laws. The 
executive branch has the responsibility of enforcing the laws.
    Mr. Gowdy. Right. So you agree with me that if a bill 
passes and is signed into law, and there is no allegation of a 
lack of constitutionality, the chief executive has to enforce 
that law.
    Attorney General Holder. We are talking about a 
hypothetical situation here now, and given the hypothetical 
that you have espoused, I would think there would obviously be 
a responsibility to enforce the law.
    Mr. Gowdy. Do you agree that there is a difference between 
enforcing the law and following the law?
    Attorney General Holder. I am not sure I quite understand 
that question.
    Mr. Gowdy. Well, here is the distinction I would make. Your 
Department is asked to enforce certain statutes, Title 18 
statutes. You have prosecutorial discretion. You can decide 
that with these facts, we cannot get a conviction. But if 
Congress were to impose upon you a duty, in other words, to 
make a report to us by a certain date, then you would have to 
follow that law. You are not enforcing it, you are following 
it.
    So the case law has made a distinction between enforcing 
the law where prosecutorial discretion comes into play and 
following the law prosecutorial discretion is not a defense. So 
if we were to ask you to do something, you would have to follow 
the law and you could not cite prosecutorial discretion as a 
reason not to follow the law.
    Attorney General Holder. Well, I would agree, but I would 
disagree to this extent. If Congress passed a statute that said 
the Justice Department was obligated to bring every case under 
Title 18, Section 1951, every public corruption case under a 
particular statute, I think that would violate the separation 
of powers.
    Mr. Gowdy. I agree. I agree, because that would thwart 
prosecutorial discretion. But if Congress were to tell you you 
have to make a report or you have to do something by X date and 
impose a duty on the executive branch itself, prosecutorial 
discretion is not going to get you out of that, or else 
prosecutorial discretion consumes all of the law. If you have 
the ability to both not enforce and not follow law, then we 
have no law.
    Attorney General Holder. Well, no. If Congress were to 
impose upon us a reporting requirement, I would agree with 
that. I mean, to say, all right, you know, tell us how many 
cases you have brought under this statute by December 31 of 
whatever year, something like that.
    Mr. Gowdy. You have to follow it.
    Attorney General Holder. I think we have the obligation to 
fulfill that reporting requirement.
    Mr. Gowdy. Right. I want to ask you this. You issued a memo 
directing in certain circumstances that your AUSAs and USAS not 
inform the grand jury and, therefore, not inform the jury, and, 
therefore, not inform the judge about drug amounts.
    Attorney General Holder. About drug?
    Mr. Gowdy. Drug amounts in Title 21 cases.
    Attorney General Holder. I am sorry, drug?
    Mr. Gowdy. Amounts.
    Attorney General Holder. Drug amounts. I am sorry. Go 
ahead.
    Mr. Gowdy. Right. It is a memo. ``In cases involving Title 
21 mandatory minimum sentences based on drug type, prosecutors 
should decline to charge the quantity necessary to trigger 
mandatory minimum.'' General Holder, we already have a safety 
valve. Congress has already passed a law that if you meet these 
requirements, the mandatory minimum is not applicable. So why 
would you eschew what Congress has done and trump it with a 
memo? I am really honestly trying to understand how you can 
respect the law and disrespect a statute that Congress has 
already passed.
    Attorney General Holder. Well, the view that we had based 
on a review that I ordered back in January of 2013, I guess, 
was that we have to do something about the prison population 
that we have. We also have to come up with a system that is 
both more effective, more efficient, and keeps the American 
people safe.
    And what I ultimately have tried to do is to push 
discretion in the hands of the men and women who serve as 
assistant U.S. attorneys to look at the defendant who is in 
front of them and make an appropriate determination based on 
the conduct of that person what an appropriate sentence is.
    Mr. Gowdy. Mr. Chairman, I know I am out of time. Could I 
ask unanimous consent for 30 seconds just to follow up? Just 30 
seconds?
    Mr. Collins. Without objection.
    Attorney General Holder. That is fine.
    Mr. Gowdy. Thank you. Attorney General, I would just ask 
you under this general heading of respect for the rule of law 
that you would come to like-minded Members of the Judiciary 
Committee and say we need to expand the safety valve because we 
have a law that does what your memo purports to do. And if we 
ever get to the place in this society where a memo is on equal 
footing with the law, I think we are in trouble. So I would 
encourage you to come to Rand Paul and Raul Labrador and others 
who are like minded and fix the statute, not the memo. And with 
that, I would yield back.
    Attorney General Holder. As indicated in my opening 
statement, Congressman Labrador's approach, Senator Paul's 
approach, Senator Durbin, Senator Lee, these are all the kinds 
of things that we want to work with Congress about. I think 
there are ways where ultimately the best of all possible fixes 
is to work between the executive branch and the legislative 
branch. That is something that we are desirous of doing.
    But I do think that the policy pronouncements that I have 
made in recent months are consistent with the law, and also are 
consistent with good law enforcement. But I----
    Mr. Collins. Go ahead. You can continue.
    Attorney General Holder. I was just going to say at the end 
of the day, I think the best thing would be for the two 
branches to get together and come up with a common approach.
    Mr. Collins. The gentleman's time has expired. The 
gentleman from Idaho, Mr. Labrador, is recognized.
    Mr. Labrador. Thank you, Mr. Chairman. And, Mr. Holder, 
thank you for being here today. And I actually want to follow 
up a little bit on what my good friend, Trey Gowdy, was saying. 
