    [Senate Hearing 114-771]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 114-771

                          CONFIRMATION HEARING ON THE
                      NOMINATION OF HON. LORETTA E. LYNCH
                             TO BE ATTORNEY GENERAL
                              OF THE UNITED STATES

    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION

                                   ----------

                            JANUARY 28 and 29, 2015

                                   ----------

                               Serial No. J-114-2

                                   ----------

             Printed for the use of the Committee on the Judiciary

                     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                           U.S. GOVERNMENT PUBLISHING OFFICE

    25-638 PDF                       WASHINGTON: 2018

             Printed for the use of the Committee on the Judiciary

                           COMMITTEE ON THE JUDICIARY

                      CHARLES E. GRASSLEY, Iowa, Chairman
    ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont,
    JEFF SESSIONS, Alabama                   Ranking Member
    LINDSEY O. GRAHAM, South Carolina    DIANNE FEINSTEIN, California
    JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
    MICHAEL S. LEE, Utah                 RICHARD J. DURBIN, Illinois
    TED CRUZ, Texas                      SHELDON WHITEHOUSE, Rhode Island
    JEFF FLAKE, Arizona                  AMY KLOBUCHAR, Minnesota
    DAVID VITTER, Louisiana              AL FRANKEN, Minnesota
    DAVID PERDUE, Georgia                CHRISTOPHER A. COONS, Delaware
    THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut

                Kolan L. Davis, Chief Counsel and Staff Director
          Kristine Lucius, Democratic Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

         JANUARY 28, 2015, 10:03 A.M., and JANUARY 29, 2015, 10:05 A.M.

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page
    Feinstein, Hon. Dianne, a U.S. Senator from the State of
      California:
        January 28, 2015, prepared statement.........................   322
    Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa:
        January 28, 2015, opening statement..........................     1
        January 29, 2015, opening statement..........................   119
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont:
        January 28, 2015, opening statement..........................     4
        January 28, 2015, prepared statement.........................   330
        January 29, 2015, opening statement..........................   121

                                   PRESENTERS

    Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New
      York presenting Hon. Loretta E. Lynch, Nominee to be Attorney
      General of the United States...................................     7
    Schumer, Hon. Charles E., a U.S. Senator from the State of New
      York presenting Hon. Loretta E. Lynch, Nominee to be Attorney
      General of the United States...................................     6

                            STATEMENT OF THE NOMINEE

    Witness List.....................................................   179
    Lynch, Hon. Loretta E., Nominee to be Attorney General of the
      United States..................................................     8
        prepared statement...........................................   180
        questionnaire and biographical information...................   185

                          STATEMENTS OF THE WITNESSES

    Attkisson, Sharyl, Investigative Journalist, Leesburg, Virginia..   123
        prepared statement...........................................   241
    Barlow, David B., Partner, Sidley Austin LLP, Washington, DC.....   125
        prepared statement...........................................   244
    Clarke, David A., Jr., Sheriff, Milwaukee County, Milwaukee,
      Wisconsin......................................................   133
        prepared statement...........................................   246
    Engelbrecht, Catherine, Founder, True The Vote, Houston, Texas...   137
        prepared statement...........................................   250
    Fedarcyk, Janice K., Fedarcyk Consulting LLC, Crownsville,
      Maryland.......................................................   128
        prepared statement...........................................   256
    Legomsky, Stephen H., John S. Lehmann University Professor,
      School of Law at Washington University, St. Louis, Missouri....   129
        prepared statement...........................................   261
    Newsome, Rev. Dr. Clarence G., Cincinnati, Ohio..................   126
        prepared statement...........................................   281
    Rosenkranz, Nicholas Quinn, Professor of Law, Georgetown
      University Law Center, and Senior Fellow in Constitutional
      Studies, The Cato Institute, Washington, DC....................   135
        prepared statement...........................................   286
    Turley, Jonathan, J.B. and Maurice C. Shapiro Professor of Public
      Interest Law, George Washington University Law School,
      Washington, DC.................................................   131
        prepared statement...........................................   296

                                   QUESTIONS

    Questions submitted to Sharyl Attkisson by Senator Grassley......   459
    Questions submitted to Sheriff David A. Clarke, Jr., by Senator
      Grassley.......................................................   461
    Questions submitted to Hon. Loretta E. Lynch by:
        Senator Cornyn...............................................   332
        Senator Cruz.................................................   343
        Follow-up questions submitted by Senator Cruz................   372
        Senator Durbin...............................................   391
        Senator Feinstein............................................   392
        Senator Flake................................................   403
        Senator Franken..............................................   406
        Senator Graham...............................................   407
        Senator Grassley.............................................   409
        Follow-up questions submitted by Senator Grassley............   448
        Senator Hatch................................................   470
        Senator Leahy................................................   472
        Senator Lee..................................................   473
        Senator Perdue...............................................   477
        Follow-up questions submitted by Senator Perdue..............   486
        Senator Schumer..............................................   490
        Senator Sessions.............................................   491
        Follow-up questions submitted by Senator Sessions............   501
        Senator Tillis...............................................   508
        Follow-up questions submitted by Senator Tillis..............   511
        Senator Vitter...............................................   514
        Follow-up questions submitted by Senator Vitter..............   522
        Senator Whitehouse...........................................   524
    Questions submitted to Prof. Nicholas Quinn Rosenkranz by Senator
      Grassley.......................................................   462
    Questions submitted to Prof. Jonathan Turley by Senator Grassley.   466

                                    ANSWERS

    Responses of Sharyl Attkisson to questions submitted by Senator
      Grassley.......................................................   525
    Responses of Sheriff David A. Clarke, Jr., to questions submitted
      by Senator Grassley............................................   529
    Responses of Hon. Loretta E. Lynch to questions submitted by:
        Senator Cornyn...............................................   534
        Senator Cruz.................................................   549
        Follow-up questions submitted by Senator Cruz................   588
        Senator Durbin...............................................   624
        Senator Feinstein............................................   626
        Senator Flake................................................   638
        Senator Franken..............................................   643
        Senator Graham...............................................   645
        Senator Grassley.............................................   650
        Follow-up questions submitted by Senator Grassley............   708
        Senator Hatch................................................   730
        Senator Leahy................................................   734
        Senator Lee..................................................   736
        Senator Perdue...............................................   744
        Follow-up questions submitted by Senator Perdue..............   764
        Senator Schumer..............................................   771
        Senator Sessions.............................................   774
        Follow-up questions submitted by Senator Sessions............   795
        Senator Tillis...............................................   808
        Follow-up questions submitted by Senator Tillis..............   812
        Senator Vitter...............................................   816
        Follow-up questions submitted by Senator Vitter..............   835
        Senator Whitehouse...........................................   839
    Responses of Prof. Nicholas Quinn Rosenkranz to questions
      submitted by Senator Grassley..................................   840
    Responses of Prof. Jonathan Turley to questions submitted by
      Senator Grassley...............................................   848

     LETTERS RECEIVED REGARDING THE NOMINATION OF HON. LORETTA E. LYNCH TO
                    BE ATTORNEY GENERAL OF THE UNITED STATES

    Alliance for Justice, Washington, DC, January 27, 2015...........   930
    Alliance of North Carolina Black Elected Officials, The, Shelby,
      North Carolina, February 23, 2015..............................   966
    Alpert, Stanley N., former Assistant U.S. Attorney, et al.,
      Eastern District of New York, December 9, 2014.................   864
    Anello, Robert J., former President, et al., Federal Bar Council,
      White Plains, New York, January 14, 2015.......................   885
    Association of Prosecuting Attorneys (APA), Washington, DC,
      January 27, 2015...............................................   943
    Barlow, David B., former U.S. Attorney, District of Utah, et al.,
      January 22, 2015...............................................   909
    Biehl, Richard, Chief, Dayton Police Department, Dayton, Ohio, et
      al., December 9, 2014..........................................   855
    Bratton, William J., Police Commissioner, New York City Police
      Department, New York, January 26, 20 15........................   926
    Cardozo, Michael A., former President, et al., New York City Bar
      Association, New York, New York, January 22, 2015..............   907
    Center for Judicial Accountability, Inc. (CJA), White Plains, New
      York, December 17, 2014........................................   980
    Congressional Black Caucus, The, Hon. G.K. Butterfield, a
      Representative in Congress from the State of North Carolina,
      and Chairman, Washington, DC, January 14, 2015.................   884
    County of Durham, Board of Commissioners, Durham, North Carolina,
      December 15, 2014..............................................   877
    Federal Bureau of Investigation Agents Association (FBIAA),
      Arlington,
      Virginia, January 27, 2015.....................................   947
    Federal Law Enforcement Officers Association (FLEOA), Jon Adler,
      National President, Washington, DC, January 22, 2015...........   906
    Field, Arthur Norman, former President, et al., New York County
      Lawyers' Association (NYCLA), New York, New York, January 23,
      2015...........................................................   915
    Freeh, Hon. Louis J. Freeh, former Judge and former Director,
      Federal
      Bureau of Investigation, January 20, 2015......................   904
    Gilbride, John P., former Special Agent, Drug Enforcement
      Administration, Middletown, New Jersey, January 26, 2015.......   917
    Gorelick, Hon. Jamie S., former Deputy Attorney General, U.S.
      Department of Justice, Washington, DC, January 26,2015.........   948
    Guccione, Joseph R., former U.S. Marshal, Southern District of
      New York, Wilmington, Delaware, January 23, 2015...............   914
    Human Rights Campaign (HRC), Washington, DC, February 11, 2015...   967
    Immelt, Stephen J., Chief Executive Officer, et al., Hogan
      Lovells US LLP, New York, New York, January 15, 2015...........   902
    International Association of Chiefs of Police (IACP), Alexandria,
      Virginia, February 25, 2015....................................   969
    Landrith, George, Frontiers of Freedom, et al., January 21, 2015.   970
    Leadership Conference on Civil and Human Rights, The, Washington,
      DC, January 26, 2015...........................................   919
    Legal Momentum: The Women's Legal Defense and Education Fund, New
      York, New York, February 25, 2015..............................   972
    Lewis, Hon. John, a Representative in Congress from the State of
      Georgia, January 27, 2015......................................   937
    Maloney, Andrew J., former U.S. Attorney, Eastern District of New
      York, et al., December 3, 2014.................................   862
    Major Cities Chiefs Association, Tom Manger, President and Chief
      of Police, Montgomery County Police Department, Maryland,
      January 8, 2015................................................   882
    Moss, Sara, Executive Vice President and General Counsel, The
      Estee Lauder Companies Inc., New York, New York, January 14,
      2015...........................................................   965
    National Association for the Advancement of Colored People Legal
      Defense and Educational Fund, Inc. (LDF), New York, New York,
      and Washington, DC, January 27, 2015...........................   932
    National Association of Social Workers (NASW), Washington, DC,
      January 27, 2015...............................................   976

    National Association of Women Lawyers (NAWL), Chicago, Illinois,
      February 3, 2015...............................................   957
    National Bar Association (NBA), Washington, DC, January 29, 2015.   952
    National Black Prosecutors Association (NBPA), Chicago, Illinois,
      January 22, 2015...............................................   961
    National Conference of Women's Bar Associations (NCWBA),
      Portland,
      Oregon, January 28, 2015.......................................   935
    National Disability Rights Network (NDRN), Washington, DC, March
      3, 2015........................................................   978
    National District Attorneys Association (NDAA), Alexandria,
      Virginia,
      November 9, 2014...............................................   860
    National Immigration Law Center (NILC), Los Angeles, California,
      February 3, 2015...............................................   959
    National Organization of Black Law Enforcement Executives
      (NOBLE), Alexandria, Virginia, December 27, 2014...............   881
    National Task Force to End Sexual and Domestic Violence (NTF),
      Seattle, Washington, December 9, 2014..........................   857
    National Urban League (NUL), Marc H. Morial, President and Chief
      Executive Officer, New York, New York, January 26, 2015........   922
    National Women's Law Center, Washington, DC, January 26, 2015....   924
    O'Connor, Kevin J., United Technologies Corporation, Hartford,
      Connecticut, January 22, 2015..................................   911
    Parr, Brian G., Chief Security Officer, Citigroup Inc., New York,
      New York, January 25, 2015.....................................   954
    People For the American Way, Washington, DC, January 26, 2015....   928
    Rice, Kathleen M., District Attorney, Mineola, New York, November
      17, 2014.......................................................   861
    Schneiderman, Hon. Eric T., Attorney General for the State of New
      York, New York, New York, March 13, 2015.......................   984
    Schwartz, Bart M., Chairman, Guidepost Solutions LLC, New York,
      New York, January 26, 2015.....................................   955
    Strauss, Audrey, Executive Vice President and Chief Legal
      Officer, Alcoa Inc., January 13, 2015..........................   883
    Thompson, Larry D., former Deputy Attorney General, U.S.
      Department of Justice, Washington, DC, January 27,2015.........   950
    Tursi, Elizabeth Anne ``Betiayn,'' Women in Law Empowerment
      Forum, January 22, 2015........................................   913
    Walsh, Peter H., Senior Deputy General Counsel and Chief of
      Litigation, UnitedHealth Group Incorporated, Minnetonka,
      Minnesota, January 23, 2015....................................   944
    Wilson, Benjamin F., Managing Principal, Beveridge and Diamond,
      P.C., et al., January 28, 2015.................................   940
    Women in Federal Law Enforcement (WIFLE), Arlington, Virginia,
      January 27, 2015...............................................   858
    Women's Bar Association of the District of Columbia (WBA),
      Washington, DC, January 28, 2015...............................   945
    YWCA USA, Washington, DC, January 27, 2015.......................   938

                    MISCELLANEOUS SUBMISSIONS FOR THE RECORD

    Beck, Charlie, Chief of Police, City of Los Angeles Police
      Department, Los Angeles, California, statement.................   985
    ``Breakdown of the Subsequent Convictions Associated With
      Criminal Aliens Placed in a Non-Custodial Setting in Fiscal
      Year 2013,'' table.............................................   988
    Frum, David, Senior Editor, The Atlantic, ``Reagan and Bush Offer
      No Precedent for Obama's Amnesty Order,'' November 18, 2014,
      article........................................................  1026
    Marek, Stan, President and Chief Executive Officer, Marek Family
      of Companies, Houston, Texas, statement........................  1033
    Martin County, Board of Commissioners, Williamston, North
      Carolina, January 7, 2015, resolution..........................  1035
    United States Department of Justice, Office of the Inspector
      General, Abbreviated Report of Investigation, Final, January
      23, 2015, report--redacted.....................................  1029

                     ADDITIONAL SUBMISSIONS FOR THE RECORD

    Submissions for the record not printed due to voluminous nature,
      previously printed by an agency of the Federal Government, or
      other criteria
      determined by the Committee, list..............................  1036

    Attorney General's Advisory Committee, December 19, 2014, working
      draft agenda--redacted,
      Part 1:
        https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
          2014)_Part1.pdf............................................  1036
      Part 2:
        https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
          2014)_Part2.pdf............................................  1036
      Part 3:
        https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
          2014)_Part3.pdf............................................  1036
      Part 4:
        https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
          2014)_Part4.pdf............................................  1036
      Part 5:
        https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
          2014)_Part5.pdf............................................  1036

    Legal and Administrative Management Evaluation, United States
      Attorney's Office, Eastern District of New York, January 23,
      2015, draft report--redacted:
         https://www.judiciary.senate.gov/imo/media/doc/EARS--
          Redacted
          %20FINAL.pdf...............................................  1036

                          CONFIRMATION HEARING ON THE
                      NOMINATION OF HON. LORETTA E. LYNCH
                             TO BE ATTORNEY GENERAL
                              OF THE UNITED STATES

                                  ----------

                          WEDNESDAY, JANUARY 28, 2015,

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:03 a.m., in
    Room SH-216, Hart Senate Office Building, Hon. Charles E.
    Grassley, Chairman of the Committee, presiding.
        Present: Senators Grassley, Hatch, Sessions, Graham,
    Cornyn, Lee, Cruz, Flake, Vitter, Perdue, Tillis, Leahy,
    Feinstein, Schumer, Durbin, Whitehouse, Klobuchar, Franken,
    Coons, and Blumenthal.

             OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
                 A U.S. SENATOR FROM THE STATE OF IOWA

        Chairman Grassley. Good morning. I welcome everyone to this
    very, very important hearing. Before we start, I would like to
    state a few things. These are some ground rules, pretty much
    the same as what former Chairman and my friend Senator Leahy
    and others have stated in the past.
        I want everyone to be able to watch the hearing without
    obstruction. If people stand up and block the view of those
    behind them or speak out of turn, it is not fair or considerate
    to others. So officers would then remove those individuals. I
    know that there is a lot to protest regarding this
    administration's policies, but this is not the time or place to
    do it.
        Before I turn to our opening statements, I want to go over
    a couple of housekeeping items and explain how we are going to
    proceed. Senator Leahy and I will give our opening statements.
    Then I will call on Senators Schumer and Gillibrand to
    introduce the nominee. Following Ms. Lynch's opening remarks,
    we will begin with the first round of questions in which each
    Senator will have 10 minutes. After the first round, we are
    going to do 8-minute rounds of questions. I want everyone to
    know that I am prepared to stay here as long as Members have
    questions that they would like to ask.
        I think this is the most fair way to proceed both to the
    responsibilities of the Senate and Senators and, most
    importantly, to the nominee who has to sit here through all of
    this and answer our questions. And I think we all know that
    this is a very important position in the Cabinet, and we should
    do what we can to move it along within our rules. We have a lot
    of ground that we want to cover in live questioning.
        One final note on scheduling. I would like to take a short
    break of maybe 45 minutes sometime around 12:30 or 1 o'clock,
    and I know that we have a series of stacked votes this
    afternoon in regard to, I think, 18 amendments we have to vote
    on. The plan right now is to keep this hearing going even
    though it may be a very chaotic way to do things and maybe not
    as respectful to the position of Attorney General as it ought
    to be, but I do not know how else to get through the process to
    get every question asked that wants to be asked. So I would ask
    that all of my colleagues remain very flexible and keep it
    going, and that means some accommodation by Members on my side
    of the aisle to chair when I cannot be here and am over there
    voting.
        With that, I am going to turn to my opening statement, then
    immediately go to Senator Leahy.
        Ms. Lynch, I have had a chance to talk to you privately on
    two occasions. I welcome you to the Senate Judiciary Committee.
    It is a very big day for you and especially for family and
    friends that are proud of you. I congratulate you on your
    nomination.
        You have already been confirmed by the Senate as U.S.
    Attorney, but the process involved to serve as the 83rd
    Attorney General is a bit more rigorous. For one thing, U.S.
    Attorneys do not even have hearings, let alone one like this.
        So my hope is that we discuss some of the most important
    matters facing our Nation, and in the process of doing that,
    then we will get to know you a bit better. The fact of the
    matter is this nomination comes at a pivotal time for the
    Department of Justice and for our country. And as I discuss
    some of those things, those are probably things you have had
    nothing to do with. But you have an opportunity to make some
    changes.
        The next Attorney General will face some very difficult
    challenges, from combating cybercrime, to protecting our
    children from exploitation, to helping fight the war on terror.
        But I am not just concerned about the tough decisions that
    come with the office. There are challenges facing the
    Department of Justice that go to the heart of our system of
    Government.
        How about restoring faith in the bedrock principles like
    respect for the rule of law and the fair and evenhanded
    application of those laws?
        How about restoring respect for the co-equal branches of
    Government?
        How about taking care that the law is faithfully executed
    and not rewriting it?
        How about the Department of Justice honoring, once again,
    its longstanding duty to vigorously defend our Nation's laws--
    even when political appointees disagree with the policy?
        Then there is the Office of Legal Counsel. I am interested
    in returning that office to its rightful place as the impartial
    ``crown jewel'' of the Justice Department. Its opinions should
    be firmly rooted in the Constitution's text, neutral
    interpretation of statutes, and sound judicial precedent. They
    should not be transparently self-serving attempts to justify
    whatever the President or an Attorney General wants to do for
    political reasons.
        And let me say it right here: The Office of Legal Counsel
    should be sharing with the American public the opinions it is
    providing to the President, especially when they supposedly
    sanction the unprecedented authority he claims to possess. And
    I am going to work to see that it does. The public's business
    ought to be public.
        Transparency, I believe, and, in fact, does bring
    accountability.
        These ideals and principles are foundational to the
    Republic. But ideals and principles are not simply academic,
    and they do not exist in a vacuum.
        Over the last few years, public confidence in the
    Department's ability to do its job without regard to politics
    has been shaken, with good reason.
        It is not just Republicans who see the problem or who
    recognize it has real-world effects on our own fellow
    Americans. The Department's own Inspector General listed as one
    of its top management challenges ``Restoring Confidence in the
    Integrity, Fairness, and Accountability of the Department.''
        The IG cited several examples, including the Department
    falsely denying basic facts in the Fast and Furious
    controversy. The Inspector General concluded this ``resulted in
    an erosion of trust in the Department.'' In that fiasco, our
    Government knowingly allowed firearms to fall into the hands of
    international gun traffickers, and it led to the death of
    Border Patrol Agent Brian Terry.
        And then, after Congress called on the leadership of the
    Department to account for this foolish operation, what did they
    do? Did they apologize to the family and rush to uncover the
    truth?
        Quite the opposite. They denied, spun, and hid the facts
    from Congress and the American people. They bullied and
    intimidated whistleblowers, members of the press, and anyone
    who had the audacity to investigate and to uncover the truth.
        The Department has also failed to hold another Government
    agency accountable: the Internal Revenue Service. We watched
    with dismay as that powerful agency was weaponized and turned
    against individual citizens. And why? What exactly did these
    fellow citizens do to make their Government target them? They
    had the courage to get engaged and speak out in defense of
    faith, freedom, and our Constitution. And for that, they then
    were targeted by the IRS.
        What was the Justice Department's reaction to the targeting
    of citizens based on political beliefs? Well, they appointed a
    campaign donor to lead an investigation that has not gone
    anywhere and called it then a day. That simply is not good
    enough.
        Meanwhile, the Department's top litigator, the Nation's
    Solicitor General, is arguing in case after case for
    breathtaking expansions of Federal power.
        I would like to have you consider this: Had the Department
    prevailed in just some of the arguments that it pressed before
    the Supreme Court in the last several years, there would be
    essentially no limit on what the Federal Government could order
    States to do as a condition of receiving Federal money.
        Another case, the Environmental Protection Agency could
    fine a homeowner $75,000 a day for not complying with an order
    and then turn around and deny that homeowner any right to
    challenge the order or those fines in court when the order is
    issued.
        The Federal Government could review decisions by religious
    organizations regarding who can serve as a minister.
        The Federal Government could ban books that expressly
    advocate for the election or defeat of political candidates.
    And the Fourth Amendment would not have anything to say about
    the police attaching a GPS device to a citizen's car without a
    warrant and constantly tracking their every movement for months
    and years.
        These positions are not mainstream, in my judgment. At the
    end of the day, the common thread that binds all these
    challenges together, in my judgment, is a Department of Justice
    that is very deeply politicized. But that is what happens when
    an Attorney General of the United States views himself--and
    these are his own words--as the President's ``wingman.''
        I do not expect Ms. Lynch and I will agree on every issue.
    But I for one need to be persuaded that she will be an
    independent Attorney General. And I have no reason to believe
    at this point she will not be. The Attorney General's job is to
    represent the American people, not just the President and not
    just the executive branch.
        So today we will hear from Ms. Lynch. As far as I know, Ms.
    Lynch has nothing to do with the Department of Justice's
    problems that I just outlined, but as a new Attorney General,
    she can fix them.
        Tomorrow we will hear from a second panel of witnesses,
    many of whom will speak directly to the many challenges facing
    the Justice Department.
        As I listen to both panels, I will be considering whether
    Ms. Lynch has what it takes to fix the Obama Justice
    Department.
        We need to get back then to first principles, and that
    starts with depoliticizing the Department of Justice, because
    the American people deserve better. So I hope Ms. Lynch can fix
    these flaws.
        Senator Leahy.