As you know, you and I have had many disagreements over our 
history, and I hope you know now that I am from Idaho. And one 
area where we agree is on the Smarter Sentencing Act, which is 
have introduced in the House with my colleague on the 
Committee, Congressman Bobby Scott.
    I am very pleased that you are supportive of this 
legislation. I also understand that the President is supportive 
of this legislation. However, the concern that I have, you 
know, my job as a Member of Congress is to try to get my like-
minded friends to agree with me on certain pieces of 
legislation even if it is outside of the scope of what they 
usually think about. And this something that I think you would 
agree Republicans have not always agreed with Democrats on, and 
it is something that I have been working for the last year or 
so trying to get Republicans on board.
    But you make actually my job much more difficult when you 
unilaterally, as you have, you write memos, and you try to do 
the same thing through memos that we are trying to accomplish 
through this legislation. When you say you are not seeking 
mandatory minimum sentences for nonviolent drug crimes, you are 
working around Congress instead of with Congress.
    So I am extending to you my hand right now to work with you 
to help pass the Smarter Sentencing Act. But could you please 
help me try to pass the Smarter Sentencing Act by not going 
around the law, and by trying not to work through executive 
action only, but actually working with Congress. Could you do 
that for me, because it is making my job much more difficult.
    Attorney General Holder. Well, we certainly want to work 
with you, as I indicated to Congressman Gowdy. I think the 
policy pronouncements that I made and, frankly, the raising of 
this issue in that speech I gave in August of, I guess, what, 
2013, I guess, at the ABA in San Francisco is what really in 
many ways generated the conversation that we are now having.
    Again, I am talking about pushing discretion to assistant 
U.S. attorneys to make determinations about what is an 
appropriate sentence, what is an appropriate charging decision 
subject to supervisory control for a defendant that is front of 
them as opposed to a previous policy that existed that required 
every assistant U.S. attorney to charge the most serious 
offense that could be proven, almost regardless of what other 
factors were in existence. I have got more faith in the men and 
women who serve in this Department of Justice to make the right 
decisions.
    Mr. Labrador. But you are telling them not to charge 
certain crimes. I am not sure that you are exhibiting faith. 
You are actually telling them do not charge certain crimes, and 
if they do not follow your orders, I think it is going to be 
something--I have never been an assistant U.S. attorney like my 
good friend, Trey Gowdy, but I am not sure that that is 
something that somebody would do.
    Now, let us talk about a different issue. We have heard a 
lot recently about the President's record of deportations. And 
my friends on the other side continue to say that these are 
record deportations, that we have not as many deportations in 
the history of the United States. But my understanding is that 
the majority of what the Administration is counting as 
deportations are from the border and not from the interior. Is 
that correct?
    Attorney General Holder. I am just not aware. I do not know 
that.
    Mr. Labrador. And when I look at the number of orders of 
removals in the DoJ's Fiscal Year 2012 statistical yearbook, I 
see that they actually have dropped 30 percent since 2009, and 
are down by 42 percent since 2005. How do you explain the 
Administration's claim that we have record deportations, but 
your own statistical yearbook says that they have dropped and 
continue to drop in 2013?
    Attorney General Holder. Well, you know, I do not have the 
statistics in front of me, but I know that the President has 
been, I think, unfairly labeled the deporter in chief. I think 
he is----
    Mr. Labrador. Well, I agree with you. I think he has been 
unfairly labeled because we are playing tricks with the 
numbers. You are counting people who were stopped at the border 
that in the past were not being counted as deportations. And I 
think it has been a trick of my friends on the other side to 
try to claim that there has been a record number of 
deportations, but I believe actually the evidence does not bear 
that out.
    Attorney General Holder. Well, when I said ``unfairly,'' I 
only meant to say that this somehow betrays an inconsistency in 
what the President has proposed with regard to his 
comprehensive immigration plan, and his sensitivity to the 
needs of the immigrant community, and what he has done with 
regard to these deportations. I do not think that there is 
necessarily a tension between them, and that is why I think 
that the label that has sometimes been placed on him is an 
unfair one.
    Mr. Labrador. Okay. Thank you. I yield back my time.
    Mr. Goodlatte [presiding]. The Chair thanks the gentleman, 
and recognizes the gentleman from Texas, Mr. Farenthold.
    Mr. Farenthold. Thank you very much, Mr. Chairman. You 
know, I understand that this Committee has a constitutional 
duty of oversight over the Department of Justice, and that is 
why we have Mr. Holder here today. But I do not think that I 
can be a part of eroding the constitutional balance of power 
favoring the executive over the legislative.
    You know, I do not think Mr. Holder should be here. He is 
in contempt of this body. I have called for his resignation. I 
have sponsored articles of impeachment. And this week I am 
going to be introducing legislation that would prevent Federal 
employees who are held in contempt of Congress or fail to fully 
comply with congressional subpoenas not be paid their taxpayer-
funded salary. And I am going to try to get that enclosed with 
the appropriations bills that will be going through.
    I am committed to maintaining the constitutional balance of 
power and the authority that this legislative branch has. And I 
just do not think it is appropriate that Mr. Holder be here. If 
an American citizen had not complied with one of the Justice 
Department subpoenas, they would be in jail, not sitting here 
in front of us testifying. But I realize there are questions to 
be asked, and I yield the remainder of my time to Mr. Gowdy.