              OPENING STATEMENT OF HON. PATRICK J. LEAHY,
                A U.S. SENATOR FROM THE STATE OF VERMONT

        Senator Leahy. Thank you. I will not speak as long because
    I just want to focus on Loretta Lynch and not on all the
    problems that some may see in this country.
        It is a pleasure to welcome her to this Committee. She is
    smart, she is tough, she is hard-working and independent. She
    is a prosecutor's prosecutor, and her qualifications are beyond
    reproach. She has been unanimously confirmed by the Senate
    twice before to serve as the top Federal prosecutor based in
    Brooklyn, New York, and I hope we have another swift
    confirmation for Ms. Lynch.
        As U.S. Attorney for the Eastern District of New York, she
    has brought terrorists and cybercriminals to justice. She has
    obtained convictions against corrupt public officials from both
    political parties. She has fought tirelessly against violent
    crime and financial fraud. She has remained determined to
    protect the rights of victims.
        Ms. Lynch has worked hard to improve the relationships
    between law enforcement and the communities they serve, and
    that is probably one of the reasons why her nomination enjoys
    strong support from both. She has prosecuted those who have
    committed crimes against police officers, as well as police
    officers who have committed crimes. Her record shows that, as
    Attorney General, Ms. Lynch will effectively, fairly, and
    independently enforce the law.
        I hope we all remember that she is the nominee for Attorney
    General, and that is why I am focusing on her. She was born in
    North Carolina, the daughter of a Baptist preacher and a school
    librarian, and we are honored to have members of her family
    here with us today. And I know you will be introducing them
    later.
        She grew up hearing her family speak about living in the
    Jim Crow South, but she never lost faith that the way to obtain
    justice is through our legal system. And her nomination is
    historic. When she is confirmed as the 83rd Attorney General of
    the United States, she will be the first African-American woman
    to lead the Department of Justice.
        Really, I cannot think of anyone more deserving of that
    honor.
        She is going to lead a Justice Department that faces
    complex challenges. Nearly one-third of its budget goes to the
    Bureau of Prisons, and that drains vital resources from nearly
    all other public safety priorities. Think of that. A third of
    the budget goes to prisons.
        A significant factor leading to this budget imbalance is
    the unnecessary creation of more and more mandatory minimum
    sentences. Passing new mandatory minimum laws has become a
    convenient way for lawmakers to claim that they are tough on
    crime--even when there is no evidence that these sentences keep
    us safer. And it is one of the reasons why we have the largest
    prison population in the world. It is why I oppose mandatory
    minimums. I hope we can find a way to face this mass
    incarceration problem.
        And the Justice Department needs strong leadership to keep
    up with the rapid development of technology. We must stay ahead
    of the curve to prevent and fight threats to cybersecurity and
    data privacy. Think what it would have been like the last few
    days in the Northeast if a cyberterrorist could have closed
    down all of our electrical grids.
        The growing threat of cybercrime is very real, but so is
    the specter of unchecked Government intrusion into our private
    lives, particularly dragnet surveillance programs directed at
    American citizens. The intelligence community faces a critical
    deadline this June when three sections of the Foreign
    Intelligence Surveillance Act are set to expire.
        I believe we have to protect our national security, but we
    also have to protect our civil liberties which make us unique
    as a country. So we have to reform our Nation's surveillance
    laws so we can realize both goals.
        The next Attorney General is going to play an essential
    role in protecting all Americans. All Americans. The
    President's selection for Attorney General, no matter who the
    President is, deserves to be considered swiftly, fairly, and on
    the nominee's own record. I believe Americans realize that a
    role this important cannot be used as just one more sound bite,
    a Washington political football. I am confident that if we stay
    focused on Ms. Lynch's impeccable qualifications and fierce
    independence, she is going to be confirmed quickly by the
    Senate. She deserves a fair, thoughtful, and respectful
    confirmation process. And the American people deserve an
    Attorney General like Ms. Lynch. So I thank you for your years
    of public service. I look forward to your testimony.
        [The prepared statement of Senator Leahy appears as a
    submission for the record.]
        Chairman Grassley. For those of you who are new to a
    hearing, it is tradition that Senators from the home State
    introduce nominees from their State. So I am now going to call
    on Senator Schumer and then Senator Gillibrand, the Senators
    from New York, to do that. And since we are under such a tight
    schedule, if I could ask you to keep it to 5 minutes, it would
    be very nice. Thank you.

            PRESENTATION OF LORETTA E. LYNCH, NOMINEE TO BE
               ATTORNEY GENERAL OF THE UNITED STATES, BY
     HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW
                                  YORK

        Senator Schumer. Thank you, Mr. Chairman. I want to thank
    you and Ranking Member Leahy and the Members of the Committee.
    It is my great privilege to introduce Loretta Lynch, a proud
    New Yorker and the nominee to be the next Attorney General of
    the United States.
        Born in North Carolina, her father was a fourth-generation
    Baptist minister, a man who grew up in the segregated South,
    and her mother picked cotton when she was a girl so her
    daughter would never have to.
        Well, their daughter grew up to be one of the keenest legal
    minds our country has to offer, someone who has excelled at
    every stage of her education and her career, while cultivating
    a reputation as someone who is level-headed, fair, judicious,
    and eminently likable. If there is an American dream story, Ms.
    Lynch is it. And adding to the American dream story, Ms.
    Lynch's late brother Lorenzo was a Navy SEAL.
        Still, despite her intellectual and career achievements,
    Ms. Lynch has always been a nose-to-the-grindstone type, rarely
    seeking acclaim, only a job well done. She has earned a
    reputation for keeping her head down and avoiding the
    spotlight. Just like me.
        [Laughter.]
        Senator Schumer. At just over 5 foot and with her
    consistent understated approach to the public spotlight, some
    might underestimate Ms. Lynch. But as hundreds of criminals
    have learned the hard way, looks can be deceiving, and Ms.
    Lynch packs a powerful punch.
        When you look at the breadth and depth of the cases she has
    handled, it is clear Loretta Lynch is law enforcement's
    renaissance woman. One I would mention: the Abner Louima case,
    where she convicted police officers who horribly abused a
    Haitian immigrant.
        As we have seen, these types of cases can create great
    tension between the police and the community. But despite the
    high-running emotions that accompanied this notorious case, Ms.
    Lynch was praised by lawyers on both sides, as well as
    community leaders and police officials, for her judicious,
    balanced, and careful approach.
        Mr. Chairman, Members of this Committee, in this age of
    global terrorism, the AG's role in national security has never
    been more important. It makes apparent that the confirmation of
    a new Attorney General cannot and should not be delayed any
    longer.
        Today we have already heard and will hear a lot more about
    issues completely unrelated to Ms. Lynch's experience and her
    qualifications. If anything, that just goes to show how
    qualified she is. No one can assail Loretta Lynch, and no one
    has, who she is, what she has done, and how good an Attorney
    General she would be. So instead some are trying to drag
    extraneous issues--Executive orders on immigration, the IRS--
    into the fray to challenge her nomination because they cannot
    find anything in her record to point to.
        Let me be clear: Attempts to politicize this nomination, to
    turn this exceptional nominee into a political point-scoring
    exercise, are a disservice to the qualified candidate we have
    before us today.
        I originally recommended Loretta Lynch for the position of
    U.S. Attorney in 1999 because I thought she was excellent. Sure
    enough, she was. When President Bush took office, she went to
    the private sector to earn some money.
        But when I had the opportunity to recommend a candidate to
    President Obama, I was certain I wanted Ms. Lynch to serve
    again. So I called her on a Friday afternoon. She was happy
    with her life in the law firm. But I was confident that, with
    the weekend to think it over, she would be drawn to answer the
    call to public service. And sure enough, her commitment to
    public service was so strong that she called me back on Monday
    to say yes.
        She passed unanimously out of the Senate twice already.
        Wouldn't it be nice if we could pass her unanimously out of
    the Senate a third time? Based on her record, we should. Mr.
    President, if we cannot confirm Loretta Lynch, then I do not
    believe we can confirm anyone. And I would like to remind my
    colleagues that the President's immigration policies are not
    seeking confirmation today. Loretta Lynch is.
        When we move to vote, hopefully sooner rather than later,
    you will not be voting for or against the President's policies.
    You will be voting on this eminently qualified law enforcement
    professional, first-rate legal mind, and someone who is
    committed in her bones to the equal application of justice for
    all people.
        Thank you, Mr. Chairman.
        Chairman Grassley. Thank you, Senator Schumer.
        Senator Gillibrand.

            PRESENTATION OF LORETTA E. LYNCH, NOMINEE TO BE
               ATTORNEY GENERAL OF THE UNITED STATES, BY
     HON. KIRSTEN E. GILLIBRAND, A U.S. SENATOR FROM THE STATE OF
                                NEW YORK

        Senator Gillibrand. Thank you, Mr. Chairman and Ranking
    Member Leahy. I am honored to be here today with Senator
    Schumer to introduce United States Attorney for the Eastern
    District of New York, Loretta Lynch, as President Obama's
    nominee to serve as the next Attorney General of the United
    States.
        To serve as United States Attorney General requires deep
    experience in the field of law. It also requires a brilliant
    intellect, and it requires a steady moral compass.
        I met with Ms. Lynch 2 months ago, and I can tell you she
    meets all of those criteria. She is strong, tough, independent,
    and fearless, and as one of our country's most accomplished and
    distinguished women serving in law enforcement, I urge my
    colleagues to support her nomination.
        She is an outstanding candidate for this job. Ms. Lynch
    began her service as the U.S. Attorney for the Eastern District
    of New York in 1990 where she rose quickly to serve as Chief of
    the Long Island Office and then Deputy Chief of General Crimes,
    and Chief of Intake and Arraignments. For 15 years, she has
    been a prosecutor in the U.S. Attorney's Office for the Eastern
    District of New York, and since 2010, she has served admirably
    as the United States Attorney for the Eastern District of New
    York. In that position, she has demonstrated a superior sense
    of judgment and remarkable legal expertise.
        Ms. Lynch has dealt with an impressive array of cases on
    subjects ranging from civil rights to organized crime to
    terrorism. These are each issues that our new Attorney General
    will have to engage with constantly from Day 1 of her tenure.
        Ms. Lynch's experience as a Federal prosecutor in New York
    will undoubtedly serve her exceptionally well in Washington.
    She is extraordinarily well qualified, and I believe she
    deserves a quick confirmation process.
        Thank you, Mr. Chairman.
        Chairman Grassley. Thank you, Senator Gillibrand.
        [Pause.]
        Chairman Grassley. Before you seat yourself, would you take
    an oath, please? Would you raise your hand? And I will give the
    oath. Do you affirm that the testimony you are about to give
    before the Committee will be the truth, the whole truth, and
    nothing but the truth, so help you God?
        Ms. Lynch. I do.
        Chairman Grassley. Thank you.
        The Committee welcomes you, and I know that it is an honor
    for all of us to have you before us. But it is also an honor
    for you to be selected by the President, and it is quite an
    honor for your family. So I would ask, before you make your
    statement, if you would like to introduce anybody to the
    Committee and speak about them any way you want to.
        And then if there are people that are not introduced by you
    that you would like to have their name in the record and you
    would submit their names, I would be glad to include that in
    the record.
        So would you proceed as you choose?
        Senator Leahy. Turn your microphone on.
        Chairman Grassley. Yes, I think the microphone is not
    automatic.

              STATEMENT OF HON. LORETTA E. LYNCH, NOMINEE
              TO BE ATTORNEY GENERAL OF THE UNITED STATES

        Ms. Lynch. Thank you, Senator. Let me introduce for the
    record: I am delighted to welcome numerous family and friends
    here with me today.
        I would like to introduce, first and foremost, my father,
    the source of my inspiration in so many ways. He is to my
    immediate left, the Reverend Lorenzo Lynch.
        Immediately to his left is my husband, Stephen Hargrove,
    who has supported me in all of my endeavors, no matter how poor
    they make us.
        [Laughter.]
        Ms. Lynch. Immediately to his left is my younger brother,
    the Reverend Leonzo Lynch, who is the fifth generation of
    ministers in a direct line in my family; and my sister-in-law,
    NiCole Lynch.
        I am also here with several other family members and
    friends whom I would love to introduce, but I am informed that
    you have a schedule for the afternoon, so I will keep to that.
    But let me say to all of them how tremendously gratified I am
    for their support, not just today but over the years.
        Chairman Grassley, Senator Leahy, distinguished Members of
    this Committee, I am honored to appear before you in this
    historic chamber, among so many dedicated public servants.
        I want to thank you for your time this morning, and I also
    want to thank President Obama for the trust he has placed in me
    by nominating me to serve as Attorney General of the United
    States.
        It is a particular privilege to be joined here today by
    members of my family that I have introduced, as well as the
    other numerous family and friends who have come to support me
    and for whose travel and service I am so appreciative.
        Mr. Chairman, one of the privileges and, in fact, one of my
    favorite things in my position as United States Attorney for
    the Eastern District of New York is welcoming new attorneys
    into my office and administering to them the oath of office. It
    is a transformative moment in the life of a young prosecutor
    and one that I actually remember well.
        And as they stand before me, prepared to pledge their honor
    and their integrity, I remind them that they are making their
    oath not to me, not to the office, not even to the Attorney
    General, but to our Constitution, the fundamental foundation
    for all that we do. It is to that document and the ideals
    embodied therein that I have devoted my professional life. And,
    Senators, if confirmed as Attorney General, I pledge to you
    today and to the American people that the Constitution, the
    bedrock of our system of justice, will be my lodestar as I
    exercise the power and the responsibility of that position.
        I owe so much to those who have worked to make the promise
    of that document real for all Americans, beginning with my own
    family. All of them--and so many others--have supported me on
    the path that has brought me to this moment, not only through
    their unwavering love and support, which is so beautifully on
    display today, but through their examples and the values that
    have shaped my upbringing.
        My mother, Lorine, who was unable to travel here today, is
    a retired English teacher and librarian for whom education was
    the key to a better life. She still recalls people in her rural
    North Carolina community pressing a dime or a quarter into her
    hands to help support her college education. As a young woman,
    she refused to use segregated restrooms because they did not
    represent the America in which she believed. She instilled in
    me an abiding love of literature and learning and taught me the
    value of hard work and sacrifice.
        My father, Lorenzo, who is here with me today, is a fourth-
    generation Baptist preacher who in the early 1960s opened his
    Greensboro church to those planning sit-ins and marches,
    standing with them while carrying me on his shoulders. He has
    always matched his principles with his actions--encouraging me
    to think for myself, but reminding me that we all gain the most
    when we act in service to others.
        It was the values my parents instilled in me that led me to
    the Eastern District of New York, and from my parents I gained
    the tenacity and resolve to take on violent criminals, to
    confront political corruption, and to disrupt organized crime.
    They also gave me the insight and the compassion to sit with
    the victims of crime and share their loss. Their values have
    sustained me as I have twice had the privilege--indeed, the
    honor--of serving as United States Attorney, leading an
    exceptional office staffed by outstanding public servants, and
    their values guide and motivate me even today.
        Senators, should I be confirmed as Attorney General, my
    highest priorities will continue to be to ensure the safety of
    all of our citizens, to protect the most vulnerable among us
    from crime and abuse, and to strengthen the vital relationships
    between America's brave law enforcement officers and the
    communities they are entrusted to serve.
        In a world of complex and evolving threats, protecting the
    American people from terrorism must remain the primary mission
    of today's Department of Justice.
        If confirmed, I will work with colleagues across the
    executive branch to use every available tool to continue
    disrupting the catastrophic attacks planned against our
    homeland and to bring terrorists to justice.
        I will draw upon my extensive experience in the Eastern
    District of New York, which has tried more terrorism cases
    since 9/11 than any other office. We have investigated and
    prosecuted terrorist individuals and groups that threaten our
    Nation and its people, including those who have plotted to
    attack New York City's subway system, John F. Kennedy Airport,
    the Federal Reserve Bank of New York, and U.S. troops stationed
    abroad, as well as those who have provided material support to
    foreign terrorist organizations.
        And I pledge to discharge my duties always mindful of the
    need to protect not just American citizens, but American
    values.
        If confirmed, I intend to expand and enhance our
    capabilities in order to effectively prevent ever-evolving
    attacks in cyberspace, to expose those wrongdoers and bring
    those perpetrators to justice as well.
        In my current position I am proud to lead an office that
    has significant experience prosecuting complex, international
    cybercrime including high-tech intrusions at key financial and
    public sector institutions. If I am confirmed, I will continue
    to use the combined skills and experience of our law
    enforcement partners, the Department's criminal and national
    security divisions, and the United State's Attorney community
    to defeat and hold accountable those who would imperil the
    safety and security of our citizens through cybercrime. I will
    also do everything I can to ensure that we are safeguarding the
    most vulnerable among us.
        During my tenure as U.S. Attorney, the Eastern District of
    New York has led the prosecution against financial fraudsters
    who have callously targeted hard-working Americans--including
    the deaf and elderly--and stolen not just their trust, but
    their hard-earned savings. We have taken action against abusers
    in over 100 child exploitation and child pornography cases and
    we have prosecuted brutal international human trafficking rings
    that have sold--sold victims as young as 14 and 15 into sexual
    slavery.
        If confirmed as Attorney General, I will continue to build
    upon the Department's record of vigorously prosecuting those
    who prey on those most in need of our protection, and I will
    continue to provide strong and effective assistance to
    survivors, who we must both support and empower.
        Senators, throughout my career as a prosecutor, it has been
    my signal honor to work hand-in-hand with dedicated law
    enforcement officers and agents who risk their lives every day
    in the protection of the communities we all serve. I have
    served with them. I have learned from them. I am a better
    prosecutor because of them.
        Few things have pained me more than the recent reports of
    tension and division between law enforcement and the
    communities we serve.
        If confirmed as Attorney General, one of my key priorities
    would be to work to strengthen the vital relationships between
    our courageous law enforcement personnel and all of the
    communities we serve.
        In my career, I have seen this relationship flourish.
        I have seen law enforcement forge unbreakable bonds with
    community residents and I have seen violence-ravaged
    communities come together to honor officers who have risked all
    to protect them. And as Attorney General, I will draw all
    voices into this important discussion.
        In that same spirit, I look forward to fostering a new and
    improved relationship with this Committee, the United States
    Senate, and the entire United States Congress--a relationship
    based on mutual respect and constitutional balance. Ultimately,
    I know we all share the same goal and commitment to protect and
    to serve the American people.
        Now, I recognize that we face many challenges in the years
    ahead, but I have seen in my own life and in my own family how
    dedicated men and women can answer the call to achieve great
    things for themselves, for their country, and for generations
    to come.
        My father, that young minister who carried me on his
    shoulders, has answered that call, as has my mother, that
    courageous young teacher who refused to let Jim Crow define
    her. Standing with them are my uncles and cousins who served in
    Vietnam, one of whom is here to support me today, and my older
    brother, a Navy SEAL, all of whom answered that call with their
    service to our country.
        Senators, as I come before you today in this historic
    chamber, I still stand on my father's shoulders, as well as on
    the shoulders of all of those who have gone before me and who
    dreamed of making the promise of America a reality for all, and
    worked to achieve that goal.
        I believe in the promise of America, because I have lived
    the promise of America. And if confirmed to be Attorney General
    of the United States, I pledge to all of you and the American
    people that I will fulfill my responsibilities with integrity
    and independence. I will never forget that I serve the American
    people from all walks of life who continue to make our Nation
    great, as well as the legacy of all of those whose sacrifices
    have made us free.
        And I will always strive to uphold the trust that has been
    placed in me to protect and defend our Constitution, to
    safeguard our people, and to stand as the leader and public
    servant that they deserve.
        Thank you all once again for your time and your
    consideration. I greatly appreciate this opportunity to speak
    with you today. I look forward to your questions and to all
    that we may accomplish in the days ahead together in the spirit
    of cooperation, shared responsibility and justice.
        Thank you for your time today.
        Chairman Grassley. And thank you, Ms. Lynch, for that
    statement.
        Before my 10 minutes starts for the first round, I would
    like to talk to my colleagues just a minute, because of the 18
    votes that are coming up this afternoon and because of the
    chaotic situation, and the more important thing is getting this
    hearing over in one sitting--in one day, even if it goes into
    the evening.
        I hope my colleagues will be cognizant of what we normally
    do. Between Senator Leahy and I, we are fairly liberal on
    letting people go over, and whether we have five-, seven- or
    10-minute rounds in any hearing, my practice is generally if
    you have got one second left, you can ask a question. But this
    time, I would prefer that you kind of stick to the 10 minutes.
    And I am not very good at gaveling people down, so take care of
    my timidity, will you please?
        [Laughter.]
        Chairman Grassley. Now again, before the first 10 minutes
    starts, I would like to make something clear, just for myself--
    I cannot speak for my colleagues--and it takes on two things.
    One, what you said about you wanted to improve relationships
    with the Committee and with Congress. I--we welcome that very
    much, and that will be very, very helpful, particularly in
    regard to our responsibilities of oversight.
        Secondly, taking off on something Senator Schumer said, and
    just speaking for myself, if I use this subject or that subject
    or another as a basis of maybe questioning what the President
    or an Attorney General's done, I want it clear that that is not
    the issue for me now. The issue is whether or not the
    Constitution or the laws have been violated or whether the
    Justice Department has acted in an appropriate way.
        So now I would start with my questions.
        On November the 20th last year, President Obama announced
    that he would defer deportation of millions of individuals in
    the country undocumented. Not only is this action contrary to
    our laws, it is a dangerous abuse of Executive authority.
        If you are confirmed as the next Attorney General, before
    you take office, you will take an oath. You will raise your
    right hand and swear ``to support and defend the Constitution
    of the United States and to bear true faith and allegiance to
    the same.'' Your duty as Attorney General is not to defend the
    President and his policies; your duty is your oath, to defend
    the Constitution.
        So my first question, with that oath in mind, I ask you, do
    you believe that the President has the legal authority to
    unilaterally defer deportations in a blanket manner for
    millions of individuals in the country illegally and grant them
    permits and other benefits, regardless of what the U.S.
    Constitution or--immigrations laws say?
        Ms. Lynch. Thank you for the question, Senator, and you
    raise a very important issue of how we manage the issue of
    undocumented immigrants here in our country, while still
    welcoming those who bring such great value to our shores, to
    our business community and to our culture.
        Certainly I was not involved in the decisions that led to
    the Executive actions that you reference, and I am not aware
    of, at this point, how the Department of Homeland Security has
    set forth regulations to actually implement that, so I cannot
    comment on the particulars of what will happen.
        I have had occasion to look at the Office of Legal Counsel
    opinion through which the Department of Homeland Security
    sought legal guidance there, as well as some of the letters
    from constitutional scholars who have looked at the similar
    issue. And certainly it seems to be a reasonable discussion of
    legal precedent, the relevant statute, congressional actions,
    along with the enforcement discretion of the agency, and I do
    not see any reason to doubt the reasonableness of those views.
        I do think, however, that the ultimate responsibility of
    the Department of Justice is to always, when presented with
    issues by the White House or any agency, to review those issues
    carefully, to apply the relevant law and make a determination
    as to whether or not there is a legal framework that supports
    the requested action.
        And I found it interesting, as I was reading the legal
    counsel opinion, that some of the proposals that were--that
    were set forth and asked about, the Office of Legal Counsel
    opined did not in fact have a legal framework, and I do not
    believe that those were actually implemented.
        So I do think it is very important that as the Department
    of Justice, through any of its agencies, be it the Office of
    Legal Counsel or in a direct conversation with the President or
    any other member of the Cabinet, always ensure that they are
    operating from a position of whether or not there is a legal
    framework that supports the requested action. And the advice
    provided must be thorough, it must be objective, and it must be
    completely independent.
        Chairman Grassley. Let me take off on one word you used,
    ``discretion,'' and I presume that may have applied to
    prosecutorial discretion that was part of the President's
    rationale.
        If this is lawfully exercised on an individual basis,
    depending on the facts of a specific case, it is in fact case-
    by-case. So this is not so much a philosophical question as a
    practical thing.
        What it does not allow anybody to do is tell whole
    categories of people that the law will not apply to them going
    forward. No one seriously disputes these broad principles; even
    the Office of Legal Counsel opinion on the President's
    Executive action accepts them.
        So let me ask you this. What are the outer limits of the
    doctrine of prosecutorial discretion, and why don't the
    President's actions exceed those boundaries? When we are
    talking about millions of people, how does this action
    realistically allow for a case-by-case exercise of discretion?
        Ms. Lynch. Senator, as I reviewed the opinion and looked at
    the issues presented therein from the perspective of my career
    as a prosecutor and as a United States Attorney, and applying
    those principles of the exercise of discretion, I viewed it as
    a way in which the Department of Homeland Security was seeking
    legal guidance on the most effective way to prioritize the
    removal of large numbers of individuals, given that the
    resources would not permit removal of everyone who fell within
    the respective category.
        And that certainly was the framework from which I viewed
    that. And looking at it from that perspective, the Department
    of Homeland Security's request and suggestion that they in fact
    prioritize the removal of the most dangerous of the
    undocumented immigrants among us--those who have criminal
    records, those who are involved in national security and
    terrorism, those who are involved in gang activity, violent
    crime, along with, I believe, people who have recently entered
    and could pose a threat to our system--seemed to be a
    reasonable way to marshal limited resources to deal with the
    problem.
        As a prosecutor, however, I have had experience, obviously,
    in doing similar things and finding the best way to attack a
    serious problem with limited resources. But as a prosecutor, I
    always want the ability to still take some sort of action
    against those who may not be in my initial category as the most
    serious threat. And I did not see anything in the opinion that
    prevented action being taken against individuals who might
    otherwise qualify for the deferral.
        Again, I am not aware of how the Department will actually
    go forward and implement by regulation this matter. I have not
    had the occasion to study that, and I do not know in fact if
    those are out.
        Certainly, if I am confirmed as Attorney General, I look
    forward to learning more about that process and making sure
    that we are using all of our resources to protect the American
    people, particularly against the dangerous offenders who
    rightfully stand at the top of the removal list.
        Chairman Grassley. Yes. Well, I think you are telling me
    that you can do it for a few thousand or a few tens of
    thousands of people that maybe have committed a crime or
    something, but it seems to me to be--common sense would dictate
    that it is impossible to do prosecutorial discretion the way it
    has traditionally been done on an individual basis for the
    millions that are left over.
        Let us move on. I would like to move away from the
    President's refusal to enforce the law and talk a little bit
    about this administration's failure to apply the law in an
    evenhanded way.
        According to the--this goes to the IRS. According to the
    Treasury Department Inspector General--now, that is not me, the
    Inspector General--the IRS used inappropriate criteria to deny
    tax-exempt status to predominantly conservative organizations,
    asked unnecessary questions and lastly, slowed approval of
    their application.
        Initially, President Obama remarked that any IRS actions to
    target conservatives would be ``outrageous.'' Then last
    February the President said there was not ``even a smidgeon of
    corruption'' in what occurred at the IRS. ``A smidgeon of
    corruption.''
        Yet a few months later, in June, the director of the FBI,
    Director Comey, testified before the House Judiciary Committee
    that there was a ``very active'' ongoing criminal investigation
    into the matter. So this brings me to these questions.
        I would like to know how to reconcile these two statements.
    If what the President said was accurate, then why in the world
    would the FBI be conducting an ongoing criminal investigation?
    A rhetorical question: Would the FBI investigation be just for
    show? I would like--I am going to take Director Comey at his
    word.
        So if there is an ongoing criminal investigation at the
    FBI, then how could it be possible--be appropriate for the
    President to reach a conclusion about the facts before Director
    Comey?
        Ms. Lynch. Thank you, sir, and let me state at the outset
    that with regards to the actions of any of the agencies of our
    Government, there is certainly no place for bias or favoritism
    or anything other than the evenhanded application of the
    relevant laws and regulations. And certainly that has always
    been my goal as a prosecutor, and would be my continued goal
    should I be confirmed.
        With respect to the IRS investigation, I am generally aware
    that there is an investigation going on, but it is not a matter
    that is either being conducted by my office or that I have been
    briefed on as United States Attorney. So I am not able to
    comment on the status now, except state that I do----
        Chairman Grassley. Based on what you just said, then, I can
    shorten this up by asking you this question. You have spent a
    career in law enforcement. When would it ever be appropriate
    for any President to know the results of a criminal
    investigation and then comment on it publicly while the
    investigation is still ongoing?
        Ms. Lynch. Senator, it--with respect to this investigation
    or any other, I am not aware of the context or the basis for
    the President's remarks, so I am not able to determine whether
    or not they were in fact done after any evaluation of the
    investigation or whether they were a matter of opinion. So I am
    not able to comment on that specific remark.
        Certainly, as part of the Department of Justice's exercise
    of its powers, whether at the United States Attorney level or
    here in Washington, investigations are handled independently
    and without provision of materials or information about them--
    before their conclusion--to others in the executive branch or
    other agencies.
        Chairman Grassley. Senator Leahy. Thank you very much.
        Senator Leahy. Thank you, Mr. Chairman.
        You know, I have been fortunate that my native State of
    Vermont has allowed me to serve here for four decades. I have
    listened in several different Committees I have been on to a
    lot of statements by nominees. I cannot think of one that is so
    moving as your statement, and I intend to make sure I have some
    copies for all members of my family and other friends.
        You know, my years in law enforcement as State's Attorney
    in Vermont gave me a lot of respect for the difficult and
    dangerous work we ask police officers to do every day. I know
    the toll it can take, not only on the officers, but oftentimes
    on their families.
        Ms. Lynch. Yes.
        Senator Leahy. I have tried to support the work of law
    enforcement to keep our communities safe. They have to have the
    resources they need, whether it is bulletproof vests or funding
    for innovative criminal justice efforts.
        I have also been deeply moved by the tragic events in
    Ferguson and New York. They have focused on what we know is a
    reality--strained relations between law enforcement and the
    communities they serve. I appreciate your reference to that in
    your statement. But you have worked very hard as a U.S.
    Attorney to bring both law enforcement and the communities
    together. Could you elaborate on that a little bit more?
        Ms. Lynch. Yes, thank you, Senator. I think you have raised
    one of the most important issues facing our country today,
    which is the need to resolve the tensions that appear to be
    discussed and appear to be rising between law enforcement and
    the communities that we serve. In my experience as a prosecutor
    and United States Attorney, these tensions are best dealt with
    by having discussions between all parties so that everyone
    feels that their voice has been heard.
        With respect to our brave law enforcement officers, we ask
    so much of them. We ask them to keep us safe; we ask them to
    protect us, literally, from ourselves, and we ask them to do it
    often without the resources that they need to be safe and
    secure themselves. Yet they still stand up every day and risk
    their lives for us.
        Many of our community residents, because of a host of
    factors, feel disconnected from government in general today,
    and when they interact with law enforcement, transfer that
    feeling to them as well, even if someone is there to help. What
    I have found most effective is getting people together and
    simply listening to their concerns, being open, helping them
    see that in fact we are all in this together and that the
    concerns of law enforcement, a safe society, a free society,
    are the exact same concerns of every resident of every
    community there.
        Senator Leahy. And would you agree that that is something
    that has to be considered by not only Federal law enforcement,
    but by State and local law enforcement, and that the Federal
    Government can help the State and local law enforcement in that
    respect?
        Ms. Lynch. Absolutely, Senator. One of the most important
    roles that the Department of Justice plays is not necessarily
    its most visible role, but it is the support that we provide to
    State and local law enforcement partners through our grant
    program and through our training program. We try our best to
    provide them with the resources that they need to carry out
    their jobs safely and effectively.
        Senator Leahy. You know, we all know that no prosecutor's
    office has the resources to prosecute every single crime before
    it, and you have to decide which ones have priority. Let me
    talk about one.
        In State court, there is a case where a child rapist would
    receive two years. You obviously disagree with that.
        You have brought Federal charges. And I think Bill O'Reilly
    on Fox called you a hero and said, ``You should be respected by
    all Americans for standing up to gross injustice,'' and I
    agree. I agree with Bill O'Reilly on that.
        More and more of the Justice Department's budget, as I said
    earlier, is going into our Federal prison system, so you have
    limited resources. How do you make these kind of judgments? How
    do you determine which cases are the important ones? A very
    difficult thing, realizing if you go after certain cases, it
    means you do not have the resources to go after others.
        Ms. Lynch. Certainly, Senator. One of the privileges of
    being the U.S. Attorney for the Eastern District of New York
    has been the ability to work with so many of my United States
    Attorney colleagues across the country.
        All of us engage in this process every day, and we start
    with a full and frank evaluation, with our law enforcement
    partners, of the crime issues facing our particular districts.
    We try and determine what are the greatest threats to the
    people that we have sworn to serve.
        And that is what I do in the Eastern District of New York
    every day. We then look at our resources and set priorities and
    goals to achieve the safest communities that we can.
        But Senator, we do have to always, always maintain the
    flexibility to look at specific cases such as the Goodman case
    and determine if a Federal interest exists and if, in fact, a
    victim has not been protected and has not been heard, and use
    Federal resources there as well.
        Senator Leahy. Well, let me go into one that takes
    resources--we have had some people say to actually go get
    terrorists and lock them up in Guantanamo, even though we know
    what that has cost the American people, both in respect abroad
    and in dollars.
        You have successfully prosecuted a number of terrorism
    cases in the Eastern District of New York, cases against
    individuals--plotting against John F. Kennedy Airport, the
    Federal Reserve Bank, and so on.
        Just this month, you charged two Al-Qaeda members for
    attacking American troops in Afghanistan and Iraq. I was
    impressed, not only in your district, but in other parts of the
    country, where we have actually brought these terrorists to
    trial in our Federal courts. We have shown the rest of the
    world we can do it. There have been convictions, Osama bin
    Laden's son-in-law being one, and then they have been locked
    up.
        Now, do you find the criminal justice system--I think I
    know your answer--an important terrorism tool?
        Ms. Lynch. Senator, it is certainly an important
    counterterrorism tool in the arsenal of tools that we have to
    deal with this ever-growing and ever-evolving threat. Let me
    say, at the outset, my view is that if terrorists threaten
    American citizens here or abroad, they will face American
    justice.
        We work with our counterparts throughout the executive
    branch to determine, based on every case, the most appropriate