    Mr. Gowdy. I thank the gentleman from Texas. General 
Holder, I want to go back to our mandatory minimum. If this 
were methamphetamine instead of Altoids, and I am going to 
trust that it is Altoids because it is Marino's. If that were 
methamphetamine, Congress passed a statute that that amount 
would get you a mandatory minimum 5 years. But Congress also 
passed a statute that if you had a de minimus criminal history, 
were not an organizer, did not use a weapon that the mandatory 
minimum would not apply. Now, that is after the fact. That is 
after the trial. That is after you have been in front of a 
judge to change your plea. Your memo tells the AUSAs not to 
cite the drug amount. I mean, they cannot.
    Attorney General Holder. No, it does not say that. The memo 
says that, you know, you take into consideration the totality 
of the circumstances in making a charging determination. It 
does not mean that if you, Trey Gowdy, you know, with your 
hypothetical here, you are a bad guy, you are a drug dealer, 
then you have got, I do not know, 15 ounces or whatever of 
Altoid/methamphetamine that you cannot be hit with a maximum 
sentence, you cannot be hit with a mandatory minimum. That in 
the discretion is an appropriate determination. If on the other 
hand----
    Mr. Gowdy. But why not just exercise your prosecutorial 
discretion and not prosecute the case period? If you do not 
want low level drug dealers in Federal prison, you have 
absolute unfettered authority to tell your AUSAs do not pursue 
the case because in drug cases all 50 States have drug laws. 
And if you do not prosecute it, the State DA will.
    Attorney General Holder. That is the first part of the memo 
that I sent out to the field, which was to make determinations 
about what truly is a Federal case, you know, when you bring it 
to the first----
    Mr. Gowdy. All right. Well, all I am going to ask you to do 
is think about that you are going to see men and women in 
Charleston on Friday that if a judge asked them a question, 
they have no choice but to answer that question honestly. 
Whatever the question the judge asks----
    Attorney General Holder. Sure.
    Mr. Gowdy [continuing]. You either answer it honestly or 
you are going to jail.
    Attorney General Holder. Right.
    Mr. Gowdy. What if a grand juror asked the question how 
much drugs are involved? The grand jury is about to draft the 
indictment. They are about the true billet. They want to know. 
And it is more than 50 grams, which triggers a mandatory 
minimum 10 years. Are we not putting your AUSAs in the position 
of not being honest with the grand jury?
    Attorney General Holder. No, not at all.
    Mr. Gowdy. How not?
    Attorney General Holder. You can tell the grand jury that 
the amount is, let us say, above 50 grams. However, the 
charging document that we have does not specify an amount, and 
this is the reason we are not specifying the amount that is 
contained in the document that we are asking you to approve. 
You are being totally truthful with the 23 members of the grand 
jury.
    Mr. Gowdy. One other point. In our safety valve, it is 
required that the defendant cooperate with government. In your 
memo it is not required that the defendant cooperate with the 
government to get out from under a mandatory minimum. You would 
agree with me that cooperation with the government is very 
important when you are working narcotics cases. So why did you 
not require that?
    Attorney General Holder. That is one of the factors that is 
to be taken into consideration in making those kinds of 
determinations. The memo that I sent out did not say do not do 
this in a kind of, you know----
    Mr. Gowdy. It said ``Prosecutors should decline to charge 
the quantity necessary to trigger a mandatory minimum if the 
defendant meets the following criteria.'' I can tell you, if I 
got that memo from you and the defendant met that criteria but 
did not meet all the criteria from Congress, I am going to go 
with the guy who signs my paycheck. And there is a conflict 
between the two. That is my point is your memo is trumping a 
congressional statute.
    Attorney General Holder. Well, I mean, we always have 
discretion. And would you say that----
    Mr. Gowdy. But you do not have discretion on whether to 
follow the law or not. That is my point.
    Attorney General Holder. Well, no, I would disagree in the 
sense that taking into account resource constraints, it is 
incumbent upon those of us in the executive branch to make the 
maximum use of the resources that Congress gives to us. That 
necessarily we are always making choices about the kinds of 
cases that we bring, how we deal with the cases that we bring.
    Mr. Gowdy. But you are already expending the resources of 
the prosecution or you and I would not be having the question. 
This is all about sentencing. I have no qualms if you say I am 
going to decline prosecution. You have an unfettered right to 
do that. What I am saying is you do not have the right to say 
in mandatory minimum cases do not tell the grand jury what the 
drug amount is. I just think you are putting your AUSAs in a 
tough position, but as is always the case, I could be wrong. 
And I am definitely out of time.
    Mr. Farenthold. I yield back.
    Mr. Goodlatte. The Chair thanks the gentleman, and 
recognizes the gentleman from North Carolina, Mr. Holding, for 
5 minutes.
    Mr. Holding. General Holder, thank you for being here. A 
quick follow-up on a previous question. In the investigation of 
the IRS, there is a person who is leading that investigation, a 
first chair, if you will. I mean, there has to be. That is how 
you would run an investigation. Is that prosecutor a member of 
the Public Integrity Section or is it a member of the Civil 
Rights Division?
    Attorney General Holder. I would say it is a joint 
investigation being done by Civil Rights as well as by Public 
Integrity.
    Mr. Holding. Well, I wish you would tell us who is in the 
first chair, but you will not. At the same time that you issued 
the memo regarding charging the drug weights, part of that memo 
had to do with compassionate release and expanding the criteria 
for eligibility for compassionate release because historically 
it has been incredibly difficult to get compassionate release.
    And some of the new criteria are circumstances in which 
there has been a death or incapacitation of a family member or 
a caregiver of the inmate's child, or circumstances in which 
the spouse or registered partner of the inmate has become 
incapacitated. I think those are pretty broad exceptions of 
eligibility criteria. How many people do you estimate to be 
eligible for compassionate release that are currently in the 
Federal system?
    Attorney General Holder. I do not know. You know, we have, 
and I believe these numbers are correct, over 100 people in the 
Federal system now who are over the age of 80. I think 30 
something over the age of 85. Those would be, I think----
    Mr. Holding. These criteria that I am looking at are pretty 
broad. A lot of inmates have children. A lot of inmates have 
spouses or partners. And, you know, this would apply to them. 
It has to be a pretty broad number. Have you put into place any 
methods to track these people after they are released under 
compassionate release?
    Attorney General Holder. I mean, these are the kinds of 
things that we will put in place to make sure that the 
determinations that we are making appropriate ones, I mean, 
because I think it is only the responsible thing to do if you 
are going to try these new policies to see what is the impact 
of them. And to the extent that we are releasing people who 
then engage in other crimes----
    Mr. Holding. And you put in the memo that, you know, you 
will consult with the U.S. Attorney's Offices on these cases 
about compassionate release, but the authority to grant with 
them is with the director of the Bureau of Prisons. So, you 
know, there is any judicial restraint that could be on these 
compassionate releases, or is it just an order by the director 
of the Bureau of Prisons?
    Attorney General Holder. I believe the way it goes is that 
it is by statute the Bureau of Prisons through the U.S. 
Attorney's Office has to petition the court for the release.
    Mr. Holding. Right. Well, to switch gears here before I run 
out of time, I am concerned about the illegal distribution of 
tobacco products, counterfeit cigarettes, illegally gotten 
cigarettes that are put into the system, counterfeit tax 
stamps.
    And, you know, we all know here that cigarette smuggling is 
often a funding source for terrorism or organized crime. We 
also know that ATF is charged with the investigation of 
tobacco-related crimes. It is the ``T in ``ATF.'' People forget 
about that. You know, I appreciate that they are focused on 
firearms, but I would like to know and maybe you could have 
some staff brief my staff on what DoJ and ATF are doing to 
crack down on tobacco smuggling crimes, and what resources you 
have got placed into this, and what recommendations you have 
for additional resources that you would need to properly engage 
in the enforcement of this.
    Attorney General Holder. We can certainly do that. I think 
the point you make is one that people would find a little hard 
to believe, but you know being that you are a former U.S. 
attorney that, in fact, there at least have been a couple of 
instances where there was a tobacco terrorism connection. We 
know that. And so, but we will have our staffs interact.
    Mr. Holding. All right. And before I forget, I will ask for 
a follow-up on the compassionate release and any studies you 
have got of people who are in the system, numbers that might be 
eligible, and whatever system you have for tracking these 
people as they are released into the system under these new 
criteria and further illegal conduct that they might engage in.
    Attorney General Holder. That is fine.
    Mr. Holding. Thank you. Mr. Chairman, I yield back.
    Mr. Goodlatte. The Chair thanks the gentleman, and 
recognizes the gentleman from Georgia, Mr. Collins, for 5 
minutes.
    Mr. Collins. Thank you, Mr. Chairman. I mean, this is my 
second one with you in coming here, Mr. Attorney General, and I 
appreciate you coming. And it is always interesting to know 
what I have seen in my short time, but also looking at history. 
And I think one of the things that comes across today is just 
very much of a lack of trust in who is prosecuted, who is not 
prosecuted. We have heard that comment going on.
    I just happened to be in another Committee this morning, 
saw this article. Just pulled it out of a 2009 paper that said 
``Obama open to prosecuting Bush officials over abuse.'' This 
is sort of what started the whole look, and I think there is 
even going to be a day of reckoning for these past few years, 
and that has tainted everything that has come forward. When you 
see, as my friend from Iowa has talked about, the prosecution 
cases not prosecuted, other things.
    And it gets into an issue here in which the gentleman from 
South Carolina brought it up, the gentleman from Idaho has 
brought it up, and it is the fact of how we can work together. 
There is a process to this, Mr. Attorney General, and that is 
working together even through difficulties and even when we do 
not agree and there are problems. Even to the point of we 
cannot in this Committee today seem to understand that you are 
an advisor to the President, and that was mentioned by Mr. 
Chabot, and then it was sort of mockingly mentioned by my 
friend from New York.
    But even on your own budget request for the Office of Legal 
Counsel, it says ``the mission of OLC is to assist the Attorney 
General in his function as legal advisor to the President and 
all of the executive branch agencies.'' If this not your role 
and this is not their role, then I think we have found some 
money for you to put into ideas so we will defund this program 
and put this money into other places.
    So are you saying, again, to this Committee that you are 
not a legal advisor to the President on a lot of different 
issues?
    Attorney General Holder. Sure I am, but not the way in 
which it was used in that question. The question was posed as 
if I were the person kind of almost pulling the strings for the 
President. Of course I am an advisor to the President, and of 
course I have a particular area of responsibility with regard 
to that advice.
    But in terms of, you know, the person who on a day-to-day 
basis is advising the President, that is the White House 
counsel as opposed to the Attorney General because there is a 
wall. There is an independence that exists between the Justice 
Department and the White House.
    Mr. Collins. I am very familiar with that wall. I think 
just in the conversations going on, that it needs to be 
understood, and I think it goes back to this, you know, issue 
of oversight and discussion.