    venue for bringing terrorists to justice, as our primary goal
    is to incapacitate them and prevent further destruction.
        Certainly within my own career as U.S. Attorney when
    cases--when the decision has been made that the case should be
    handled by a U.S. Attorney's Office, we proceed in that
    fashion.
        We also work closely, however, with the Office of Military
    Commissions and consult with them and share information to make
    those decisions as to what is in fact the best way to manage
    every case.
        Senator Leahy. I want to ask you a question I have asked
    each of the previous Attorney General nominees, and I say this
    because I think of the tremendous effort of the Senator from
    California, Senator Feinstein, who is sitting here--her
    tremendous efforts to confront acts of torture carried out in
    our country's name.
        Do you agree that waterboarding is torture and that it is
    illegal?
        Ms. Lynch. Waterboarding is torture, Senator.
        Senator Leahy. And thus illegal?
        Ms. Lynch. And thus illegal.
        Senator Leahy. Thank you.
        And I know you are going to be asked a lot about
    immigration. Well, it makes me think we should be focusing on
    your qualifications for this job. Asking those questions might
    also speak to some of the qualifications of Congress.
        We worked for months in this Committee, night and day,
    hundreds of hours, hearings, markups, debate, and we passed, by
    a strong bipartisan majority, an immigration bill that
    referenced so many of these things that we now hear discussed.
        In my opinion, there were votes enough to pass it in the
    House of Representatives, but their leadership decided not to
    bring it up. I think that was a mistake. So now we deal with
    the question of Executive action.
        You did not write the Executive action; you were not
    consulted about it, were you?
        Ms. Lynch. No, I was not aware of it until it was rendered.
        Senator Leahy. And would you say, if you have got millions
    of people in this country who may not be in a valid or legal
    status, it would perhaps strain our resources to think about
    how we would deport 10 to 12 million people?
        Would that be a fair statement?
        Ms. Lynch. I believe that statement is fair, sir.
        Senator Leahy. Thank you.
        Thank you, Mr. Chairman.
        Chairman Grassley. Senator Hatch is the next one, but I
    wanted to inform all the Committee Members that since everybody
    on the Committee was here at the fall of the gavel, it will be
    done on a seniority basis, as opposed to first-come, first-
    served basis.
        Senator Hatch is next.
        Senator Hatch. Well, thank you, Mr. Chairman. I appreciate
    it.
        Ms. Lynch, welcome to the Judiciary Committee.
        Ms. Lynch. Thank you.
        Senator Hatch. I appreciate the service you have given in
    this country, and I am impressed with your qualifications, and
    I hope I can support your nomination.
        It is important to hear what you understand your role and
    duty will be. Do you agree that when the constitutionality of a
    law is challenged, the Attorney General has a duty to defend
    that law if reasonable arguments can be made?
        Ms. Lynch. Senator, I believe that one of the first and
    foremost duties of the Department of Justice is to defend the
    laws as passed by this body.
        Senator Hatch. All right. Now, I would like you to answer
    these questions. I am trying to get through a number of them. I
    think you can answer most of them yes or no, if you can.
        If you are confirmed, will you commit to enforce and defend
    the laws and the Constitution of the United States, regardless
    of your personal and philosophical views on--any matter?
        Ms. Lynch. Absolutely, sir.
        Senator Hatch. Thank you. I am glad you said that.
        Attorney General Holder answered that same question in the
    same way. The Justice Department had made reasonable arguments
    that the Defense of Marriage Act is constitutional, but then
    the Attorney General chose to stop making those arguments
    because of his personal views. And by breaking his promise, he
    cast doubt about others who make the same commitment as you did
    today.
        Now, I do not doubt your sincerity. We have met together,
    and I have a high opinion of you. But is there any more
    assurance that you can give us on something like that?
        Ms. Lynch. Senator, it is my view that when it comes to the
    position of the Attorney General and the role of the Department
    of Justice in defending the statutes as passed by this
    Congress, the issue is not my personal view or any issue of
    bias or policy, even. But it is the duty and responsibility of
    the Department of Justice to defend those statutes.
        Certainly, as we have seen, there may be rare instances
    where--and again, I was not involved in those--in that
    analysis, but there may be certain circumstances where careful
    legal analysis raises constitutional issues.
        Senator Hatch. But they would be rare----
        Ms. Lynch. Those would be few and far between.
        I also think that, should we reach that point, if there is
    a matter, it is a matter that I would prefer to have discussion
    about.
        Senator Hatch. Okay. I appreciate that answer.
        I am concerned that the administration has exceeded its
    lawful authority in several ways in an effort to avoid working
    with us up here in Congress. Now, I understand why they might
    not want to work with Congress from time to time, but,
    unfortunately, the Constitution requires us to work together,
    and that the Justice Department has actually facilitated this
    pattern of behavior, some people believe.
        The Department has done so in a number of ways: in
    exceeding and even contravening lawful authority in the
    programs it helps administer, such as with the latest Executive
    actions on immigration; in purporting to provide legal
    justification for other agencies to ignore the law, as
    apparently occurred with the transfer of Taliban terrorists out
    of Guantanamo without notifying Congress, which is an
    obligation; and in taking some extreme litigation positions
    which, by my count, the Supreme Court has unanimously rebuked a
    record 20 times.
        Now, given these disturbing patterns, how can you assure us
    that you will be independent, that you will say no to the White
    House or other executive branch agencies when they wish to act
    beyond the law as it is written?
        Ms. Lynch. Senator, I think one of the most important
    functions of the Department of Justice is to provide a legal
    framework, if it exists, when questions are raised.
        Senator Hatch. Right.
        Ms. Lynch. But consistent with that, every good lawyer
    knows you must also provide the information that indicates that
    a legal framework may not exist for certain actions that
    someone may want to take. Every lawyer has to be independent,
    the Attorney General even more so, and I pledge to you that I
    take that independence very seriously.
        Senator Hatch. Well, you did that in my office, and I
    appreciate that, because I think you will be a great Attorney
    General if you will do that.
        Last August, you gave a speech in Switzerland in which you
    praised Attorney General Holder's initiative to limit mandatory
    minimum sentences only to some of the criminals who Congress
    said should receive them. But prosecutors, including even the
    Attorney General, do not have authority to decide that entire
    categories of defendants will not receive a sentence that the
    Congress has mandated. Is not that another example of using
    prosecutorial discretion to really, in effect, change the law
    without Congress?
        Ms. Lynch. Senator, with respect to the material that you
    are referring to, when I did give that speech, I was referring
    to the Department's ``Smart on Crime'' initiative, which seeks
    to manage another intractable problem of the large number of
    narcotics defendants and the limited resources that we have to
    handle those defendants and prosecute them.
        Senator Hatch. And I want to help you with that. I want to
    help you with that.
        Ms. Lynch. Yes, and prosecute them effectively. In fact, in
    my own experience both as an Assistant United States Attorney
    and United States Attorney, we have had to deal with similar
    issues in the Eastern District of New York. We have had
    tremendous issues with narcotics importations over the years,
    and we have had to work out ways of resolving those cases. Many
    of them go to trial, but we also have had to prioritize the
    cases that we will seek mandatory minimums for and those which
    we seek guideline sentences for.
        But, importantly, with respect to the Smart on Crime
    initiative, as pushed out and as has been implemented in the
    field, every prosecutor from the United States Attorney on down
    to line assistants are encouraged to still consider cases that
    might fall into a category where initially you would not seek a
    mandatory minimum but consider whether they would be
    appropriate. And those cases have occurred, and they will
    continue to occur.
        Senator Hatch. Okay. I understand. As currently written,
    the Electronic Communications Privacy Act, or ECPA, requires
    only a subpoena for law enforcement to access email that has
    been opened, even though a search warrant would be required for
    a printout of the same communication sitting on a desk.
        To make matters more complicated, ECPA is silent on the
    privacy standard for accessing data stored abroad. Without an
    actual legal framework in place, this puts the privacy of
    American citizens at risk for intrusion by foreign governments.
        In the coming days, I intend to reintroduce the LEADS Act,
    which will promote international comity and law enforcement
    cooperation. Will you commit to working with me on this
    important subject? Because it is important we solve these
    problems.
        Ms. Lynch. Senator, the subject of electronic privacy is
    central to so many of our freedoms, and as you point out, in an
    era of ever-changing technology, we have to be vigilant to make
    sure that we are not only providing law enforcement the tools
    it needs but protecting our citizens' privacy. And I certainly
    commit to you to working with you on this important legislation
    and all the issues that will flow from it.
        Senator Hatch. Well, thank you so much.
        Trade secrets are among the most valuable assets for
    American companies and currently are protected under Federal
    criminal law by the Economic Espionage Act and by an array of
    State civil laws. Unlike other forms of intellectual property,
    however, there is no Federal civil remedy for trade secret
    owners. I will reintroduce the Defend Trade Secrets Act in the
    coming days with Senator Coons to provide an efficient Federal
    remedy for trade secret owners.
        Do you agree that trade secret owners should have the same
    access to a Federal remedy as owners of other forms of
    intellectual property?
        Ms. Lynch. Senator, I think that the issue of trade
    secrets, again, particularly as American technology becomes
    ever more complex and becomes ever more a target from those
    both in the U.S. and without who would seek to steal it, is an
    increasingly important issue, and I look forward to working
    with you to consider that statute. I am not familiar with the
    provision that you raise, but it certainly touches on an
    important issue of making sure that our companies and their
    technology are protected.
        Senator Hatch. Well, thank you so much.
        I am today introducing legislation to help victims of child
    pornography receive the restitution that Congress has already
    said they deserve. The Supreme Court said last year that the
    current restitution statute, enacted more than 20 years ago,
    does not work for child pornography victims, and this
    legislation will change that. I am joined by more than 30
    Senators on both sides of the aisle, including 4 on this
    Committee.
        Do I have your commitment that, under your leadership, the
    Justice Department will aggressively prosecute child
    pornography and use tools like this legislation to help victims
    get the restitution they need to put their lives back together?
        Ms. Lynch. Senator, throughout my career, I have expressed
    a commitment to prosecuting those who would seek to harm our
    children, be it through child pornography or the actual abuse
    of children, which often go hand in hand.
        You certainly raise important issues about how can we make
    these victims whole, and I look forward to working with you and
    the Members of this Committee in reviewing that legislation as
    well.
        Senator Hatch. Thank you so much.
        Now, I recently read a powerful book. I read it in one day.
    It is titled ``License to Lie: Uncovering Corruption in the
    Department of Justice.'' The author writes about many things,
    including the debacle that occurred in the misguided
    prosecution of Senator Ted Stevens, which I thought was out of
    this world bad. I was one of the people who testified as to his
    character, and he was a person of great character.
        As you know, he lost the Senate race because of this type
    of prosecution. I know that case. Ted Stevens was a dear friend
    of mine, and I testified on his behalf, as I said.
        Only after he was convicted did we learn that the Justice
    Department prosecutors intentionally hid exculpatory evidence
    that could have helped his case.
        Now, these were not mistakes. They were corrupt acts that
    violated every prosecutor's duty under the Brady v. Maryland
    decision to turn over exculpatory evidence so that the trial
    will be fair.
        Now, I recommend that you read this book because, if even
    half of it is true--and I believe it is true--you have a lot of
    work to do to clean up that Department. Will you consider doing
    that for me?
        Ms. Lynch. Thank you, Senator. I will.
        Senator Hatch. I appreciate it.
        Thanks, Mr. Chairman.
        Chairman Grassley. Before I call on Senator Feinstein, I am
    going to ask, just as soon as the Finance Committee convenes, I
    am going to offer an amendment, so I would ask the most senior
    Republican to watch the time and call on the next person in
    seniority order.
        Senator Feinstein.
        Senator Feinstein. Thank you very much, Mr. Chairman.
        Ms. Lynch, I sat through six opening statements by
    potential Attorneys General, and I just want to tell you yours
    was the best.
        Ms. Lynch. Thank you.
        Senator Feinstein. I see the combination of steel and
    velvet. I see your effectiveness before a jury. I see your love
    for the Constitution. And I see the determination which is in
    your heart and, I think, your being, and it is very, very
    impressive. So I want to thank you for really 30 years of
    service.
        Ms. Lynch. Thank you, Senator.
        Senator Feinstein. And I hope it will be a lot longer.
        Mr. Chairman, I would like to place in the record Los
    Angeles Police Department Chief Charlie Beck's written
    testimony on the subject of the President's Executive action on
    immigration.
        Chairman Grassley. Without objection, so ordered.
        Senator Feinstein. Thank you very much.
        [The information appears as a submission for the record.]
        Senator Feinstein. Ms. Lynch, I am going to ask you three
    questions. The first is on expiring provisions of the Foreign
    Intelligence Surveillance Act, which will come to this
    Committee before June of this year and also before the
    Intelligence Committee, on which I serve; a question about
    Office of Legal Counsel opinions; and a question on the State
    Secrets Act.
        Let me begin with FISA. The three provisions that are going
    to expire on June 1 are, first, the roving wiretap authority.
    This provision enables the Government to maintain surveillance
    on a target when he or she switches phone numbers or email
    addresses without seeking a new court order.
        The second is the lone wolf authority, which enables the
    Government to conduct surveillance of a non-United States
    person engaged in international terrorism without demonstrating
    that they are affiliated with a particular international
    terrorist group such as ISIS or Al-Qaeda.
        And the third is the business records authority, which
    carries with it Section 215 of the National Security
    Administration. This enables the Government to obtain a court
    order directing the production of ``any tangible thing'' that
    is relevant to an authorized national security investigation.
        Can you describe for us the importance of these three
    provisions and what would be the operational impact if the
    three were allowed to sunset in June?
        Ms. Lynch. Thank you, Senator. You certainly raise an
    important issue about the need to have a full panoply of
    investigative tools and techniques to deal with the ever-
    evolving threat that terrorism presents against us.
        With respect to the provisions that you refer to, I think I
    have always found it most interesting that the roving wiretap
    provision is actually a provision that was incorporated into
    the FISA statute after being utilized extensively for several
    years in narcotics prosecutions. It was one with which I was
    familiar as a young prosecutor, as many of my colleagues across
    the country were as well. And the ability to describe to a
    court the nature of the offense, the nature of the activity,
    and the use of attempts to shield oneself from electronic
    surveillance, which is part of what must be set forth in the
    application, have been invaluable tools.
        Of particular importance is the fact that all of this must
    go to a court. Obviously, in the narcotics area, it was an
    Article III Court; in the FISA area, it is to the FISA Court.
    But there is judicial review for this, and it has been an
    important part of the techniques we have used in the war on
    terror, as have the other two provisions that you mention.
        I do think, however, that with respect to FISA, there is
    always the ability, there is always the need to make sure that
    we are current not just with technology, but with the most
    effective way to protect privacy as we go forward in this
    important act. I know that is something that you have spent a
    great deal of time on, as well as many of your colleagues on
    this Committee as well as on the Intelligence Committee. And I
    look forward to continuing those discussions with you, should I
    be confirmed.
        With respect to the lone wolf provision, again, I think we
    have to obviously examine it carefully. Recent events, however,
    have underscored the importance of this as an issue in the war
    on terror, and so I would hope that we could move forward with
    any proposed changes to FISA with a full and complete
    understanding of the risks that we are still facing, and if any
    changes need to be made, again, after full and fair
    consideration with this Committee, with the Intelligence
    Committee, and the discussions that we need to have, making
    sure that we can still provide law enforcement with the tools
    that they need.
        Similarly with Section 215, I believe that the court order
    provision in there is an effective check and certainly a
    necessary check as we gather data from all types of sources. As
    I have always said, I am certainly open to discussions about
    how they can be best modified, if we need to modify them,
    consistent with the goals of protecting the American people.
    And I commit to you, Senator, and indeed to all of this
    Committee, that I will always listen to all those concerns, be
    it about the FISA statute or any of the techniques we are using
    in the war on terror.
        Senator Feinstein. Thank you very much.
        As a Member of both Judiciary and Intelligence, we have on
    both Committees sought access to Office of Legal Counsel
    opinions, called ``OLC opinions,'' and these opinions often
    represent the best and most comprehensive expression of the
    legal basis for intelligence activities Congress is actually
    charged with overseeing. So without these opinions, you do not
    really know the legal basis upon which an administration has
    based certain activities, and it has been very frustrating to
    us.
        In particular, executive branch officials have previously
    advised the Committee of the existence of a seminal OLC opinion
    written by Ted Olson decades ago governing the conduct of
    collection activities under Executive Order 12333.
        My question is: Can we have your commitment that you will
    make a copy of this OLC opinion available to Members of both
    the Intelligence and the Judiciary Committees? Probably your
    first tough question.
        [Laughter.]
        Ms. Lynch. Well, Senator, I think that with respect to the
    OLC opinions, you are correct; they do represent a discussion
    and an analysis of legal issues on a wide variety of subjects
    when a variety of agencies come to the Department for that
    independent advice that we must provide them. Certainly I am
    not aware of the discussions that have been had about this
    previous opinion in terms of providing it. Certainly I will
    commit to you to work with this Committee as well as the
    Intelligence Committee to find a way to provide the information
    that you need consistent with the Department's own law
    enforcement and investigative priorities.
        Senator Feinstein. Thank you very much. This particular
    opinion is important, and it would be useful if we can review
    it, so thank you.
        On state secrets, on September 23, 2009, the Attorney
    General issued a memorandum establishing new procedures and
    standards to govern DOJ's defense of an assertion of the state
    secrets privilege in litigation. Among other things, the
    memorandum stated that the DOJ would provide the periodic
    reports to Congress on the exercise of the state secrets
    privilege.
        Since 2009, only one such report, from April 2011, has been
    provided. That report discussed the two cases in which the
    privilege had been invoked under the new policy, but those are
    no longer the only two cases.
        So I would like to ask you if you could provide the
    appropriate Oversight Committees with the second periodic
    report on the exercise of state secret privileges that
    discusses those cases which the privilege has been invoked on
    since April of 2011?
        Ms. Lynch. Senator, you raise the important issue of the
    need to work with the Oversight Committees, be they this
    Committee or Intelligence, in reviewing the actions of the
    Department of Justice, not just so the Committees can carry out
    their work, but so that the American people can be aware of how
    the Department carries out its work.
        I am not familiar with the reports that you referred to at
    this point. I certainly look forward to reviewing this issue,
    and I certainly commit to you that I will do my best to ensure
    that the Department lives up to its obligations that it has set
    forth.
        Senator Feinstein. Good. And I will come back. This is an
    important question to us, so I will come back and hopefully can
    get an answer, ``yes'' or ``no,'' within the next couple of
    weeks. So thank you very much.
        Ms. Lynch. Senator, I look forward to learning more about
    the issue, and I look forward to sharing that with you, should
    I be confirmed, as well as any issues of concern that this
    Committee or others have.
        Senator Feinstein. Thank you very much.
        Thank you, Mr. Chairman.
        Chairman Grassley. Thank you, Senator Feinstein.
        Now, it is Senator Sessions' turn.
        Senator Sessions. Thank you, Mr. Chairman.
        It is great to have you here. I appreciated the opportunity
    to have a good discussion, I think, in our office, and having
    had--I think I just passed my time in the Senate longer than I
    spent in the Department of Justice. It was a great honor to
    serve that, and I have high ideals for this Department. And we
    understand that the Attorney General is the premier law
    enforcement officer, the senior law enforcement officer in
    America. He or she sets the tone for law in America, the
    commitment to law, and must resist politicizing law and do the
    right thing on a daily basis.
        On occasion, you are called upon to issue opinions.
        OLC works for you, the Office of Legal Counsel who issues
    these opinions. And you will have to tell the President ``yes''
    or ``no'' on something that he may want to do.
        Are you able and willing to tell the President of the
    United States ``no'' if he asks permission or a legal opinion
    that supports an action you believe is wrong?
        Ms. Lynch. Senator, I believe you have touched upon one of
    the most important responsibilities of the Attorney General,
    and let me say also that I appreciated very much the
    opportunity to meet with you and discuss these important
    issues.
        The Attorney General's position as a Cabinet member is
    perhaps unique from all other Cabinet members. Yes, a member of
    the President's Cabinet, but the Attorney General has a unique
    responsibility to provide independent and objective advice to
    the President or any agency when it is sought, and sometimes
    perhaps even when it is not sought.
        With respect to the Office of Legal Counsel----
        Senator Sessions. And so you understand that your role is
    such that on occasion you have to say ``no'' to the person who
    actually appointed you to the job and who you support?
        Ms. Lynch. Senator, I do understand that that is, in fact,
    the role and the responsibility of the Attorney General and, in
    fact, a necessary obligation on their part.
        Senator Sessions. Well, you know, people have agendas, and
    Attorneys General sometimes do, and they have to guard against
    that and be objective, as you basically said to me, now in
    Committee.
        On April 24th of 2013, Attorney General Holder said this--
    and I am raising this fundamentally because I think there is a
    lot of confusion about how we should think about immigration in
    America, what our duties and what our responsibilities are. He
    said this: ``Creating a pathway to earned citizenship for the
    11 million unauthorized immigrants in our country is essential.
    The way we treat our friends and neighbors who are
    undocumented--by creating a mechanism for them to earn
    citizenship and move out of the shadows--transcends the issue
    of immigration status. This is a matter of civil and human
    rights.''
        So let me ask you, do you believe that a person who enters
    the country unlawfully, that has perhaps used false documents
    or otherwise entered here, has a civil right to citizenship?
        Ms. Lynch. Well, Senator, I am not familiar with the
    context of those comments. I certainly think that you do touch
    upon the difficult issue of how do we handle the undocumented
    immigrants who come to our country, I believe, for the life
    that we offer, I believe, because of the values that we
    espouse.
        Senator Sessions. Well, I do not want to interrupt you, but
    just the question is: Do you agree with that statement that it
    is a matter of civil rights and citizenship and work authority,
    a right to work in America, for someone who enters the country
    unlawfully, that is a civil right?
        Ms. Lynch. Senator, I have not studied the issue enough to
    come to a legal conclusion on that. I certainly think that
    people who come to this country in a variety of ways can
    rehabilitate themselves and apply, but that would have to be
    something that would be decided on a case-by-case basis.
        Senator Sessions. Well, I would just like to hear you
    answer that. Is it a civil right for a person who enters the
    country unlawfully, who would like to work and like to be a
    citizen, to demand that contrary to the laws of the United
    States, and when Congress does not pass it, is that a right
    that they are entitled to demand?
        Ms. Lynch. Sir, I do not think that--I think that
    citizenship is a privilege. Certainly it is a right for those
    of us born here. I think it is a privilege that has to be
    earned. And within the panoply of civil rights that are
    recognized by our jurisprudence now, I do not see one such as
    that you are describing.
        Senator Sessions. I certainly agree. I am a little
    surprised it took you that long, but the Attorney General's
    statement was breathtaking to me.
        Now, Peter Kirsanow, who is a member of the U.S. Commission
    on Civil Rights, responded to that some time ago, and here is
    what he said: ``To equate amnesty for breaking the Nation's
    immigration laws with civil rights betrays an incoherent and
    ahistorical understanding of the civil rights movement. Law-
    abiding Black citizens of the United States were not seeking
    exemption; they were seeking application of such laws in the
    same manner that was applied to Whites.''
        Would you agree with Mr. Kirsanow's analysis?
        Ms. Lynch. Well, certainly I think with respect to the
    civil rights movement and the role of African Americans in it,
    it certainly was a movement designed to assure equal access to
    law and equal application of law.
        Senator Sessions. Well, on the 50th anniversary of the
    Selma march that is approaching--people were denied
    systematically fundamental rights as citizens of the United
    States of America. And that was a historic event. It changed
    America, and I think it is important that that be remembered.
    But I will just tell you, it is quite different, as I think Mr.
    Kirsanow points out, to demand your lawful rights as an
    American and to ask for--insist that civil rights apply to