    I want to turn your attention to ATF. We just talked about 
it from the gentleman from North Carolina and tobacco, which is 
a concern. But I have a bigger concern over just what seems to 
be a lack of oversight from your office and overall when ATF 
was going through multiple interim directors. There is now a 
full-time appointed and confirmed director of ATF.
    But in Atlanta, I want to go back to an issue of the 
storefront. We have been over Fast and Furious. We are not 
going to talk about that. I want to go back to the storefront 
issue in Atlanta. This was at a time in which the current 
administrator was not in charge and there were interims going 
on, but you were ultimately in charge of ATF, correct?
    Attorney General Holder. Yes.
    Mr. Collins. So you have oversight. Does it not concern 
you, and I think it concerns many on this, that there seems to 
be, especially from Fast and Furious to this storefront 
operation, why there seemed to be no concerted oversight from 
your office, especially when there was not a permanent 
director. Can you help me understand why they seemingly were 
able to operate very rogue programs?
    I come from a law enforcement background. My father was in 
law enforcement. And the actions of one represents all, and 
they should not, and I agree with you there. But why was this 
going on? And I have asked specific questions, which they are 
supposed to meet with me next week, but I still have not gotten 
the answers. Why was this program from your perspective not 
better managed?
    Attorney General Holder. Well, I think it was just poor 
management, poor decision making. But I also think, you know, 
that Congress bears some of the responsibility here by not 
approving a person, a Senate confirmed person, to run ATF. That 
makes a fundamental difference.
    Mr. Collins. So hold on just 1 second. I have a question 
there. So you are saying that if we do not confirm somebody or 
that----
    Attorney General Holder. I am not saying----
    Mr. Collins [continuing]. By the Senate. By the way, the 
Senate side would confirm, not us.
    Attorney General Holder. Oh, I am not blaming you all.
    Mr. Collins. That you put somebody in an interim role that 
they cannot make good decisions, that they use handicapped 
personnel to recruit folks? They take police weapons. They do 
not inform the local police that they have the weapons? In 
fact, Atlanta and Fulton County are still searching. The ATF 
has not acknowledged that they have the guns?
    Attorney General Holder. No, that is not what I am saying. 
I am saying that that is a factor in why you saw, I think, some 
of the things happen in ATF. If you look at the leadership that 
Todd Jones has been able to bring to that organization as the 
Senate-confirmed head of that organization, there is a certain 
gravitas that he has that people who preceded him simply did 
not have.
    Mr. Collins. I had a great time talking to him.
    Attorney General Holder. It is only a factor. It is only a 
factor.
    Mr. Collins. I had a great time talking with him last week. 
Now I am talking with you because during the time he was not 
there, these were going on. And to me, that is one of the 
things that has overridden these hearings a lot is just a 
simple lack of administrative trust on what is going on on the 
oversight, especially in ATF, but in other areas where it is 
viewed, and especially when we cannot seem to work together on 
getting stuff done.
    Instead, as you worded it just a moment ago, it was 
discretion to, as we were talking about, the drug instance. 
Discretion does not mean you cannot follow the law. Discretion 
is always there, and I think that is the concern that I have 
here, and it is the concern that just pops up whether it is 
ATF, whether it started back years ago. There is just a basic 
lack of trust when you look at prosecutions, when you look at 
the issues going on, and we cannot seem to get answers that are 
not just basically blown off.
    And I do not understand that from your perspective, 
especially with an agency like ATF that has already had 
problems why the leader would not have taken a better hands on 
role there. Can you explain that one to me?
    Attorney General Holder. Well, we have provided documents. 
We have provided evidence.
    Mr. Collins. But did it concern you? Not the documents. I 
want to know from you, Mr. Attorney General.
    Attorney General Holder. Sure it concerns me. The notion 
that you would use mentally unstable people, you would tattoo 
them, that you would do ridiculous things like that, is absurd, 
and people will held be accountable.
    Mr. Collins. How were they held accountable?
    Attorney General Holder. It is crazy.
    Mr. Collins. How were they held accountable?
    Attorney General Holder. Well, the investigation----
    Mr. Collins. What did you do to hold these people 
accountable?
    Attorney General Holder [continuing]. Is being run by the 
Inspector General. Once those findings are made and people are 
identified, they will be held be accountable, in the same way 
that happened with regard to other things that ATF was involved 
in.
    Mr. Collins. These are several years old, and so it is 
hard----
    Mr. Conyers. Mr. Chairman, can we have regular order?
    Mr. Goodlatte. The time of the gentleman has expired.
    Mr. Collins. My time has expired. Mr. Attorney General, 
thank you for your questions. My time has expired.
    Mr. Goodlatte. The Chair recognizes the gentleman from 
Florida, Mr. DeSantis, for 5 minutes.
    Mr. DeSantis. Thank you, Mr. Chairman. Thanks for coming, 
Attorney General Holder. I want to follow up. You have been 
asked by Senator Lee about the Obamacare employer mandate 
delay, and then today by Congressman Chabot, and you cited the 
IRS analysis. So I have that if we can provide that for you.
    It is actually very simple. It is just one sentence, and it 
basically says that ``The Secretary shall prescribe all needful 
rules and regulations for the enforcement of this title, 
including all rules and regulation as may necessary by reason 
of any alteration in law in relation to Internal Revenue.'' 
Again, that is 7805-alpha.
    So how would that trump an obligatory statutory mandate, 
because in the Affordable Care Act it says that ``This mandate 
shall take effect.'' It does not say ``discretionary.'' This is 
providing authority to implement statutes and to prescribe 
rules for that effect. But how would this be used to trump that 
deadline, because the deadline has essentially been suspended 
twice. In the second suspension, there was additional gloss 
added. Now instead of a 50-employee, now we have this 50- to 
100-employee, and there are different rules being prescribed. 
So what would you cite within that regulation that would give 
the executive branch the authority to suspend the statute?
    Attorney General Holder. Well, as I indicated, the Treasury 
Department came up with the analysis and the basis for the 
delay. It seems to me that it is not a question of trumping. It 
seems to me that it is consistent with the act, and the action 
taken by the Administration in that regard was appropriate.
    Mr. DeSantis. So let me ask you another issue. In November 
we had this issue with Obamacare. Plans were being cancelled. 
It was obviously politically difficult for the President's 
party in particular. And the way that provision worked, there 
is a grandfather provision, so as soon as the ACA was passed, 
you could potentially have been covered if you had existing 
coverage. But any new coverage that anyone got after that March 
2010 date, the grandfather clause just did not apply.
    So this was causing a lot of problems in the marketplace, 
so the President came out to the podium in the White House 
press room, and he said this: ``Already people who have plans 
that pre-date the Affordable Care Act can keep those plans if 
they have not changed.'' That was already in the law. That is 
what is called a grandfather clause that was included in the 
law.
    Today we are going to extend that principle both to people 
whose plans have changed since the law took effect and to 
people who bought plans since the law took effect. So if the 
grandfather clause is limited to plans that pre-date the 
implementation of Obamacare, where would the executive branch 
get the authority to extend the coverage of the statute to 
plans that were not covered by the law?
    Attorney General Holder. Well, again, I do not know exactly 
what the basis is for that action. I am confident that the 
determinations that were made within the Administration are 
consistent with the law. I think we all need to pull back a 
little bit here. Pull back a bit. We have got 7.1 million who 
have signed up, people who have healthcare now who did not have 
it before.
    Mr. DeSantis. It does not excuse whether you are doing it. 
With all due respect, you can do good things or bad things----
    Attorney General Holder. No, can I finish----
    Mr. DeSantis. But I think you are trying to----
    Attorney General Holder. I have given you a chance to ask a 
question.
    Mr. DeSantis. I know, but my time is limited, sir. I 
understand what you are going to say.
    Attorney General Holder. Well, let us go past 5 minutes 
then. How about that? And let us pull back a little back and 
see that people who did not have healthcare before now have it. 
People who did not have great healthcare before now have it. 
People who had pre-existing conditions are now covered. Younger 
people, like my kids who are unemployed, can stay on my 
healthcare plan, that there are going to be, you know, 7.1 
million people signed up. There are substantially greater 
numbers of people in those other categories that I have 
mentioned. And let us look at that. Look at the totality of 
that before you start to pick at these things, which are not 
insubstantial. They are legitimate questions----
    Mr. DeSantis. But, Mr. Attorney General, the rule of law 
ultimately--we have a constitutional system. That is one of the 
things that makes our country unique from others is that you 
have separation of powers. This whole architecture was designed 
ultimately----
    Attorney General Holder. And you tried to repeal it 50 
times, and that is part of the constitutional system----
    Mr. DeSantis [continuing]. To protect individual freedom. 
And so, to say that, oh, well, people are now staying on their 
parents' plans, that has nothing to do with the executive 
action that was taken in this instance, and we are trying to 
determine whether the President has gone beyond in this case by 
rewriting provisions of the statute. And basically you have 
simply referred to other analysis, but most of us on this 
Committee find that analysis has been wanting, and we do not 
think that it has been good.
    Final thing, this Dinesh D'Souza prosecution, I know you 
are not going to comment on the ongoing investigation, but it 
was a straw donation reimbursement scheme is the allegation. 
The FBI did say that this was uncovered during a routine review 
of FEC filings. And so, my question to you is, to put aside 
this case, how would it even be possible if all you are doing 
is reviewing the FEC filings to know that some of those 
donations have been reimbursed? Would you not need to actually 
have targeted one of those donors and done additional 
investigation? It just seems to me by simply reviewing the FEC 
filings that is not going to be sufficient.
    Attorney General Holder. Well, I am not going to comment, 
as you said, on the ongoing investigation, but I can certainly 
tell you that information comes to the FBI, to the Justice 
Department in a variety of ways. And on the basis of the 
receipt of that information, determinations are made about what 
cases are going to be investigated, what cases are ultimately 
going to be prosecuted.
    Mr. DeSantis. But that is not really----
    Mr. Goodlatte. The time of the gentleman has expired. The 
Chair recognizes the gentleman from Missouri, Mr. Smith, for 5 
minutes.
    Mr. Smith of Missouri. Thank you, Mr. Chairman. Attorney 
General, a pleasure to have you here. Does Federal law prohibit 
the sale or possession of marijuana?
    Attorney General Holder. Technically, yes.
    Mr. Smith of Missouri. Technically. Is it not under the 
Controlled Substance Act of 1970 where it defines that as a 
Schedule 1 drug? So that is a fact, right? Correct?
    Attorney General Holder. Yes.
    Mr. Smith of Missouri. Okay. And whenever State law 
conflicts with Federal law, does Federal law take precedence?
    Attorney General Holder. That is generally true. It is not 
always true.
    Mr. Smith of Missouri. Would it be true in the case of the 
Controlled Substance Act of 1970?