    those who enter the country unlawfully to have these benefits.
        Well, the President's action would give people who came
    here unlawfully the right to work, the right to participate in
    Social Security and Medicare, when Congress has not done that;
    allows them to stay, for at least a period, lawfully.
        Let me ask you this: In the workplace of America today--
    when we have a high number of unemployed, we have had declining
    wages for many years, we have the lowest percentage of
    Americans working--who has more right to a job in this country:
    a lawful immigrant who is here, a green-card holder, or a
    citizen, or a person who entered the country unlawfully?
        Ms. Lynch. Well, Senator, I believe that the right and the
    obligation to work is one that is shared by everyone in this
    country, regardless of how they came here. And certainly if
    someone is here, regardless of status, I would prefer that they
    be participating in the workplace than not participating in the
    workplace.
        With respect to----
        Senator Sessions. Well, that was--so you think that a
    person that is--anybody that is here, lawfully or unlawfully,
    is entitled to work in America?
        Ms. Lynch. Well, Senator, I am not sure if I know--if I
    understand the basis for your question as to whether or not
    there is a legal basis for them to work or not.
        Senator Sessions. I asked you who had--we were talking
    about rights. Who has the most rights? Does a lawful American
    immigrant or citizen have the right to have the laws of the
    United States enforced so that they might be able to work? Or
    does a person who came here unlawfully have a right to demand a
    job?
        Ms. Lynch. Certainly the benefits of citizenship confer
    greater rights on those of us who are citizens than those who
    are not.
        Senator Sessions. Well, do you think a person that is here
    unlawfully is entitled to work in the United States when the
    law says that employers cannot hire somebody unlawfully in
    America----
        Ms. Lynch. I believe that--go ahead.
        Senator Sessions. Go ahead.
        Ms. Lynch. Sorry, sir. I think that certainly the provision
    that you refer to regarding the role of the employer in
    ensuring the legal status of those who are here is an important
    one and that we have to look at it in conjunction with this
    issue in terms of preventing undocumented workers who, as you
    have indicated before, are seeking employment. Again, we want
    everyone to seek employment, but we have in place at this point
    in time a legal framework that requests or requires employers
    to both provide information about citizenship as well as not
    hire individuals without citizenship.
        Senator Sessions. Do you think that someone given--I
    understand that you support the Executive order and OLC's
    opinion; is that correct?
        Ms. Lynch. I do not believe my role at this point is to
    support or not support it. My review of it was to see whether
    or not it did outline a legal framework for some of the actions
    that were requested. And as noted, it indicated that there was
    not a legal framework for other actions that were requested.
        Senator Sessions. Well, let me wrap up by asking this: If a
    person comes here and is given a lawful right under the
    President's Executive amnesty, they have a Social Security and
    a work authorization card, what if somebody prefers to hire an
    American citizen first, would you take action against them? Do
    you understand this to mean that those who are given Executive
    amnesty are entitled as much as anybody else in America to
    compete for a job in America?
        Ms. Lynch. Well, I do not believe that it would give anyone
    any greater access to the workforce and certainly an employer
    would be looking at the issues of citizenship in making those
    determinations.
        Senator Sessions. Would you take action against an employer
    who says no, I prefer to hire somebody that came to the country
    lawfully, rather than someone given Executive amnesty by the
    President? Would Department of Justice take action against
    them?
        Chairman Grassley. When you answer that I will move on
    then.
        Ms. Lynch. Thank you, sir.
        With respect to the provision about temporary deferral, I
    did not read it as providing a legal amnesty. That is not
    permanent status there, but a temporary deferral. With respect
    to whether or not those individuals would be able to seek
    redress for employment discrimination if that is the purpose of
    your question, again, I have not studied that legal issue. I
    certainly think you raise an important point and would look
    forward to discussing it with you and using and relying upon
    your thoughts and experience as we consider that point.
        Chairman Grassley. Thank you, Senator Sessions.
        Now Senator Schumer.
        Senator Schumer. Well, thank you and you know, I think that
    even in the short while here, it is clear to my colleagues why
    you are such a tremendous--why you have been such a tremendous
    U.S. Attorney in my home State of New York and home borough of
    Brooklyn, and why you would make such a great Attorney General.
    You are just knocking them out of the park.
        And speaking of sports analogies, there is another point I
    would like my colleagues to know, another testament to your
    perseverance, to your loyalty in the face of incredible
    adversity. With all due respect to Mr. Tillis, you are not a
    Tar Heel or a Blue Devil, you are a Knicks fan. And that
    takes--it is a lot tougher being a Knicks fan than going
    through these questions here today.
        But, anyway, I would like to just go over a couple of
    points some of my colleagues made. First on prosecutorial
    discretion, there is a myth out there that prosecutorial
    discretion policies are tantamount to an illegal failure to
    enforce the law. And we know that you have enforced the law
    aggressively and will continue to do so, as has the
    administration.
        Some of my friends across the aisle seem to be suggesting
    that the President's announcement of the enforcement policies
    for the Department of Homeland Security is tantamount to an
    announcement that we will not enforce our immigration laws, but
    that is absurd.
        We know we have 11 million undocumented immigrants living
    in the United States. Congress, this body, only allocates
    enough money for DHS to deport 400,000 of them; 11 million
    illegal immigrants, enough money to deport 400,000. Obviously
    you have to make some choices here. And I am sure when my dear
    friend Jeff Sessions, and he is a dear friend, was U.S.
    Attorney in Alabama, he used prosecutorial discretion. I know
    he did a good job going after violent drug dealers and
    criminals.
        We want our prosecutors to go after the highest level
    crimes if they do not have the resources to do all of them.
    Doesn't it make sense to have a general rule to prosecute in a
    prosecutorial office with limited resources to go after bank
    robbers before you go after shoplifters?
        Now, obviously there can be an occasional exception. As you
    mentioned, the President's Executive order allows for that
    occasional exception. But this idea that going after--having an
    office go after the higher-level, more dangerous crimes first
    is part of how law enforcement has gone on for hundreds of
    years, and it should. So I do not even get this idea that this
    is an illegal act by the President.
        We arm our law enforcement officials with an array of laws,
    but limited resources. They have to make hard choices. And a
    straightforward allocation of resources is not political
    activism, it is what prosecutors are doing in every
    jurisdiction of this land right now.
        Immigration is like any other issue. We have limited
    resources. It makes eminent sense to go after the hardened
    criminals before going after lower-level offenders. So just let
    me ask you a couple of questions here.
        Don't U.S. Attorney's Offices all over the country
    consistently have to make these general type of prosecutorial
    decisions on a day-to-day basis? And how do you?
        Ms. Lynch. Yes, Senator. With respect to the exercise of
    discretion and the setting of priorities, one of the privileges
    that I have had of being the U.S. Attorney in the Eastern
    District of New York and working with my colleagues across the
    country has been getting to know them and learning about how
    different every district is. How a crime problem in Brooklyn
    may not even appear on the West Coast. And how a crime problem
    in the Midwest that has seen an increase in crime due to the
    happy accident of increased oil reserves may present issues
    that I would never face in an urban environment.
        My colleagues and I work together and we share our thoughts
    on the best ways to deploy our limited resources to deal with
    the crime problems in our districts. My colleagues that have a
    large number of Native American reservations in their
    districts, for example, have a very different base of problems
    than I do. But they are just as committed and just as focused
    on keeping those citizens safe as well.
        So all of us look at the crime problems in our districts.
    To do that, we work very closely with our law enforcement
    partners in looking at how they have determined the nature of
    the threat, be it terrorism, be it narcotics, be it those who
    would target children.
        We also work closely with our State and local counterparts,
    not just the law enforcement counterparts, but our prosecutive
    counterparts in the District Attorney's Offices.
        Many times I will have a matter in my office that is
    subject to both Federal and State jurisdiction and it may be
    more appropriate for the District Attorney to prosecute that
    type of crime because of the nature of the sentence that can be
    achieved, because of the impact on a particular victim or
    community, or because of the legal issue involving proof and
    the admissibility thereof. All of these things go into the
    consideration of how we manage individual cases but also how we
    set priorities and then deploy our limited resources to best
    protect the people of our district.
        Senator Schumer. Exactly. Every prosecutor, whether it is
    the Justice Department, the U.S. Attorney's Office, sets
    priorities and has to, and that is just what the President did
    in my opinion in the Executive order.
        The next one, we are hearing a lot about Executive action
    being unconstitutional. And so I would like to just talk about
    that. That is another myth that is out there. No Federal court
    has struck down Executive action. The most recent Federal court
    to hand down a decision supported it. I have heard it suggested
    Federal courts have declared Executive action unconstitutional.
    It so happens, in fact, dating back to Chief Justice Rehnquist,
    the Supreme Court has repeatedly bolstered Executive discretion
    and refused to review agency decisions that are within the law.
        With respect to this Executive action there have been two
    Federal cases filed--one here in Washington by Sheriff Arpaio,
    notoriously anti-immigration activist, that has been dismissed.
    The second suit was filed in Texas and is still pending. So no
    courts have struck down Executive action.
        Now we are hearing that Speaker Boehner and House
    Republicans will be suing the President on this Executive
    action. I do not think that is a responsible use of taxpayer
    dollars, but at least Speaker Boehner and I agree on one thing:
    if Republicans disagree with President Obama over the legality
    of this policy, they can sue him and let the courts decide. The
    confirmation of America's highest law enforcement officer is
    not the time or place to vent frustration.
        So let me just ask you a couple of questions. You have
    answered them, but I want to underscore them. Because some
    people are concerned that the, ``rogue Obama administration''
    is lawless. Will you commit to following court decisions and
    legal process?
        Ms. Lynch. Absolutely, Senator, that is my first point of
    reference.
        Senator Schumer. And specifically if a court happens to
    strike down Executive action, will you respect that court
    decision?
        Ms. Lynch. I will respect that court decision.
        Senator Schumer. And let us imagine Congress--I do not
    think this will happen--I would try to prevent it as best I
    could, but let us say Congress were to pass a bill explicitly
    prohibiting President Obama's immigration actions, a bill I
    find hard to imagine the President would sign, but let us just
    imagine for the sake of argument happened.
        If such a bill passed, will you commit to following the new
    law?
        Ms. Lynch. I will commit to following all the laws duly
    executed by this body.
        Senator Schumer. Thank you. Okay. Just one other issue
    since I have a little more time. Work permits, which my good
    friend, again, Jeff, brought--Senator Sessions brought up. Some
    have suggested it is illegal for the administration to issue
    work permits for recipients of deferred action. Again, they
    imply this is unprecedented. That is misleading. Guess who did
    it in 1982? Ronald Reagan. They published INS regulations
    authorizing work permits for recipients of deferred action--
    1982, the Reagan administration. That is not to say workplace
    enforcement is not necessary. It is. And in fact, isn't it
    true, Ms. Lynch, that you have a strong record of enforcing
    workplace immigration rules?
        Just tell us a little about the 7-Eleven stores case that
    you brought on Long Island?
        Ms. Lynch. Thank you, Senator. The case against the 7-
    Eleven stores and various franchises was a very important one
    to my office because it was one in which we saw a corporate
    entity deliberately flouting the labor laws. Individuals mostly
    of a particular ethnic group who owned franchises of 7-Eleven
    were reaching out to their own community members and hiring
    them to work in the stores. This would have been an opportunity
    for individuals to earn money for their families and to
    essentially become part of the American Dream.
        Instead, however, the workers were systematically
    victimized. They were forced to work double shifts, triple
    shifts, yet only paid for working part-time hours. They were
    only given their money in either a 7-Eleven debit card, or cash
    as deemed appropriate by the manager.
        Even worse than this was the evidence that we uncovered
    that the stores were aware that they were violating the labor
    laws and simply flouting them.
        They also requested--they also required the workers to all
    live together in company-sanctioned housing. We essentially
    were creating a modern-day plantation system on Long Island and
    also throughout the Virginia area with co-conspirators of these
    franchise owners.
        We spent a long time working on the investigation in
    conjunction with our law enforcement partners. The matter is
    still being reviewed with respect to other States. And wherever
    we find workers being victimized and being discriminated
    against, certainly my office has never hesitated to take
    action.
        Senator Schumer. Thank you, my time has expired, Mr.
    Chairman.
        Senator Sessions [presiding]. Thank you. I would offer for
    the record a consent that the article from the Atlantic
    saying--headline by David Frum, ``Reagan and Bush Offer No
    Precedent for Obama's Amnesty Order.'' And I think that is
    crystal clear.
        [The article appears as a submission for the record.]
        Senator Sessions. Senator Cornyn, ``Justice'' Cornyn is
    next.
        Senator Cornyn. Good morning, Ms. Lynch.
        Ms. Lynch. Good morning.
        Senator Cornyn. Congratulations, again, to you on your
    nomination and thank you for coming to my office last--I guess
    it was last Friday----
        Ms. Lynch. Yes.
        Senator Cornyn [continuing]. To visit about this hearing.
    And I should say congratulations to you for an outstanding
    career as a United States Attorney. The challenge, I think,
    that people have when they come to Washington, DC, and they
    assume jobs that have political implications is that they sort
    of forget their basic mooring in the law and they become
    politicians, masquerading as law enforcement officers, and that
    is a real challenge. And I will not claim that it is only a
    challenge for Democrats, it has been a challenge for
    Republicans as well.
        But I am concerned--well, let me for Senator Schumer's
    benefit, let me just stipulate, you are not Eric Holder, are
    you?
        Ms. Lynch. No, I am not, sir.
        Senator Cornyn. So no one is suggesting that you are, but,
    of course, Attorney General Holder's record is heavy on our
    minds now and I agree with the Chairman about his concerns when
    the Attorney General refers to himself as the President's
    wingman, suggesting that he is not--does not exercise
    independent legal judgment as the chief law enforcement officer
    for the country.
        You wouldn't consider yourself to be a political arm of the
    White House as Attorney General, would you?
        Ms. Lynch. No, Senator, that would be a totally
    inappropriate view of the position of Attorney General.
        Senator Cornyn. And you would be willing to tell your
    friends ``no'' if in your judgment the law required that?
        Ms. Lynch. Sir, I think that I have to be willing to tell
    not just my friends and acquaintances, but colleagues, ``no''
    if the law requires it.
        Senator Cornyn. And that would include the President of the
    United States?
        Ms. Lynch. I think that the obligation of the Attorney
    General is to, when presented with matters by the President to
    provide a full, thorough, independent, substantive legal
    analysis and give the President the best independent judgment
    that there is. And that may be a judgment that says that there
    is a legal framework for certain actions and it may be a
    judgment that says that there is not a legal framework for
    certain actions.
        Senator Cornyn. And while we have stipulated you are not
    Eric Holder, Mr. Holder's record is certainly on our minds,
    because I cannot think of an Attorney General who so
    misevaluated the independent role of the chief law enforcement
    officer and taken on that aspect of the President's wingman and
    operated as a politician using the awesome power conferred by
    our laws on the Attorney General.
        The Attorney General has been openly contemptuous of the
    oversight responsibilities of a co-equal branch of Government.
    He's stonewalled legitimate investigations by the Congress
    including the investigation into the Fast and Furious episode
    that Senator Grassley referred to earlier, making bogus claims
    of executive privilege in order to keep Congress and the
    American people from finding out the facts.
        We know that the Attorney General has repeatedly made legal
    arguments that have been rejected as unconstitutional by the
    United States Supreme Court, and he's harassed States like
    mine, and I suspect you will hear from another colleague about
    his State on matters like voter ID when the United States
    Supreme Court has upheld the validity of voter ID as a means to
    protect the integrity of the ballot for people who are
    qualified to vote. And at the same time, the Attorney General
    has failed to implement laws that Congress has passed in order
    to provide--to protect the voting rights of our military
    deployed overseas.
        He's also politicized the war on terror. He's declassified
    top secret legal memos exposing public officials in the
    intelligence community to not only ridicule, but threats, legal
    and otherwise, for performing actions that they were told by
    the highest legal authorities were legal and were necessary to
    save American lives. And, indeed, he reopened a criminal
    investigation into those same members of the intelligence
    community after a previous investigation had not revealed any
    basis for criminal charges.
        So how do we know you are not going to perform your duties
    of office as Attorney General the way Eric Holder has performed
    his duties? How are you going to be different?
        Ms. Lynch. Senator, if confirmed as Attorney General, I
    will be myself. I will be Loretta Lynch. And I would refer you
    to my record as United States Attorney on two occasions, as
    well as a practicing lawyer, to see the independence that I
    have always brought to every particular matter.
        I certainly think that going forward, while I am not
    familiar with the particulars of the issues that you raise,
    they clearly are of concern to you and perhaps to this
    Committee. And I do pledge to this Committee that I want to
    hear your concerns. I want to listen to your concerns, and I
    will always be open to discussing those issues with you.
        Senator, I am sure that as we go forward, should I be
    confirmed, while it would be wonderful to think that you would
    agree with everything that I would do, that may not be the
    case.
        Senator Cornyn. You may not agree with everything we do.
        Ms. Lynch. And that is perfectly appropriate. But, Senator,
    I will always be open to discussing with you why I have done
    something and the basis for which I have made an action, to the
    extent that I am able to do so. I have found that to be the
    most effective way of not just for me in terms of learning from
    people with whom I disagree, but also working effectively with
    people with whom I may disagree on various points, but with
    whom, like you, we share a common goal.
        Senator Cornyn. Ms. Lynch, I have been married 35 years and
    I can guarantee you that 100 percent agreement is an impossible
    standard for anybody to comply with. So we do not expect that,
    obviously.
        But I want to ask you about your commitment to working with
    the Committee and Congress and respecting our congressional
    oversight authority. A recent letter sent to Senator Leahy on
    behalf of Attorney General Holder was dated December the 5th,
    2014, and it responds to questions for the record that arose in
    an appearance before this Committee on March the 6th, 2013. So
    obviously about, this looks roughly a year and a half, more
    than a year and a half later. Can we expect a more timely
    response from you and the Department of Justice to the
    legitimate inquiries of this Committee?
        Ms. Lynch. Certainly, Senator. I believe that the oversight
    responsibility of this Committee is important, not just for the
    functioning of the Committee, but also to the American people
    in terms of helping them understand the way in which the
    Department operates and the way in which we all work to keep
    them safe.
        I commit to you absolutely that I will work with this
    Committee to ensure that we provide as timely a response as
    possible. I am not sure of the particulars of the matter that
    you raise, so I am not able to comment on that. But certainly I
    would hope to be able to provide you with the information that
    you need in as timely a manner as consistent with the
    Department's litigation and enforcement responsibilities.
        Senator Cornyn. I think it would make it possible for you
    to be a more effective Attorney General and it would make it
    possible for us to be more effective in our respective roles as
    Members of Congress exercising our responsibilities as well.
        I want to just ask you a little bit about prosecutorial
    discretion which you have heard something about here. My only
    regret from this morning's hearing is that the--and Senator
    Schumer, the senior Senator from New York who introduced you,
    was not available for cross-examination by Members of the
    Committee. But we will have a chance to talk later. But he
    seemed somewhat dismissive of concerns about this massive--what
    I would consider, in essence, refusal to enforce existing law
    that is involved in these Executive actions.
        There is a difference to your mind, isn't there, between a
    case-by-case exercise of prosecutorial discretion and a refusal
    to enforce the laws that are on the books? There is a
    difference, isn't there?
        Ms. Lynch. Senator, there is a difference. And I do not
    view the Department of Justice, certainly in my own practice,
    as refusing to enforce law, but rather attempting to set
    priorities and then exercising discretion within those
    priorities.
        Senator Cornyn. Well, let me ask you about that. Isn't it
    incumbent upon the Department of Justice to ask Congress for
    the resources to do the job that Congress has said the
    Department must perform before you can come back and say, well,
    we are just not going to pursue those crimes and those offenses
    because we do not have enough money. I mean, isn't it your
    responsibility--will it be your responsibility as the next
    Attorney General to come to us and ask us for those resources?
        I cannot imagine if Attorney General Holder or the
    President of the United States or Secretary Johnson, or others,
    had come to us and said, we do not have the resources to
    enforce the immigration laws, so we are going to have to, in
    essence, decline to enforce them because we do not have those.
    I mean, don't you have that responsibility to ask for those
    resources before you decline to enforce the law based on lack
    of resources?
        Ms. Lynch. Certainly, Senator, I am not aware of the
    Department of Homeland Security's budget requests before this
    body or Congress in general. With respect to the Department of
    Justice, I had been involved in reviewing the budget as part of
    my work on the Attorney General's Advisory Committee, and
    certainly during sequestration spent a great deal of time
    looking at the budget to ensure that we did maintain the
    appropriate resources to carry out our core mission of
    protecting the American people within the constraints that were
    placed upon us at that time. And it is my understanding that,
    with respect to budget requests that the Department of Justice
    makes, that those requests do include information about goals
    and priorities across the board as a way of explaining to
    Congress why specific resources are needed.
        Senator Cornyn. So you do need more money?
        Ms. Lynch. I would probably join all of my agencies in
    saying that, sir, but I cannot speak for them. Senator Cornyn.
    That is what I thought. Thank you.
        Chairman Grassley. Thank you, Senator.
        Now Senator Durbin and the next Republican will be Senator
    Lindsey Graham.
        Senator Durbin. Ms. Lynch, thank you for being here. I will
    be objective, although I am deferential to women named Loretta.
    I have been married to one for 47 years. And I am glad that you
    are here today.
        When your father lifted you up on his shoulders, at that
    Greensboro church, you were a young girl at the time, but a
    witness to a moment in history that changed America forever and
    literally changed your life. There was no way you could know
    that.
        One of the central issues that was raised during the civil
    rights movement was the right to vote. A right of which Chief
    Justice Roberts said, sitting in that very same place, and
    quoting a Court decision, ``it's preservative of all rights.''
    We are now in a unique position, some 50 years later, about to
    celebrate the 50th anniversary of the Voting Rights Act. The
    Supreme Court in Shelby County v. Holder struck down major
    provisions of the Voting Rights Act, and Congress, which
    historically had renewed the Voting Rights Act on a bipartisan
    basis, is now, with few rare exceptions, split along partisan
    lines as to whether or not there will be a renewal of some
    sections.
        We are finding States across the Nation, many States, that
    are changing the requirements for voting. I chaired the
    Constitution Subcommittee of Judiciary. I took the Subcommittee
    to public hearings in Ohio and Florida where there were new
    restrictions placed on voting by State legislatures. I called
    the election officials of both political parties in those
    States and asked them if there was any evidence of voter fraud
    or voter abuse that led to these legislative changes and to a
    person they said virtually none.
        What has happened is that the Department of Justice has
    stepped in--in some cases that they considered to be extreme
    and unfair--and worked to stop the implementation of the State
    laws that restricted the right to vote.
        As you embark on the possibility of making that decision as
    Attorney General, how do you view the State voting rights in
    America today and what do you view is your responsibility
    should you be our next Attorney General?
        Ms. Lynch. Thank you, Senator. Certainly I believe that the
    right to vote is the cornerstone of a free democracy and one
    that every citizen has the right and, in fact some would argue,
    the obligation to exercise.
        With respect to how voting rights are being handled in the
    country now, I think we are in a time of great debate over
    these issues. Those are important issues and I am certainly
    open to hearing all sides of it.
        With respect to how--and I also think that every State does
    have the responsibility and obligation to regulate the voter
    rolls and to ensure that the vote is carried out freely and
    openly and fairly.
        And I do believe that that is the goal of many of our
    elected officials, if not most of our elected officials, who
    deal with these issues every day.
        The concerns that are raised, Senator, are when acts that
    are taken with a goal towards protecting and preserving the