    Attorney General Holder. That is an interesting question. 
If a State, for instance, decided to decriminalize possession 
of a particular substance, there is at least an argument that 
can be made that the Federal Government could bring a supremacy 
clause suit against the State. But there is an argument that 
could be made that a State cannot be forced to criminalize 
something. So it is actually an interesting question.
    Mr. Smith of Missouri. Is it, would you say, similar to the 
Arizona immigration case?
    Attorney General Holder. No. There I think it is clear that 
the responsibility for the enforcement of immigration law is 
something that is clearly Federal in nature. There is not a 
dual responsibility as there is with regard to certain criminal 
laws.
    Mr. Smith of Missouri. I thought it was interesting in that 
Arizona case that Justice Kennedy, who wrote the majority 
opinion, said ``States may not pursue policies that undermine 
Federal law.'' And the Controlled Substance Act is a Federal 
law, and the State of Colorado is undermining that Federal law, 
correct?
    Attorney General Holder. No. I mean, what we have said that 
we are looking at the way in which the law is being enforced or 
how we are going to enforce the law in Colorado and in 
Washington as well. We are going to apply those eight factors 
that we have put together, and we are going to use our limited 
resources to go after people who engage in the trafficking use 
of marijuana that has an impact on those eight factors.
    Mr. Smith of Missouri. So if my fellow former colleagues in 
the State house and State Senate would say the State of 
Missouri does not want to participate in the Affordable Care 
Act, could or would you all sue the State of Missouri?
    Attorney General Holder. Well, certain States have made 
that determination by not expanding Medicaid.
    Mr. Smith of Missouri. So my constituents, if they do not 
sign up, they will not be penalized in their IRS forms?
    Attorney General Holder. No, that is not the way the 
statute is written.
    Mr. Smith of Missouri. Okay. Well, we know what the statute 
says in the Controlled Substance Act of 1970, and it says 
marijuana sale or possession is a violation of Federal law. I 
always visit my schools back home. I talk to the kids. And I 
always try to bring home the theme of being a responsible 
citizen to society and to obey the laws of the land. And one of 
the laws of the land, which is Federal law, from 1970, 10 years 
before I was ever born, that says that marijuana, the sale or 
possession, is a violation of Federal law. What do you say to 
those kids when you are in the classrooms and they ask why you 
choose to enforce certain laws and some laws you do not 
enforce?
    Attorney General Holder. Well, first I would say that with 
regard to our eight enforcement priorities, the very first one, 
the thing that will bring about Federal involvement, Federal 
concerns, Federal action, is number one, preventing the 
distribution of marijuana to minors. We have limited resources. 
I do not think you are meaning to suggest that the Federal 
Government should prosecute every possessory marijuana case 
that exists in the United States, which technically, I suppose, 
we would have the ability to do. That is not what you are 
proposing, right?
    Mr. Smith of Missouri. You know, the law of the land is the 
Controlled Substance Act of 1970 that says all marijuana, it is 
a violation of even one marijuana cigarette. That is what the 
law says, correct?
    Attorney General Holder. So you are saying that we should 
prosecute every one of those cases----
    Mr. Smith of Missouri. I am asking you. You are the 
Attorney General of the United States.
    Attorney General Holder. And I am asking you a question, I 
think, legitimately in return to the question that you posed to 
me.
    Mr. Smith of Missouri. I am asking why you fail to enforce 
the laws of the land, Attorney General.
    Attorney General Holder. Your premise is wrong. We are 
enforcing the laws of the land. We are enforcing the laws----
    Mr. Smith of Missouri. Does the law of the land say that 
under 1970 that the sale or possession of marijuana is illegal?
    Attorney General Holder. We are enforcing the law 
consistent with the----
    Mr. Smith of Missouri. And do States in the United States 
allow the sale of marijuana?
    Attorney General Holder. We are enforcing the law 
consistent with those eight enforcement priorities. And again, 
the question I have for you which you have not answered is 
would you have us prosecute every marijuana possession case 
that exists in the United States of America?
    Mr. Smith of Missouri. Attorney General, when you actually 
answer my----
    Attorney General Holder. Would you have us do that?
    Mr. Smith of Missouri [continuing]. Colleagues' question, I 
would be more than happy to answer yours.
    Attorney General Holder. I will take that as a no.
    Mr. Goodlatte. Thank you. The time of the gentleman has 
expired. The Chair recognizes the gentleman from Pennsylvania, 
Mr. Marino, for 5 minutes.
    Mr. Marino. Thank you. General, I want to talk to you about 
two issues. These are important to my district. One is the OC 
spray, the pepper spray, for Federal prisons, number one. And 
number two is going to be the DEA and prescription drug issues. 
So I think you may recall that we have had a couple of 
discussions on the pepper spray.
    In August of 2012, the Bureau implemented a pilot 
evaluation of the pepper spray at seven high security 
institutions. In February of 2013 after 6 months' review 
period, data indicated that OC spray significantly reduced 
incident containment times. As a result of these findings, the 
pilot program was expanded, I believe, to include all high 
security prisons in the Federal system detention centers and 
jails.
    In my district, the 10th District of Pennsylvania, we have 
the highest number of Federal prison workers of any district 
that I know of in the country. I hear from prison guards about 
their concerns for their safety. These concerns have only risen 
since the tragic death of Eric Williams--you and I were at his 
funeral--who was working in the Canaan Penitentiary and was 
brutally attacked by an attack. And since this horrific event, 
I have been asking for higher safety security measures for our 
guards as well as more staffing.