    integrity of the vote act in a different way and act to
    suppress the vote or in some way prevent people from exercising
    the franchise.
        I would hope that at the first outset, through the
    political discourse and discussion, that we could have a
    conversation about that and come to a resolution of practices
    and procedures that would ensure the right to vote for all
    citizens while still protecting the integrity of everyone's
    ballot.
        Absent that, I believe that when laws are passed, the
    Department of Justice has to look very carefully at their
    impact in making a decision as to how to proceed. Certainly
    there have been instances when voter ID laws have received
    approval from the Department under what was previously known as
    preclearance because they sought to simply regulate and protect
    the ballot as opposed to act in a different way.
        But where there is an indication that the vote will somehow
    be harmed, I believe the Department of Justice certainly has
    the obligation to review that matter, to look carefully at all
    of the facts in evidence, and then proceed accordingly.
        Senator Durbin. I could not agree with you more, and I find
    it ironic and painful that at this moment in our history, as we
    celebrate with the movie ``Selma'' and talk about the 50-year
    anniversary of the Voting Rights Act, that States, many States,
    on a systematic basis are making it more difficult for
    Americans to vote, without any evidence of voter fraud to back
    up those changes. In one Southern State, it is estimated that
    some 600,000 voters were basically precluded from voting in an
    election because of new voter ID requirements. In that same
    State, a 93-year-old veteran was turned away, a 70-year-old
    doctor turned away, people who were proud to vote, wanted to
    vote, turned away by new laws. These were people who had a
    right to vote, and it troubles me that, amidst all the
    celebration of the civil rights movement, we are finding a
    reversal of the most fundamental principle in preserving that
    right to vote.
        I appreciate what you had to say about it.
        I would say a word about the Smarter Sentencing Act, which
    I introduced with Senator Lee from Utah, who may be still here
    today, a bipartisan measure with 32 cosponsors, in an effort to
    take a look at the reality that not only does the United States
    have more prisoners per capita than any other nation, but in
    many instances, lengthy prison sentences do not serve the cause
    of justice and deny us resources we need to keep our
    communities safe.
        Attorney General Holder, who is not held in the highest
    regard by some Members of this Committee, has been an outspoken
    supporter of this bipartisan measure, and I hope that you would
    consider supporting it, too, although I will not put you on the
    spot to do that without giving you a chance to look at it.
        Let me add one other element. As Chairman of the
    Constitution and Human Rights and Civil Rights Committee, which
    was its name before this new Congress, we also had a hearing on
    solitary confinement. It turns out the United States in its
    prison system has more prisoners in solitary confinement than
    any other nation. And we had testimony from those who had spent
    10 years on death row in solitary confinement in Texas, an even
    longer period of time in solitary confinement on death row in
    the State of Louisiana and ultimately exonerated. They were not
    found to be guilty.
        The devastating impact that has on the human mind and
    spirit for so many of these people who serve time in solitary
    confinement, many of whom are going to be ultimately released,
    is something the Federal Bureau of Prisons is now addressing.
        You have been a prosecutor for many years. What is your
    view when it comes to incarceration and segregation or solitary
    confinement?
        Ms. Lynch. Senator, you raise important issues about the
    management of our prison system, which are charged with being
    the ultimate repository for those that we have concluded are
    seeking to harm Americans, but are also charged with doing so
    in a manner that is constitutional, that is effective, and that
    protects the safety of both the inmates and those who are
    guarding them.
        So these are balances that we have to strike, and I take
    the view that certainly as we look at these issues, one of the
    benefits, I believe, of discourse like this, and that I hope to
    have going forward with this Committee, is continued discussion
    on those issues.
        There are a number of municipalities, for example, that are
    looking at this very same issue. New York City is looking at it
    with respect to juvenile detention and looking to remove
    solitary confinement as an option for juvenile detention as
    well based on many of the similar studies that you are talking
    about.
        I believe we have to look at those studies. We have to
    listen to the evidence that comes before us and make the best
    determination about how to handle what can be a dangerous
    prison population, but how to handle that prison population in
    a way that is both constitutional and effective.
        Senator Durbin. Thank you very much.
        Thank you, Mr. Chairman.
        Chairman Grassley. Senator Graham is next.
        Senator Graham. Thank you. Thank you very much, Ms. Lynch,
    and congratulations on being chosen by the President. This is
    truly an honor, I am sure.
        Do you support the death penalty?
        Ms. Lynch. Senator, I believe that the death penalty is an
    effective penalty. In fact, my office most recently was able to
    achieve----
        Senator Graham. How about ``yes''?
        Ms. Lynch. A death verdict there.
        Senator Graham. Yes.
        Ms. Lynch. So we have sought it, yes.
        Senator Graham. Okay. That is good. Well, that is good from
    my point of view. I do not know about other people.
        Sequestration. Have you had a chance to look at the impact
    sequestration will create on your ability to defend this Nation
    as Attorney General, all those who work for you?
        Ms. Lynch. Senator, with respect to sequestration, I have
    had an opportunity to review that matter very closely through
    my work on the Attorney General's Advisory Committee and also
    as United States Attorney dealing with the budgetary limits
    that came down with the implementation of sequestration. As you
    are familiar with the history perhaps far more than I, it did
    constrain the Federal budget greatly about 18 months ago.
        Senator Graham. Is this a fair statement: ``If Congress
    continues to implement sequestration, it will devastate the
    Department of Justice's ability to effectively defend this
    country''?
        Ms. Lynch. Senator, I believe that that is not only a fair
    statement, but it is one that warrants serious discussion about
    how we manage budgets in a responsible manner, which I know is
    important to this body, but also giving us the tools that we
    need to protect the American people.
        Senator Graham. In your time in this business, have you
    ever seen more threats to our country than are presented today?
        Ms. Lynch. Certainly throughout my career as a prosecutor
    and U.S. Attorney, we are seeing an increased number and
    probably the highest number of threats that I have seen, not
    just from terrorist activity but the increased activity in
    terms of cybercrime is one that has not only increased
    numerically but qualitatively in the type of threat that we
    face.
        Senator Graham. So we need to up our game in the
    cybersecurity area fairly quickly. Do you agree with that?
        Ms. Lynch. We do need to make sure we have the resources we
    need to keep up with cybercrimes and also to get ahead of these
    criminals in terms of detection, in terms of prevention, even
    before we get to the apprehension of these criminals.
        Senator Graham. And there is just not criminals. Terrorists
    also are in the cyberbusiness. Is that correct?
        Ms. Lynch. Senator, you have outlined perhaps the greatest
    fear of any prosecutor--it is that the combination of a
    cyberattack being carried out on behalf of a terrorist entity
    is one that we take great pains to prevent, to detect, and to
    disrupt. But it is certainly an emerging threat, and it calls
    for resources beyond just mere personnel, but in terms of our
    own technology also.
        Senator Graham. Does it also cry out for Congress to take a
    comprehensive approach to our cyberproblems and pass
    legislation that would modernize our ability to deal with this
    threat?
        Ms. Lynch. Certainly a comprehensive approach is necessary.
    In my experience both in the Eastern District of New York and
    in talking to my colleagues, all of us are struck by the
    prevalence of cyberissues in every type of case that we
    prosecute now, much more so than even 5 or 10 years ago. And so
    we must have not only a comprehensive approach but one that
    allows Government to work with private industry as well to come
    up with ways to best protect us against this threat.
        Senator Graham. Could you give us an estimate--if not now,
    in the future--what it would cost to deport 11 million people?
        Ms. Lynch. Certainly, Senator, I can--I would not be able
    to give you that estimate now, and I would probably have to
    reach out to the Department of Homeland Security who would be
    charged with that particular action to see if they could
    provide that information to you.
        Senator Graham. Okay. Do you have a role in the deportation
    of people who are here illegally in the Department of Justice?
    Do you have any role at all there?
        Ms. Lynch. Well, that role is initially--in terms of
    deportation, the role is initially handled by the Department of
    Homeland Security. There are the immigration courts through
    which individuals can seek either asylum or redress from
    deportation orders that are handled by the Department of
    Justice. But that would be simply actually further along in the
    process.
        Senator Graham. But that is part of the process.
        Ms. Lynch. Yes, it is.
        Senator Graham. If you could maybe give us an estimate of
    what it would take to deport 11 million people from your lane,
    call the Department of Justice and see what they say, I think
    it would be instructive to us to see what the bill actually
    would be.
        Now, do you think the National NSA Terrorist Surveillance
    Program is constitutional as it is today?
        Ms. Lynch. I am sorry?
        Senator Graham. Do you think the NSA Terrorist Surveillance
    Program that we have in effect today is constitutional?
        Ms. Lynch. Senator, I believe that it is constitutional and
    effective. I know that there are court challenges to it, and
    certainly we will abide by those court regulations.
        Senator Graham. Right.
        Ms. Lynch. But it has been a very effective tool in
    managing----
        Senator Graham. But you are okay with it being
    constitutional from your viewpoint?
        Ms. Lynch. Certainly constitutional and effective.
        Senator Graham. Thank you.
        Marijuana. There are a lot of States legalizing marijuana
    for personal consumption. Is it a crime at the Federal level to
    possess marijuana?
        Ms. Lynch. Marijuana is still a criminal substance under
    Federal law, and it is still a crime not only to possess but to
    distribute under Federal law.
        Senator Graham. Under the doctrine of preemption, would the
    Federal law preempt States who are trying to legalize the
    substance?
        Ms. Lynch. Senator, I think you raise very important
    questions about the relation of the Federal criminal system
    with the States and their ability to regulate criminal law that
    they also have, as there is concurrent jurisdiction, and in
    terms of matters in which citizens of various States have
    voted.
        With respect to the marijuana enforcement laws, it is still
    the policy of the administration and certainly would be my
    policy, if confirmed as Attorney General, to continue enforcing
    the marijuana laws, particularly with respect to the money-
    laundering aspect of it, where we see the evidence that
    marijuana, as I have noticed in cases in my own district,
    brings with it not only organized crime activity but great
    levels of violence.
        Senator Graham. Do you know Michele Leonhart, the DEA
    Administrator? I do not know if I said her name right.
        Ms. Lynch. She is the Administrator of the Drug Enforcement
    Administration.
        Senator Graham. Have you ever had a discussion with her
    about her views of legalizing marijuana?
        Ms. Lynch. Michele and I have not had that discussion,
    although we have spoken on any number of other issues.
        Senator Graham. Could you maybe have that discussion and
    report back to me as to what the results were?
        Ms. Lynch. Certainly, Senator. I look forward to speaking
    to not just Ms. Leonhart but with you on this issue.
        Senator Graham. On August 29, 2013, I think, Deputy
    Attorney General James M. Cole advised all U.S. Attorneys that
    enforcing marijuana laws against those that are in compliance
    with State marijuana laws would not be a priority of the DOJ.
    Did you get that memo?
        Ms. Lynch. All U.S. Attorneys received that memo, as did I.
        Senator Graham. Do you think that is a good policy?
        Ms. Lynch. I believe that the Deputy Attorney General's
    policy seeks to try and work with State systems that have
    chosen to take admittedly a different approach from the Federal
    Government with respect to marijuana and determined the most
    effective way to still pursue marijuana cases consistent with
    the States and the choices that they have made. The Deputy
    Attorney General's policy, as I understood it and as it has
    been implemented, still requires Federal prosecutors to seek
    prosecution of marijuana cases, particularly where we have
    situations where children are at risk, where marijuana is
    crossing State lines, particularly where you have marijuana
    being trafficked from a State that has chosen a legal framework
    into a State that has not chosen a legal framework and the
    attendant harms therein, as well as those who are driving under
    the influence of this.
        A great concern certainly within the Department and those
    of us who are looking at these issues is the availability of
    the edible products and the risk of those falling into the
    hands of children and causing great harm there.
        Senator Graham. If a State is intending to try to legalize
    personal consumption at a small level of marijuana, what would
    your advice be to that State?
        Ms. Lynch. Well, certainly I am not sure that if a State
    were to reach out to the Department for its views--and I do not
    know that that has happened or what advice has been given, but
    certainly I believe the Department would have an obligation to
    inform them of the current Federal status of narcotics laws and
    the Department's position that the Federal narcotics laws will
    still be enforced by the Department of Justice.
        Senator Graham. In 2006, you signed an amicus brief
    supporting Planned Parenthood's opposition to the partial-birth
    abortion ban. Is that correct?
        Ms. Lynch. Yes, I was one of a number of former Department
    of Justice officials, although the amicus brief that we signed
    was focused on the issue of the facial issues of the law and
    how it might impact the perception of law enforcement's
    discretion and independence.
        Senator Graham. Okay. The only reason I mention that is
    that if there is a Republican President in the future and an
    Attorney General nominee takes an opposite view on an issue
    like abortion, I hope our friends on the other side will
    acknowledge it is okay to be an advocate for a cause as their
    lawyer. That does not disqualify you from serving.
        Same-sex marriage. The courts are wrestling with this issue
    right now.
        Ms. Lynch. I am sorry?
        Senator Graham. Same-sex marriage, this may go to the
    Supreme Court very soon. If the Supreme Court rules that same-
    sex marriage bans are unconstitutional, it violates the U.S.
    Constitution for a State to try to limit marriage between a man
    and a woman, that is clearly the law of the land unless there
    is a constitutional amendment to change it. What legal
    rationale would be in play that would prohibit polygamy? What
    is the legal difference between a State--a ban on same-sex
    marriage being unconstitutional but a ban on polygamy being
    constitutional? Could you try to articulate how one could be
    banned under the Constitution and the other not?
        Ms. Lynch. Well, Senator, I have not been involved in the
    argument or analysis of the cases that have gone before the
    Supreme Court, and I am not comfortable undertaking legal
    analysis without having had the ability to undertake a review
    of the relevant facts and the precedent there. So I certainly
    would not be able to provide you with that analysis at this
    point in time, but I look forward to continuing the discussions
    with you.
        Chairman Grassley. Before the Senator from Rhode Island
    asks his questions, this would be my plan, and you tell me if
    this will give you enough time. The Rhode Island Senator,
    Senator Lee, and then Senator Klobuchar, that will take us to
    about 12:45. Then I was thinking of coming back about 1:30.
        Ms. Lynch. Thank you, Senator.
        Chairman Grassley. Is that going to give you enough time?
        Ms. Lynch. Yes, indeed. Thank you, Senator.
        Chairman Grassley. Okay. The Senator from Rhode Island.
        Senator Whitehouse. Thank you, Chairman.
        Ms. Lynch, welcome to the Committee and congratulations on
    your nomination. I look forward to working with you on a
    considerable number of issues as we go forward.
        Since there has been a significant amount of commentary
    about the President's immigration measures, the Ranking Member
    has asked me to put into the record letters from law
    enforcement leaders in Ohio, Utah, Iowa, Indiana, and Wisconsin
    supporting the President's policies and concluding, ``While the
    executive reforms improve a broken immigration system, they can
    achieve only a fraction of what can be accomplished by broad
    congressional action. We continue to recognize that what our
    broken system truly needs is a permanent legislative solution
    and urge Congress to enact comprehensive immigration reform
    legislation.''
        There is a similar letter from the member organizations of
    the National Task Force on Sexual and Domestic Violence, and a
    similar statement for the record of Stan Marek of Texas, the
    president and CEO of the Marek Family of Companies. If I may
    ask unanimous consent that those be made a part of the record?
        [Pause.]
        Senator Whitehouse. Without objection.
        [The information appears as submissions for the record.]
        Senator Whitehouse. There has also been considerable
    commentary about Attorney General Holder in a hearing at which
    he does not have the opportunity to defend himself, and it is
    my view that a significant amount of that commentary would not
    withstand his ability to defend himself if he were here. So let
    me say in response to that, there are legal arguments and
    policies that fall outside a particular political ideology.
    That does not make them outside the mainstream, and it does not
    politicize a Department to make those arguments or pursue those
    policies.
        I would argue actually that it is the effort to constrain
    the Department within that ideology that would be politicizing.
        I would further note, as a former United States Attorney,
    that the Department that Attorney General Holder inherited was
    in a very grave state of disarray, and that is not just a
    matter of opinion. The Office of Legal Counsel wrote opinions
    that were so bad, so ill-informed, so ill-cited to the case law
    that pertained that when they were finally exposed to peer
    review, they were widely ridiculed and ultimately withdrawn by
    the previous administration.
        We witnessed efforts to manipulate United States
    Attorneys--and I know that you are one, Ms. Lynch--that caused
    a very public rebellion among sitting U.S. Attorneys at the
    time and that drew in past U.S. Attorneys appointed by both
    Republican and Democratic Presidents. We were exposed to hiring
    practices within the Department that were on their face overtly
    political and had political litmus tests for hiring, a first in
    the Department's history--it had not gone down that way
    before--and ultimately a series of other issues as well as
    those led to the resignation of the Attorney General of the
    United States.
        So it is easy to critique Attorney General Holder and blame
    him for politicizing the Department, but I think history's calm
    and dispassionate judgment will reflect that the Attorney
    General actually brought the Department back from a place where
    it had been, sadly, politicized. And I can say firsthand that a
    lot of my U.S. Attorney colleagues, both from Republican and
    Democratic administrations, were very, very concerned about
    what was happening to the Department back then.
        I should not waste the time of this hearing on that, but
    with all the things that have been said about Attorney General
    Holder, without him having the opportunity to defend and rebut,
    I wanted to say that.
        These are some of the areas I think we need to work on
    together, Ms. Lynch, when you are confirmed, as I hope you will
    be.
        Senator Graham raised the issue of cybersecurity, and he
    has been an extraordinarily helpful and forward-leaning Member
    of the Senate on protecting our country from the dangers of
    cyberattacks, whether ordinary criminal activity or the theft
    of intellectual property wholesale on behalf of Chinese
    industries or the really dangerous threat of laying in the
    cybersabotage traps that can be detonated later on in the event
    of a conflict.
        I am concerned about the structure within the Department
    for handling cybersecurity. At an investigative level, it is
    spread across primarily the FBI, secondarily the Secret
    Service, and to a degree Homeland Security. Within the
    Department it falls under the rubric both of the Criminal
    Division and of the National Security Division.
        And I hope that with the assistance of the Office of
    Management and Budget, you and I and the Office of Management
    and Budget and other interested Senators can continue a
    conversation about what the deployment of resources and
    structure should look like against the cybersecurity threat in
    the future. Will you agree to participate in such a process?
        Ms. Lynch. Certainly, Senator. I think you have outlined an
    important issue, and if confirmed as Attorney General, I will
    look forward to working with you and all of the relevant
    partners on this Committee and throughout Congress in making
    sure that the Department is best situated to handle this
    growing threat.
        Senator Whitehouse. There is considerable bipartisan
    legislation in the Senate on this subject, and I hope it is one
    where we can get something serious accomplished in the months
    ahead.
        Another area where there is considerable bipartisan
    legislation is on sentencing reform. Senator Durbin mentioned
    his and Senator Lee's legislation that is at the front end, at
    the sentencing end. Senator Cornyn and I have an almost
    parallel bill that relates to the end of the sentence and how
    to encourage incarcerated people to get the type of job
    training, drug and alcohol rehabilitation, anger management,
    mental healthcare, family reconciliation, job training,
    whatever it is that they need, so that when they are put back
    into society, they have less chance of going back to a life of
    crime, of recidivating, as they say.
        I think we have made a lot of progress on that, and I think
    we have very good legislation, and I hope that you and the
    Department will continue to be supportive of our efforts.
        Ms. Lynch. Certainly, Senator. You have raised I think the
    next challenge as we look at how to manage our prison
    population and the issue of crime, which is, How do we help
    people who are going to be released return to the communities
    from which they came and become productive citizens as opposed
    to returning to the prior behavior, criminal behavior that not
    only landed them in prison but creates new victims? And that
    will certainly be an important part of my focus.
        Within the Eastern District of New York, we are very strong
    participants in reentry programs that are sponsored by our
    colleagues at the Brooklyn District Attorney's Office in one of
    the most difficult neighborhoods in my district, in
    Brownsville. We work extensively with those reentry efforts,
    and those reentry efforts work exactly as you said in focusing
    on job training and focusing on building skills so that those
    coming out of prisons can become productive members of society
    as opposed to those who will continue to harm others in
    society.
        So you certainly have raised very important issues, and I
    look forward to continuing the discussion with you and people
    on this Committee and throughout this body on those issues.
        Senator Whitehouse. Thank you.
        Another piece of legislation we will be working on, thanks
    to the courtesy and care of our Chairman, Senator Grassley, is
    a reauthorization of the Juvenile Justice and Delinquency
    Prevention Act. It has been now 12 years since its last
    reauthorization. And I appreciate very much that the Chairman
    has been willing to work on this and has made it one of the
    priorities for this Committee. Obviously, the way in which
    juveniles are treated in our corrections system and are
    detained have been important issues for the Justice Department,
    and I would ask again for your cooperation and active support
    of our process going forward to reauthorize the JJDPA.
        Ms. Lynch. Certainly, Senator. I think that the way in
    which we handle juveniles within the criminal justice system is
    something that is of great concern to me in terms of both my
    practice in the Eastern District of New York and also talking
    to my colleagues, the other U.S. Attorneys across the country
    who face these issues.
        I believe it certainly is incumbent upon all of us to look
    at the latest research on issues of how juveniles develop and
    they manage themselves in certain environments and always be
    open to reviewing those.
        I look forward to working with you and others in discussing
    that statute.
        Senator Whitehouse. In my last seconds, you and I have both
    had the experience of being United States Attorneys and I
    suspect we have both had the experience of finding people who
    were targets of our criminal enforcement efforts who, if we
    look back into their pasts, might have avoided our attention
    had they managed their drug or alcohol addiction----
        Ms. Lynch. Certainly.
        Senator Whitehouse [continuing]. Or gotten the mental
    health treatment that they needed. And it is sort of a--I guess
    it is almost--it is a societal sorrow when somebody like that
    does not get the treatment that they need and ends up in the
    criminal justice system and it is a great burden for the
    taxpayer.
        We have other legislation, the Comprehensive Addiction
    Recovery Act, that I hope you will also work with us on to try
    to make sure that where we can intervene with appropriate
    addiction treatment and mental health treatment, we can steer
    people to a more appropriate setting rather than burden the
    criminal justice system with what is often an inappropriate
    response to their conduct and to their condition.
        Ms. Lynch. Certainly, Senator. In my own district, our
    court has been very forward-thinking and very effective in
    setting up diversion programs and a pre-trial opportunity
    program that has provided great support for people and enabled
    them to provide treatment and learn to become productive
    members of society and, therefore, escape being trapped into a
    spiral of criminal behavior and the results thereof.
        Chairman Grassley. Thank you.
        Senator Whitehouse. Thank you, Mr. Chairman.
        Chairman Grassley. Thank you very much. And now Senator
    Lee.
        Senator Lee. Thank you, Mr. Chairman. And thank you, Ms.
    Lynch, for joining us today. Thanks for your service to our
    country.
        I also appreciated our visit recently when you came to my
    office and I am grateful to you for your support for sentencing
    reform. The bipartisan legislation that I am working on with
    Senator Durbin that he referenced a few minutes ago is
    important and I appreciate your views on that as well.
        I want to speak with you briefly going back to
    prosecutorial discretion. As a former prosecutor, I assume you
    would agree with me that there are limits to prosecutorial
    discretion in the sense at least that it is intended to be an
    exception to the rule and not to swallow the rule itself.
        Would you agree with me that far?
        Ms. Lynch. Certainly, sir. I believe that in every
    instance, every prosecutor has to make the best determination
    of the problems presented in their own area, in my case, in my
    district, and set priorities and within those priorities,
    exercise discretion.
        Senator Lee. Right. Prosecutors inevitably have limited
    resources and so it is understandable why they would choose,
    when they have got to prioritize, to perhaps put more resources
    into punishing, for example, bank robberies than they do into
    punishing pickpocketers, and perhaps they might put more
    resources into going after pickpocketers than they do going
    after people who exceed the speed limit.
        But at some point there are limits to this and that does
    not mean that it would be okay, that it would be a proper
    exercise of prosecutorial discretion to issue permits for
    people to speed. Right?
        Ms. Lynch. Certainly, sir. I think that if a prosecutor
    were to come to the view that they had to prioritize one crime
    over another, you would always still want to retain the
    ability. Even if it was an area that was not an immediate
    priority, if, for example, it became one because a particular
    neighborhood was being victimized or, again, to use your issue
    of speeding, there were deaths resulting from that, you would
    want to have the ability to still, if you could, take resources
    and focus on that issue. It might not be the first priority,
    but you would want to have the ability to go back and deal with
    that issue.
        Senator Lee. And for that reason, prosecutorial authorities
    or law enforcement authorities typically do not go out and say
    we are only going to punish you for a civil violation involving
    a traffic offense if you speed and then it results in an
    accident with injuries. They leave open the real possibility,
    indeed, the likelihood that someone can and will be brought to
    justice in one way or another for any civil violation they
    commit while speeding.
        Ms. Lynch. Well, certainly, I cannot speak to all law
    enforcement agencies. I know that depending upon the agency,
    sometimes the priorities are known. Sometimes they are
    expressed. Every office has guidelines. Certainly, the law
    enforcement agencies are aware of certain guidelines in terms
    of, for example, a dollar amount involving certain types of
    crimes.
        Senator Lee. But if someone went out and said I am going to
    issue a permit to someone saying that they may speed, saying
    they may go up to 100 miles an hour without receiving a ticket,
    unless that person were also in charge of making the law in
    that jurisdiction, that would be a usurpation of the system by
    which our laws are made. Would you agree with that?
        Ms. Lynch. Again, without knowing more about it, I am not
    able to respond to the hypothetical. It certainly does not
    sound like something that a law enforcement officer would be
    engaged in, but, again, without knowing more of the facts, I am
    not able to really respond to your hypothetical.
        Senator Lee. Okay. Thank you. Let us shift gears for a
    minute. Do you agree that citizens and groups of citizens
    should not be targeted by Government, should not be the
    recipients of adverse action by the Government based on their
    exercise of their First Amendment rights?
        Ms. Lynch. Certainly, I think that the First Amendment is
    one of the cornerstones of a free society and I believe that
    our jurisprudence has set forth great protections for
    individuals, as well as groups, in the exercise of their First
    Amendment rights to make sure that they are protected and not
    targeted.
        I also would say that, certainly, as a career prosecutor
    and U.S. Attorney, there is really no place for bias or
    personal view in terms of how we approach the types of crimes
    that we pursue.
        Senator Lee. And presumably you would say the same with
    respect to someone's exercise of their rights under the Fourth
    Amendment or the Fifth Amendment or the Sixth or the Seventh or
    the Eighth. Under any of those protections, somebody should not
    be punished by Government for exercising their rights under
    those provisions of the Constitution.
        Ms. Lynch. Certainly, I believe that there are safeguards
    in place to prevent that. I think we always certainly have to
    balance that with some--with the possibility of an extreme
    situation in which we may have to move quickly, for example, to
    protect someone or there is an imminent threat therein. But I
    believe that there are protections set up for that purpose.
        Senator Lee. Second Amendment rights, as well, presumably
    then. Right?
        Ms. Lynch. I believe that certainly the Supreme Court has
    set forth clarity on this issue. And so, therefore, that--
    regardless of the amendment--that certainly that is a protected
    right.
        Senator Lee. Are you aware that there is a program called
    Operation Choke Point within the Department of Justice and that
    through this program the Department of Justice and some other
    Federal law enforcement agencies have on some occasions put
    financial pressure on legal businesses, including hardworking
    Americans who happen to be involved in the business of selling
    firearms and ammunition, by essentially telling banks not to do
    business with them?
        Ms. Lynch. I am generally familiar with the name Operation
    Choke Point and my understanding of it with respect to the
    Department of Justice's current work--again, I have not been
    involved in either the implementation or the creation of it.
    But my general understanding of it is that it looks to target
    financial institutions that are involved in perpetrating frauds
    upon consumers and where there might be a financial institution
    that is facilitating, for example, consumer bank accounts being
    looted or consumers essentially losing their bank accounts,
    that that is the target of that.
        Again, I am not familiar enough with the specifics of it to
    know about the underlying businesses that the transaction might
    have originated from, but that is my understanding of the
    program.
        Senator Lee. Okay. I assume it is safe to assume that
    should you be confirmed, you will work with me to make sure
    that legitimate law-abiding Americans are not targeted for
    their exercise of their Second Amendment rights.
        Ms. Lynch. On that and any other issue of importance to
    you, Senator. I look forward to hearing your concerns and
    working with you on them.
        Senator Lee. Thank you. Thank you. I want to talk about
    civil forfeiture for a minute. Do you think it is fundamentally
    just and fair for the Government to be able to seize property
    from a citizen without having to prove that the citizen was
    guilty of any crime and based solely on a showing that there
    was probable cause to believe that that property was in some
    way used in connection with a crime?
        Ms. Lynch. Senator, I believe that civil forfeiture, civil
    and criminal forfeiture, are very important tools of the
    Department of Justice, as well as our State and local
    counterparts through State laws, in essentially managing or
    taking care of the first order of business, which is to take
    the profit out of criminal activity.
        With respect to civil forfeiture, certainly as implemented
    by the Department, it is done pursuant to supervision by a
    court. It is done pursuant to court order and I believe that
    the protections are there.
        Senator Lee. What if you just ask the average person on the
    street whether they thought the Government could or should be
    able to do that, should the Government be able to take your
    property absent a showing that you did anything wrong,
    thereafter requiring you, as a condition for getting your
    property back, whether it is a bank account that has been
    seized or frozen, whether it is a vehicle that has been seized,
    that you would have to go back and prove your innocence?
        So you are guilty, in essence, until proven innocent, at
    least guilty in the sense that your property is gone. Do you
    think your average citizen would be comfortable with that?
        Ms. Lynch. Well, I certainly cannot speak in terms of what
    the average citizen would or would not be aware of there. I
    certainly understand that there has been a lot of discussion
    and concern over asset forfeiture as a program as expressed by
    a number of people.
        Senator Lee. And particularly at the State level, such that
    some States have adopted, in response to a pretty widespread
    citizen outcry, laws significantly restricting the use of civil
    forfeiture proceedings for that very reason, which leads to why
    I raise this with you. It is my understanding that the
    Department of Justice has, in many instances, been used as a
    conduit through which law enforcement officials at the State
    and local level can circumvent State laws restricting the use
    of civil forfeiture within the State court system.
        In other words, where, under the State courts, the State
    law established system, that kind of forfeiture is prohibited,
    people can go through the Department of Justice. The Department
    of Justice will take out a fee, maybe 20 percent of the value
    of the assets seized, and then those can be returned. It is a
    process known as adoption.
        Do you not think most Americans would find that concerning
    if the Federal Government is facilitating efforts to circumvent
    State laws that are designed to prohibit the very thing that
    they are doing?
        Ms. Lynch. I think that a number of people would have
    questions about how the Department of Justice manages its asset
    forfeiture program, and my understanding is that those
    questions have been raised about various aspects of it.
        My understanding is that the Department is undertaking a
    review of its asset forfeiture program, and certainly, as U.S.
    Attorney, I am aware of the fact that the adoption program that
    you have just described, which did raise significant concerns
    from a number of parties, has actually been discontinued by the
    Department--that is the guidance that we have recently
    received--with some exceptions for things like items of danger,
    explosives and the like.
        But it is part of an ongoing review of the asset forfeiture
    program and certainly, should I be confirmed, I look forward to
    continuing that review.
        I would also say, Senator, that I look forward to
    continuing these discussions with you as you express concerns
    and interests on behalf of constituents or others as an
    important part of the Department being as transparent as
    possible in explaining how it operates.
        Asset forfeiture is a wonderful tool. We return money to
    victims. We take the profit out of crime. But as with
    everything that we do, we want to make sure that we are being
    as responsive as possible to the people that we are serving.
        Senator Lee. Thank you. I look forward to those additional
    discussions. And I see my time has expired.
        Thank you very much.
        Chairman Grassley. Thank you, Senator Lee. And now Senator
    Klobuchar.
        Senator Klobuchar. Thank you very much. And thank you so
    much to you. I understand I am the only thing that stands
    between you and your lunch and this entire room and their
    lunch. We will have a good 10 minutes here. Your dad seemed to
    enjoy that one.
        [Laughter.]
        Senator Klobuchar. I think everyone knows you have an
    impressive resume and the one thing that has not been brought
    up was something I actually read this weekend in the profile
    about you, as I was thinking about this old saying we have in
    our household that the obstacles on life's path are not just
    obstacles, they are the path. And no one represents that better
    than you, Loretta Lynch.
        When I read about the story of you scoring so well on a
    test in elementary school that they did not believe that you
    had taken that test and then you took it again and scored even
    higher. The obstacles are the path. Or the time that you became
    the valedictorian of your class and the school officials said
    that it would be too controversial if you were the only
    valedictorian, and so they added some other students to be
    valedictorian.
        I was thinking of all the Senators in this building: We may
    have more than a few valedictorians and I do not think that
    ever happened to them.
        So I thank you for your courage and your perseverance and
    your parents' courage and perseverance that brought you to us
    today.
        I was going to start with a question. I know you touched on
    it with Senator Schumer. As you know, I am a former prosecutor.
    My office had about 400 people. We worked really well with the
    U.S. Attorney's Office. Some of the U.S. Attorneys you know
    that I worked with, Todd Jones, who is now the head of our
    Bureau of Alcohol, Tobacco and Firearms, and then also Tom
    Heffelfinger, who was the U.S. Attorney under Bush, and now we
    have a guy named Andy Luger, who you are also aware of. And it
    has been very important, that relationship that we have had
    with local prosecutors and the U.S. Attorney's Office.
        I wondered if you would talk a little bit more about how
    you would view that as the Attorney General in terms of how you
    would like your U.S. Attorneys to work with the local
    prosecutors, who, as you know, can be very inundated with a lot
    of cases. And sometimes we would view the U.S. Attorney's
    Office as getting the luxury to spend a lot of time on cases
    while we would be handling literally tens of thousands of cases
    coming in our doors.
        Ms. Lynch. Thank you, Senator. You touch upon an important
    part of my practice. One of the benefits of being the U.S.
    Attorney, as you have noted, is getting to know the other
    prosecutors, not just my fellow U.S. Attorneys, but also the
    numerous State and local prosecutors with whom we work so well.
        I am so privileged in Brooklyn to have a strong
    relationship with the District Attorneys in my district, in all
    five counties, but also even outside of my district into
    Manhattan, into the Bronx and beyond.
        We talk often on issues affecting our community. We talk
    often on issues affecting the entire district. I was privileged
    to be able to share starting my prescription drug initiative
    with the Brooklyn District Attorney's Office and also work
    closely with District Attorneys in Nassau and Suffolk County in
    handling the problem of prescription drug abuse, which has
    spiked, unfortunately, and led to violence and, in fact, deaths
    on Long Island.
        Senator Klobuchar. I think you know that the stats lately
    are that four out of five of heroin users started with
    prescription drugs and then they turned to heroin. I think
    people are shocked by that, but you see that connection with
    the heroin, as well.
        Ms. Lynch. We do, indeed, because of the opioid substance
    of both drugs and we are, in fact, seeing a resurgence in
    heroin not just in my district, but, unfortunately, across the
    country.
        This problem, like so many others, is one that must be
    dealt with in a cooperative and collaborative manner and I am
    incredibly proud to say that all of my United States Attorneys
    colleagues take very seriously the opportunity and the
    privilege to work with our State and local counterparts in
    crafting prescription drug initiatives, heroin initiatives,
    along with our violent crime initiatives.
        We work closely with our State and local counterparts to
    determine where is the best place for a case to be brought. We
    look at things like the type of sentence that can be achieved
    or the type of evidence that is admissible in the different
    proceedings, and we cannot have those discussions without
    building on a positive working relationship, and it has really
    been a hallmark of this U.S. Attorney community.
        Should I be confirmed as Attorney General, I intend to draw
    upon that strength of my U.S. Attorney colleagues, as well as
    my State and local counterparts throughout the country. People
    who are at the ground zero of these problems often come up with
    the best solutions. They pull in the healthcare community. They
    pull in parents. They pull in community leaders and they come
    up with a solution that works that can often be replicated in
    other places.
        I have seen that happen with my U.S. Attorney colleagues
    particularly in the area of heroin abuse and some of the
    initiatives that they are working on, as well.
        So if confirmed as Attorney General, I intend to rely very
    heavily on my prosecutorial colleagues.
        Senator Klobuchar. Well, thank you very much for that
    answer. At some point, I think we have talked about this
    before, but Senator Cornyn and I did the drug take-back bill
    and we have finally gotten the rules out from DEA on that and
    we look forward to working with you on that.
        Something else I was--I think I will talk to you later
    about your work in Rwanda, but the fact that you have done some
    very important international work, as well, but you have also
    done prosecution of international terrorists here at home. And
    what lessons have you taken from those cases?
        I will tell you why this is important from a home State
    perspective. As you know, our U.S. Attorney's Office in
    Minnesota indicted and successfully prosecuted a number of Al-
    Shabaab members who had gone over to Somalia. We also had the
    first person killed in Syria fighting with ISIS was actually a
    Minnesotan. And our U.S. Attorney recently issued some
    indictments against others that have been recruited to fight
    over in Syria.
        There is a pilot program that the Justice Department has
    involving three cities--L.A., Boston, and Minneapolis-St. Paul.
    There is going to be an extremism conference coming up.
        But, could you, one, talk about your experience with these
    kinds of cases, and two, how you think that this pilot program
    should be funded? We are concerned because it is coming out of
    general funds, and if you would support some kind of specific
    funding for the program?
        Thank you.
        Ms. Lynch. Certainly, just talking initially on the subject
    of combating violent extremism, one of the most difficult
    things are young men and, increasingly, young women, many of
    them American citizens, who are turning to this radical brand
    of terror and being recruited to go overseas and become trained
    and are being sent back to perpetrate threats against the
    homeland.
        And the sources of this and the reasons for this are
    debated endlessly and I think we need further discussion about
    that, but we must take steps to combat this. We must take steps
    to understand the level of disaffection that these individuals
    are feeling with their current society and also help them and
    their families understand the risks that they are facing.
        Some of the most difficult conversations I have had have
    been when I have visited the mosques in my district and had,
    frankly, wonderful interaction with the participants there and
    wonderful interaction with the residents there, but we have
    talked about violent extremism and I have talked to parents who
    have said to me, ``You know, I just don't understand why the
    Government is targeting my youth.''
        And we have had very frank discussions about how it is
    difficult for any parent to know what their children are seeing
    on the Internet and how they are responding to what is being
    put forth on the Internet and the harm that it does not just to
    our society, but also to those families, because they lose
    their children. They absolutely lose them when they are sucked
    up by this radical extremism and only to come back to be dealt
    with, as they will, by American justice.
        Certainly, with respect to the number--the types of cases
    that my office has seen, we have seen individuals who started
    off as relatively peaceful individuals, from what we could
    tell, but were brought--were dragged into radical extremism,
    did travel overseas, were recruited to then return to the U.S.
    and perpetrate attacks there. We have seen that on more than
    one occasion.
        Senator Klobuchar. And the funding, are you aware of the
    pilot program that we have going in the Twin Cities?
        Ms. Lynch. Yes. Yes. A very important program.
        Given the nature of the problems that have emanated from
    that community and how it--the devastation that it has
    essentially wrought within those families and within that
    community, I think those issues are very important.
        Certainly, I look forward to working with you on finding
    the most effective way to fund those programs, because they
    have a lot to teach all of us who are working in this issue.
        Senator Klobuchar. Thank you. And the last thing I am going
    to ask about is sex trafficking. And I know you have done an
    impressive job of prioritizing the investigation and the
    prosecution of trafficking cases.
        This is something Senator Cornyn and I again have a bill on
    sex trafficking, which is called the Safe Harbor bill, which is
    supported by a lot of the groups, which creates incentives for
    States to enact laws which treat the victims of sex
    trafficking, the children, as true victims and not as
    perpetrators themselves.
        We think we can build better cases that way so people will
    come and testify against those that are running the sex rings.
        Could you talk about your work in this area and how you
    view these safe harbor laws?
        Ms. Lynch. Certainly, I think these safe harbor laws are an
    essential next step in helping the victims of this horrible
    scourge.
        My office has been privileged to lead the way in
    prosecuting numerous individuals who have essentially tricked
    women through lies, deceit, also coercion and duress, even
    rape, before they are brought to this country and forced to
    work here as sexual slaves.
        It is a tremendously degrading process to these women and
    one in which they find it difficult to escape because of either
    a language barrier or the fact that, sadly, often their
    children are being held in their home country to force them to
    behave and to force them to continue this activity.
        And certainly some of the work that I am most proud of has
    been the efforts my office has undertaken with a number of the
    organizations that help victims of human trafficking and also
    with other governments to reunite these children with their
    mothers after the cases are over.
        Senator Klobuchar. Thank you. And I also look forward to
    working with you. We also have a number of domestic victims, I
    think 80 percent of the victims actually are from the U.S. as
    well.
        Ms. Lynch. Absolutely.
        Senator Klobuchar. Especially when you get to the oil patch
    of North Dakota and those kinds of places where the U.S.
    Attorney's Office has played a major role.
        So thank you very much. Thank you for your grace under
    pressure today, and I hope the Chairman will let you get some
    lunch.
        Thank you.
        Ms. Lynch. Thank you, Senator.
        Chairman Grassley. Are things going okay for you, Ms.
    Lynch?
        Ms. Lynch. Yes, and thank you for inquiring, Mr. Chairman.
        Chairman Grassley. We will now adjourn until 1:35.
        [Whereupon, at 12:46 p.m., the Committee was recessed.]
        [Whereupon, at 1:40 p.m., the Committee reconvened.]
        Chairman Grassley. Welcome back, Ms. Lynch. Hope you are
    ready to continue.
        Ms. Lynch. Thank you, Senator.
        Chairman Grassley. Okay. And according to the seniority
    arrangements that we are doing, Senator Cruz of Texas is next.
        Senator Cruz. Thank you, Mr. Chairman.
        Good afternoon, Ms. Lynch.
        Ms. Lynch. Good afternoon, Senator.
        Senator Cruz. And congratulations on your nomination.
        Congratulations to your family, who I know are justifiably
    proud of you for being nominated to this post.
        Ms. Lynch. Thank you, sir.
        Senator Cruz. You know, I will note a number of my friends
    and colleagues who practice law in New York have reached out to
    me with words of praise for you, describing your tenure as U.S.
    Attorney there as that of a no-nonsense prosecutor and as a
    U.S. Attorney who honored and respected the law. And so for
    that, I congratulate you.
        You began your remarks by describing how, with new
    attorneys in your office, you remind them that they take an
    oath not to the Attorney General, but to the Constitution.
        That same thing is true for the Attorney General of the
    United States, and I have long expressed my very deep concerns
    with the conduct of the current Attorney General, Eric Holder.
        The Attorney General has a long and distinguished history,
    a bipartisan history, of being willing to stand up to the
    Presidents who appointed them. Attorneys General in both
    parties have demonstrated fidelity to law and to the
    Constitution, even when it meant telling the President of their
    own party ``no.''
        Now, that is never easy to do, but part of what has made
    the Department of Justice special is that Attorneys General,
    both Democrat and Republican, have honored that commitment, as
    you noted to your young lawyers, to the Constitution, not to
    the President who has appointed them. My single greatest
    concern with the tenure of Attorney General Eric Holder is that
    I do not believe he has upheld that tradition. I believe that
    the Department of Justice has behaved more like a partisan
    operation for the President than an impartial law enforcement
    agency.
        And so I want to ask you at the outset the simple question
    of, if confirmed, how would your tenure as Attorney General
    differ from that of Eric Holder's?
        Ms. Lynch. Well, Senator, I think you have raised an
    important issue of the role of the Attorney General. As we have
    discussed, it is an incredibly important Cabinet member, but
    the Attorney General is a Cabinet member unlike other Cabinet
    members in that the obligation of the Attorney General is first
    and foremost to represent the American people, to protect and
    defend the Constitution, and to faithfully execute the laws as
    passed by this body.
        In interacting with the White House or any agency, if
    confirmed as Attorney General, I would do so in the manner in
    which I have conducted myself as United States Attorney--with a
    full and fair evaluation of every matter brought before me,
    with a full and fair review of all of the relevant laws, with
    discussion with career prosecutors as well as even the most
    junior people, whom I have found to often have the best insight
    into matters. And only then will I make a determination as to
    the step to be taken.
        Going forward, every Attorney General creates their own
    path. You have asked how I will be different from Eric Holder.
    I will be Loretta Lynch. I will be the person that I have
    always been as I have led my office through two terms as United
    States Attorney, focusing solely on the protection of the
    people of my district----
        Senator Cruz. Excellent.
        Ms. Lynch. And, if confirmed as Attorney General, on the
    protection of all of the American people.
        One thing I do wish to say, Senator, is that with respect
    to the issues that you raise, I greatly appreciate your sharing
    them with me, both now and during the discussion that we had in
    your office.
        I look forward to more discussions with you and your
    colleagues, and I want to pledge to you now that I will always
    listen to your concerns. I will consult with this body where
    appropriate, because there is a great collective wisdom here
    and experience, both prosecutorial and legal. And I look
    forward to having a dialogue with you and, frankly, crafting a
    positive relationship, not just with this Committee, but with
    Congress.
        Senator Cruz. Well, Ms. Lynch, I thank you for that.
        That commitment is welcome and would mark a sharp break
    from the practices of the current Department of Justice.
        One of the frustrations of a number of Members of this
    Committee is that the Department has not been responsive to
    this Committee's requests and indeed, that--were that to
    change, that would be highly welcome.
        Let me focus on one and, if time allows, two specific areas
    where I believe the Department has gone with partisan politics
    instead of upholding the law. And let us start with
    immigration, which has been a topic of much discussion already.
        You mentioned in your opening statement that you had now
    taken the opportunity to review carefully the OLC opinion on
    the President's Executive amnesty. Do you agree with the legal
    analysis in the OLC opinion?
        Ms. Lynch. Senator, I have had occasion to review the OLC
    opinion that dealt with the Department of Homeland Security's
    request for a legal framework in how to prioritize removal of
    certain undocumented immigrants--or really, all the
    undocumented immigrants under their jurisdiction.
        I did not see a grant of amnesty there or a pathway to
    citizenship. Certainly, as I reviewed the opinion as well as
    the letters from some scholars who wrote in support of it, it
    seemed to be a way to look for the legal framework based up on
    case law precedent, prior action of Congress, as well as the
    discretionary authority of the Department of Homeland Security
    to prioritize this removal.
        And certainly, placing those most dangerous of the
    undocumented immigrants at the top of that list seemed to me to
    be a very reasonable exercise. Certainly I would want to hope--
    I would hope that the protection of those communities where
    undocumented immigrants involved in, for example, violent
    crime, gang activity, terrorism, would be at the top of the
    list.
        Senator Cruz. Ms. Lynch, you said now and before in your
    opening statement that you found the legal analysis reasonable.
    OLC operates in the place of the Attorney General of the United
    States, and an OLC opinion operates as the legal judgment of
    the Attorney General as the chief legal officer for the United
    States.
        And so my question is quite simply do you agree with the
    legal analysis in that memorandum? Would it have been your