    You were to give us a comprehensive report on the results 
of the spray. But you know something? Giving the results of the 
report really is not that critical to me. My question is, why 
have we not put the pepper spray into effect throughout the 
Federal system for not only those officers, but also 
individuals that work there?
    Attorney General Holder. Congressman, if I could get back 
to you on that because we are all thinking that, in fact, as a 
result of that trial, the program has, in fact, been rolled 
out. But if that is not the case, I want to be able to respond 
to you in a way that is accurate.
    Mr. Marino. Let me help you out there. I think it has been 
rolled out for the official guards who are responsible and have 
supervision over the inmates. Where it has not been rolled out, 
and you can correct me if I am wrong later, is, for example, 
there was a supervisor in a kitchen in one of the prisons. He 
is not really a ``prison guard.''
    Attorney General Holder. I see what you mean.
    Mr. Marino. But he was attacked, brutally attacked. And he 
was one person supervising about 20 people in that kitchen. So 
why would he or she in counseling and in any other situations, 
because they have all been trained. You have made sure that 
they have all been trained on this. I think they should all 
have it.
    Attorney General Holder. I see.
    Mr. Marino. And I would appreciate it if you would really 
kick that into gear as soon as possible.
    Attorney General Holder. All right. I understand what you 
are saying. All right. We will look at that. We have, I think, 
a new and different relationship with the union and with, I 
think, the people they represent, but that is something that I 
think is worthy of examination. I understand what you are 
saying.
    Mr. Marino. Thank you. Believe me, I have the utmost 
respect for the Justice Department. That was the pinnacle of my 
career when I was there. I am going to switch over to 
prescription drugs now and DEA. You underscored the 
Department's commitment to fighting the rampant abuse of 
prescription drugs and heroin. You know the epidemic that that 
has caused, and I commend you for that effort.
    But I was troubled by some language that you chose, noting 
the Department's enforcement initiatives. At least I inferred 
you seem to equate legitimate supply chain businesses to 
illicit narcotics cartels. I found that disappointing. This 
mindset, it is extremely dangerous to legitimate business. As a 
matter of fact, how am I reading this, and this is why I 
introduced a bill, H.R. 4069, Ensuring Patient Access and 
Effective Drug Enforcement Act of 2014. My legislation would 
encourage more collaboration--the operative term ``more 
collaboration''--between DoJ and legitimate companies trying to 
work with you to prevent prescription drug abuse.
    My understanding is the DEA now is going to the drug 
companies and saying you should have realized that the amount 
of drugs that you were sending out to this particular 
individual, you should have made the determination that that 
individual was abusing drugs. And then these legitimate 
businesses are being held responsible for that and fined and 
perhaps put out of business.
    So I am asking if the people of DoJ in this area and DEA 
talk with these companies, sit down and put together 
guidelines, because they have told me they have asked DoJ, DEA, 
well, what are the guidelines. Can you give us some ideas, 
because when I was a prosecutor both at the State and Federal 
level, shipping companies and even pharmaceuticals brought 
information to our attention saying, hey, we think there may be 
an issue here going to this particular address. You might want 
to look into it. So I am asking you to set guidelines up for 
these companies so they can work very closely with you so we 
can, if not eliminate, significantly curtail the abuse of 
prescription drugs. Could you do that?
    Attorney General Holder. Sure. And I certainly did not mean 
to imply, and I do not think I said in the remarks I made, for 
instance, referring to that tape that was made, that companies 
who are legitimately producing these very useful products, they 
cannot be held responsible for the distribution chain down the 
road where doctors, people steal, you know, doing a whole 
variety of things. I do not want to cast that wide a net.
    And to the extent that there are concerns by people and 
industry, I would more than welcome a conversation. Perhaps you 
could facilitate----
    Mr. Marino. I would love to.
    Attorney General Holder [continuing]. To have that 
conversation because the reality is we cannot, and this is the 
thing that concerns me, that there are people who have 
legitimate needs for these kinds of prescriptions, these kinds 
of substances that relieve pain. And we cannot in our desire, 
our legitimate desire and one that I am pushing, to stop opioid 
use, which potentially leads to heroin involvement. We cannot 
lose sight of the fact that there are good people, sick people, 
good companies who employ good people who are trying to do the 
right thing.
    Mr. Marino. I see my time has expired, but if you find 
yourself not having something to do one some evening, which you 
probably never do, I would love to discuss the issues 
concerning mental health and the criminal justice.
    Attorney General Holder. Okay.
    Mr. Marino. Thank you, sir. I yield back.
    Attorney General Holder. Thank you.
    Mr. Goodlatte. The Chair thanks the gentleman. And, General 
Holder, he is the 34th Member to ask questions of you. So we 
thank you very much for joining us today and answering a lot of 
questions from a lot of Members of this Committee.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    And, General Holder, we hope that you will answer those 
questions in writing in a reasonable period of time.
    This hearing is adjourned.
    Attorney General Holder. Thank you, Mr. Chairman.
    [Whereupon, at 1:47 p.m., the Committee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

  Questions for the Record submitted to the Honorable Eric H. Holder, 
Jr., Attorney General, United States Department of Justice, Washington, 
                                  DC*
---------------------------------------------------------------------------
    *The Committee had not received a response to these questions at 
the time this hearing record was finalized and submitted for printing 
on July 15, 2014.


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



                                 [all]