    legal analysis, had you been asked the same question?
        Ms. Lynch. Well, Senator, I certainly am not able to say at
    this point what my--if my legal analysis would have taken the
    same pathway and the same steps, because I have not reviewed
    all of the cases and reviewed all of the memoranda that I am
    sure went into that.
        But what I can say is that, again, as the opinion seeks to
    talk about the exercise of Executive discretion, it seemed to
    be looking at precedent, actions of Congress, as well as the
    immigration laws, to see if there was a legal framework for the
    requested actions.
        And what I noted was that for some of the actions, the
    Office of Legal Counsel found that there was a legal framework
    for some of the actions that the Department of Homeland
    Security wanted to set in place, but for some of the requested
    actions, the Office of Legal Counsel found that there was not
    the appropriate legal framework for some of those actions and
    said--and my understanding is advised the Department of
    Homeland Security that they should not proceed along certain
    ways. And my understanding is that that advice was taken. So I
    do believe that the Office of Legal Counsel has the important
    obligation to look at the law, look at the facts, look at the
    action that is being brought before it and say where there is
    an appropriate legal framework, as well as where there is not
    an appropriate legal framework.
        Senator Cruz. Ms. Lynch, I would note that I have twice
    asked you if you agree with the analysis, and you are a very
    talented lawyer and so I suspect it is not an accident that
    twice you have not answered that question. You have described
    what OLC did, but have not given a simple answer.
        Do you agree with that analysis or not?
        Ms. Lynch. Senator, I have told you that I did find the
    analysis to be reasonable. I did find it to recognize the
    issues and it did seem to provide a reasonable basis.
        Senator Cruz. Well, in 2011, before the last election,
    President Obama said, ``With respect to the notion that I can
    just suspend deportations through Executive order, that is just
    not the case, because there are laws on the books that Congress
    has passed.'' Now, do you agree with what President Obama said
    in 2011?
        Ms. Lynch. Senator, I do not know what legal opinion he was
    relying on at the time. Certainly the subsequent legal opinion
    talks about the temporary deferral of deportation in a way that
    does provide a legal framework for it, but I do not know if the
    President was speaking of this exact same issue or not. I
    simply could not provide a legal opinion about the President's
    comments at this time.
        Senator Cruz. Now, the Executive action--in my view, the
    OLC opinion has no legal basis whatsoever. It hinges upon the
    notion of prosecutorial discretion, and you rightly described
    how any prosecutor will prioritize some cases over others, for
    example, focusing on more violent criminals.
        In your office, as U.S. Attorney, you have certainly
    exercised prosecutorial discretion. Was it your practice for
    any category of crimes to suggest to those who may have
    violated the criminal laws that they can come into your office
    and seek a written authorization exonerating them of their past
    crimes and authorizing them to continue carrying out crimes for
    a large categorical group of offenders?
        Ms. Lynch. Senator, we would not have that type of direct
    dealing with offenders. They would come to our attention as
    part of an investigation or part of an issue where they would
    already be under suspicion of some sort of wrongdoing. So we
    would not have that type of discussion with someone who might
    be represented or might have other rights. We would not have
    that type of discussion with someone.
        Senator Cruz. So that is not anything you ever did?
        Ms. Lynch. No. We do have priorities within my office. We
    do have guidelines within my office. Those are shared with our
    law enforcement colleagues. We also share them with many of our
    State and local colleagues as we discuss where to best place
    certain types of cases.
        Senator Cruz. Thank you very much, and we will continue
    later on in the day.
        Chairman Grassley. Thank you, Senator Cruz.
        Senator Franken now.
        Senator Franken. Thank you, Mr. Chairman, and
    congratulations on being the Chairman.
        Chairman Grassley. Thank you. I am glad to be Chairman, I
    can tell you that.
        Senator Franken. Yes, I know. I know you are.
        [Laughter.]
        Senator Franken. Ms. Lynch, congratulations on your
    nomination.
        Ms. Lynch. Thank you, Senator.
        Senator Franken. I was very--it was great meeting with you.
    Your reputation for being smart and tough precedes you.
        And you did not disappoint in our meeting, and thank you
    for the wide-ranging conversation we had--how was lunch?
        [Laughter.]
        Ms. Lynch. Excellent. Thank you, sir.
        Senator Franken. Yes. You enjoyed lunch?
        Ms. Lynch. Yes, sir.
        Senator Franken. Good.
        I discussed a couple of things, or a number of things, when
    you were in my office, and I want to bring them up again and
    talk about them. One is our prison system. We have----
        Ms. Lynch. I am sorry.
        Senator Franken. Our prison system, I want to talk about
    our prison system. The United States has 5 percent of the
    world's population, 25 percent of the prison population, and I
    think one of the biggest problems is that we have used our
    criminal justice system as a substitute for a well-functioning
    mental health system. We have a lot of people in prison, in
    jails in this country who should not be--probably should not be
    there, and who--it is not serving anybody any purpose.
        We have young people and others with mental illness who are
    in solitary confinement and it just makes their mental health
    worse. What I want to do to address that is something called
    the Justice and Mental Health Collaboration Act. It is a
    reauthorization of MIOTCRA, which is the Mentally Ill Offender
    Treatment and Crime Reduction Act, which has been very
    bipartisan in the past and should be--in fact, it is
    bipartisan. It has been carried by a Republican in the House.
        And I just want to ask you for your support, as we go
    forward, in making sure that our criminal justice system is not
    just wasting money, but wasting lives, and that you will work
    together with me on that.
        Ms. Lynch. Senator, I look forward to working together with
    you on that as well as other important issues.
        I think you have highlighted--one of the most important
    developments in criminal justice research and literature has
    been the ongoing research that has been done into the root
    causes of so much of our criminal activity. In particular,
    where the mentally ill are involved, we continue to learn more
    and more about how that illness impacts them as they make their
    way through the criminal justice system. And I look forward to
    taking advantage of that new knowledge with you and working
    with you on that and other important issues.
        Senator Franken. Some of this involves--I do not know if
    you have heard of crisis intervention training, but crisis
    intervention training is teaching both police on the ground and
    corrections officials in prisons to recognize when they are
    seeing someone with a mental health problem, and to deal with
    it in the correct way.
        Ms. Lynch. Certainly. Certainly, because I think the
    research has shown--and certainly anyone with experience with a
    family member or friend who has a mental illness knows--that
    sometimes conditions may manifest themselves in ways that
    appear to be disruptive but are, in fact, a reflection of the
    illness.
        Senator Franken. And so what I will be doing with this is
    doing mental health courts so that if a prosecutor and an
    arresting officer and the defense attorney and the judge say
    this person belongs in a mental health court so that they can
    be treated and not go to prison, where it is going to clog up
    the prison system and make this person's condition worse, then
    we will do that.
        And also, to do veterans courts, because we have so many
    veterans that are coming back with invisible wounds.
        Ms. Lynch. Yes.
        Senator Franken. And sometimes those invisible wounds will
    be medicated by drugs or by alcohol, and instead of going to
    prison, maybe it is time we can go to a veterans court.
        Ms. Lynch. Certainly, Senator. I know that some of my U.S.
    Attorney colleagues have been instrumental in working on the
    concept of veterans courts in particular as part of the
    Department's strong commitment to protecting all of the rights
    of veterans.
        You are so correct. We ask so much of our men and women in
    uniform, and they come back to us often different from how they
    left, with wounds that we can see and wounds that we often
    cannot see. And I believe we have an obligation to provide them
    the best treatment, to thank them for their service to our
    country.
        Senator Franken. Fabulous. I look forward to working with
    you on that, should you be confirmed, which I hope you will.
        Let me move on to something kind of specific. I was Chair
    and now will be Ranking Member of the Privacy, Technology and
    the Law Subcommittee. And there is a lot of technology out
    there that is new, that we are learning about some unforeseen
    consequences of it. There is a thing called stalking apps; I do
    not know if you know about it. Yes, we discussed this.
        And--incredible. When I first did a location Privacy
    Subcommittee hearing, my first hearing, I got some testimony
    from the Minnesota Coalition for Battered Women. And they told
    us a story about a woman who had an abusive partner, and she
    went to a county building in St. Louis County in Northern
    Minnesota. And while she was there, on her phone she got a text
    from her abuser, ``Why are you in the county building? Are you
    going to the domestic violence place?'' Well, it scared her so
    much they took her to the courthouse to file an order against
    him. While she is there, she gets this text from him saying,
    ``Why are you at the courthouse? Are you getting a restraining
    order against me?'' This terrified her. And it turns out--and
    we have had testimony on this--this is very common.
        Now, DOJ does have the authority under existing wiretap
    laws to prosecute the creator of apps that allow stalkers to
    listen to their victims' phone calls, intercept text messages
    or otherwise intercept content from victims' phones. And DOJ
    has prosecuted one app developer who created an app to do this
    thing, and I would ask that you continue to do that.
        But looking ahead, would you work with me? I have a bill to
    stop these things, to stop the marketing--the manufacturing of
    stalking apps. And also would ask that DOJ keep data on this.
    Because the last real data we have on this is, like, from 2006.
    And I do not know how much you keep up with technology, but
    since then, a lot more people have these smart phones, and this
    is a real problem.
        Ms. Lynch. Senator, you have outlined a very important
    issue as it relates to the victims of domestic violence or
    anyone who fears that someone that they thought was close to
    them might turn on them instead. And certainly I look forward
    to working with you and keeping you apprised not only of the
    Department's efforts in the continued prosecution of these
    matters, but to look at this statute with you and provide
    whatever assistance we can.
        Senator Franken. Thank you. I look forward to that as well.
        And one last thing; I have about two minutes. I am very
    concerned about the telecommunications industry consolidating,
    and I am specifically concerned about Comcast's proposed
    acquisition of Time Warner Cable. This is the largest cable
    provider and the second-largest cable provider. It is the
    largest broadband Internet provider and the third-largest
    broadband Internet provider.
        To me, this is just too big, and they would have
    unprecedented power in the telecommunications industry. I
    have--there has been a lot of comment on this, including my
    comment on this to the Antitrust Division. Will you commit to
    reviewing the serious concerns about the proposed Comcast-Time
    Warner deal that I and so many others have raised? And just do
    all that you can to ensure that the Antitrust Division is
    empowered to stand up to telecommunications giants like
    Comcast, if that is what it deems necessary?
        Ms. Lynch. Certainly, Senator. The Antitrust Division plays
    an extremely important role in keeping our markets competitive
    and open for everyone, and I look forward to learning more
    about this case, to reviewing those issues and to working with
    you to make sure that all of the concerns about this are
    brought to our attention so that they can be dealt with by the
    Antitrust Division as we move forward.
        Senator Franken. Okay, then, I will probably vote for you.
        [Laughter.]
        Senator Franken. Thank you. Thank you, Mr. Chairman.
        Chairman Grassley. Thank you, Senator from Minnesota.
        Now we go to Senator Flake.
        Senator Flake. Thank you, Mr. Chairman.
        And thank you, Ms. Lynch. I appreciated hearing your life
    story and seeing your family here, and appreciated the meeting
    we had in my office a few months ago as well.
        I brought something up there and I will bring it up to you
    again with regard to the border situation in Arizona.
        We have had, obviously, ongoing problems on the border; we
    share such a large border with Mexico. But there have been some
    considerable successes, and one of the successes over the past
    several years has been in the so-called Yuma Sector, where we
    have seen apprehensions go from about 140,000 in fiscal year
    2005 to about 6,000 last year. And so, considerable success.
        That contrasts with the Tucson Sector, which has seen a
    drop, I think, because of the economy; we have seen a drop
    anyway, but not nearly as significant. In fact, there were
    about 87,000 apprehensions in the Tucson Sector.
        One of the things that I think just about everybody
    attributes success in the Yuma Sector to is something called
    Operation Streamline, and it allows a so-called consequences
    program to be implemented where first-time crossers are met
    with consequences. And it is pointed to by certainly law
    enforcement organizations in Yuma and along that sector, and
    just about everyone else recognizes it has been successful.
        The problem is just last year it looks like DOJ has said
    that they are no longer going to implement parts of that, and
    that first-time offenders, unless there is some other
    circumstance, they will not be prosecuted.
        What are the specifics of this new policy, as you
    understand it, with Operation Streamline?
        Ms. Lynch. Certainly, Senator. I have had the opportunity
    to know somewhat about this matter from my discussions with my
    colleagues, the U.S. Attorneys, not just along the Arizona
    border, but also in Texas and California.
        And they work hard every day to keep our border safe and
    essentially to protect the people in their districts, but also
    to deal with this ever-growing problem.
        And I believe that--again, I am not familiar with the
    current status of Operation Streamline, but as it relates to
    first-time prosecutions of individuals.
        Individuals are still being prosecuted, and to the extent
    that a first-time crosser would not be prosecuted, they still
    would be subject to just pure removal without there being a
    criminal case involved.
        And I believe that the issues in managing the program had a
    great deal to do with resources, particularly with the budget
    constraints that offices have found themselves under in recent
    years. But I can assure you, Senator, that the commitment to
    protect the border is strong, not only among the U.S. Attorneys
    who work on the border, but throughout the U.S. Attorney
    community and the Department, and would be one of my priorities
    also, as Attorney General.
        Senator Flake. As I mentioned, this is what distinguishes
    the Yuma Sector from the others--it is the success with this
    program. If you are saying now that it is a budget issue, why
    haven't we seen concern about the budget or those budget
    aspects? Why hasn't DOJ come to Congress and said, we are
    having issues here, and so in order to continue with this
    program, we are going to need additional funding? To your
    knowledge, has that happened?
        Ms. Lynch. I am not aware of what has gone into the
    specifics of the Department's budget. I am generally aware of
    the budget as it relates to U.S. Attorneys, but not the
    Department as a whole or as it relates to specific programs, so
    I am not able to provide that information to you.
        Certainly, this is certainly something that I would be
    working closely on, should I be confirmed as Attorney General.
        Senator Flake. I guess I will put it this way. Barring
    budget issues, is this a program that you are committed to, or
    do you have other issues with it?
        Ms. Lynch. Certainly it is a program that I think has been
    effective. I think there have been concerns raised about
    resources and about the way the program has been managed, from
    the judiciary and others. We are always trying to be responsive
    to all of the parties involved in these.
        But with respect to the issue itself, I am certainly
    committed to working on that issue with you and the Members of
    this Committee, be it through Operation Streamline, if it can
    be maintained, or in an equally effective program.
        Senator Flake. Okay. Well, the record--we have not, to my
    knowledge, received any concerns about budget issues with
    regard to Operation Streamline. It seems to have been another
    decision that was made. And I will be following up with you.
        We want to make sure that--let me just step back. I believe
    we need to do a lot with regard to immigration policy. I am a
    sponsor of the comprehensive bill that went through the
    Congress two years ago, through the Senate, and did not get
    through the House. So this is not all we need to do, but it is
    a significant part of what we need to do.
        And Arizonans have paid the price, a disproportionate
    price, for a long time for the Federal Government's failure to
    have a secure border. And so when we have programs like this
    that work and we see success in one sector, and everybody can
    point to that, then it is very disturbing when DOJ pulls back
    on that. And we fear that the Yuma Sector, as the economy kicks
    up again and the crossings are more frequent, that we are going
    to have the same problems that we had a few years ago. And we
    cannot go on with that.
        Secretary Johnson is in Arizona, or just visited Arizona
    and visited the border. He's done that a few times, met with
    the ranchers, with some of their concerns, particularly in the
    Tucson Sector. And there is still a lot that needs to be done,
    and it is going to require a real partnership between a lot of
    people to make sure that it works.
        Switching gears, some of my colleagues have mentioned trade
    secrets and economic espionage. But just to focus specifically
    on the theft of trade secrets and foreign governments, last May
    the Department of Justice announced the indictments of five
    Chinese military hackers for foreign theft of trade secrets and
    economic espionage, among other crimes.
        When announcing these charges, Attorney General Holder said
    that the administration will not tolerate actions by any nation
    that seeks to illegally sabotage American companies and
    undermine the integrity of fair competition and free markets.
    This case will serve as a wake-up call to the seriousness of
    ongoing cyberthreats, he said. Would you agree with Attorney
    General Holder's statement, as well as other statements by the
    executive branch that this is a growing and persistent threat?
        Ms. Lynch. Senator, I would agree with those statements,
    and I would add that I have seen through cases in my own
    district that this is a growing and increasing threat. My
    office has also worked on matters involving foreign nations
    attempting to obtain technology under false pretenses. We have
    worked closely with our colleagues in other agencies to bring
    these cases to fruition. I am very proud of the work that we
    have done.
        And it is an ever-growing concern, certainly, and has also
    been expressed by the FBI, not only under the current director,
    but under former Director Mueller. So I look forward to working
    closely with our law enforcement partners and with this body to
    deal with the numerous ways that we have to fight this problem.
        Senator Flake. Last Congress I introduced the Future of
    America Innovation and Research Act, or the FAIR Act, that
    provides companies with a legal remedy when their trade secrets
    are stolen from abroad.
        The concern is that since the Economic Espionage Act was
    enacted in 1996, I think there have only been 10 convictions
    under Section 1831. That is a lot of time for just a few
    convictions. Since the FBI cannot investigate and DOJ cannot
    prosecute every single theft of trade secrets, does it make
    sense that there might be a Federal civil action, cause of
    action that could help these companies through another remedy?
    Does that make any sense?
        Ms. Lynch. Well, certainly, Senator. From my experience in
    advising companies, boards, and general counsel, I understand
    the importance of corporations being empowered to act on their
    own behalf and protect their intellectual property and their
    trade secrets.
        I have not had the opportunity to study the bill that you
    discuss, but I certainly look forward to doing so and having
    further discussions with you.
        Senator Flake. Well, I appreciate that.
        Victims services, another area that has been of some
    concern. Last year Congress passed the Victim of Child Abuse
    Act Reauthorization and I was pleased that the sponsors of the
    bill agreed to include an important provision that clarified
    Congress' intent that the money from the crime victims' fund
    should only be used to assist victims of crime. Will you commit
    to follow that new law and direct the victim advocates in the
    U.S. Attorney's Offices that this money only be used for
    victims? In the past we have seen it used for witness travel
    and other administrative duties and not actually focus on the
    victims.
        Ms. Lynch. Certainly the management of the issue of how to
    provide not only restitution but support to victims is an
    important one to the Department and to me as a United States
    Attorney. And I think that we would have to work to implement
    the law that you have discussed. My understanding is that it is
    being implemented, certainly that guidance has gone out to
    ensure that the victim advocates and offices are being
    appropriately focused.
        I know in my own office we have victim advocates who work
    closely with the victims of crimes--families who have suffered
    incredible loss--and provide great support to them.
        And I fully support empowering those professionals.
        So, yes, Senator, I believe that the law that you mention
    is one that is being implemented. I certainly will commit to
    ensuring that it is so.
        Senator Flake. Okay. Thank you and should you be confirmed,
    I look forward to working with you.
        Ms. Lynch. Thank you, sir.
        Chairman Grassley. The next person is Senator Blumenthal
    and when Senator Coons comes back, obviously we skipped over
    him, I will call on him as the next Democrat.
        Senator Blumenthal. Thank you, Mr. Chairman. And thank you
    for your courtesy and thoughtfulness in the way that you have
    conducted this hearing and I am proud to serve under you as
    Chairman.
        Chairman Grassley. Thank you.
        Senator Blumenthal. And thank you, U.S. Attorney Lynch, for
    being here today and also for having your family here. Welcome
    to your husband, Stephen, and your dad, Lorenzo. The two most
    common words, I think, that have been used to describe you are
    ``smart'' and ``tough.'' And I can see from your dad and I am
    sure it is true of your mom, that you come by those qualities
    honestly.
        Ms. Lynch. Yes.
        Senator Blumenthal. In the best sense of the word. And you
    should be very proud of your daughter. Your testimony has been
    among the most accomplished and impressive that I have seen as
    a Member of this Committee.
        And I am sure you have done yourself a lot of good today,
    not that you necessarily needed it, but thank you for your very
    forthright and erudite answers.
        I want to begin by focusing on human trafficking. You have
    a great record on human trafficking. I count 10 major
    prosecutions that you have done while United States Attorney,
    focusing particularly on targeted sex trafficking while also
    pursuing labor trafficking.
        And in a case that you brought against the 7-Eleven
    franchisees, you stated publicly that the defendants were
    running a modern-day plantation system and the system looked a
    lot like modern-day slavery.
        You brought the case relying on statutes relating to
    immigration enforcement and identity theft and wire fraud, not
    on the statutes that specifically focus on criminalizing human
    trafficking. I wonder whether you could relate to us whether
    you think those statutes need to be strengthened?
        If you could not, in a sense, rely on them, to bring those
    cases based on human trafficking, whether we should perhaps
    strengthen them. And in particular, the Trafficking Victims
    Protection Act of 2000 provided mandatory restitution for
    trafficking victims, a provision that is unfortunately more
    unenforced than enforced, in fact rarely enforced, I think, to
    provide for restitution.
        A recent study by the Human Trafficking Pro Bono Legal
    Center took a look at how this requirement works in practice
    and they found that in only about 36.6 percent of the cases did
    prosecutors bother to request restitution. So my question is
    really two-fold.
        Number one, do the statutes need to be strengthened, and
    number two, can you and would you do more to make sure that
    restitution is provided to the victims of human trafficking?
        Ms. Lynch. Certainly, Senator. The issue of restitution for
    the victims of human trafficking is an important one,
    particularly as we do increase the number of cases that we
    bring.
        Certainly sometimes there are situations where a court may
    not impose restitution because the funds are not there, or for
    other legal reasons. But where we can, we always do seek a
    restitution order for the victims.
        We, in particular, have worked with other governments to
    provide them information where we have found, for example, that
    certain small cities in Mexico have been a prime source of
    those who would traffic women into the United States, into the
    Eastern District of New York. We have worked with the Mexican
    government to provide them information so that they could
    possibly effect asset seizures that we could not, under our
    particular asset forfeiture laws.
        So it is a very, very important issue to me as United
    States Attorney, and should I be confirmed as Attorney General,
    it would be one that I would look forward to working with you
    on to make sure that all of the laws involving victim
    protection are as strong as possible.
        With respect to the 7-Eleven case, we did not have the
    evidence that the workers had been moved across State lines to
    effectuate the crime. And so, therefore, we would not have been
    able to use the trafficking laws per se. But as with that case,
    with every case, we look at the relevant facts and the laws and
    bring the strongest case that we can. And certainly where we
    have seen numerous, numerous incidences of children and women
    being trafficked from within the United States, sometimes even
    simply just crossing one State border as well as from overseas,
    we have never hesitated to act. And, should I become Attorney
    General, it will be one of my priorities.
        Senator Blumenthal. I would welcome that priority very much
    as the Co-Chairman of the Human Trafficking Caucus in the
    Senate. It is a very bipartisan one; the Co-Chairman is Senator
    Rob Portman of Ohio. So I look forward to working with you on
    it.
        First of all, I welcome your comments about the invisible
    wounds of war. Thank you to your uncles and cousins for their
    service in Vietnam.
        Ms. Lynch. Yes.
        Senator Blumenthal. And to your brother for his service as
    a Navy SEAL. I say that as a dad of a Marine Corps Reserve
    veteran who served in Afghanistan and another son who is
    currently in the Navy. And I would hope that you will continue
    to focus on those issues relating to post-traumatic stress and
    traumatic brain injury as they may be a cause of certain kinds
    of conduct that may be unwelcome, may even be criminal, because
    what we found is that a better understanding of those invisible
    wounds of war and the inner demons that many of our veterans
    bring back with them can lead to more thoughtful and humane
    treatment through our criminal justice system.
        I want to ask you, finally, in the time that I have, about
    one of the criticisms that has been made of the Department of
    Justice in its allegedly too-lenient treatment of certain
    corporate defendants as being too big to jail, so to speak.
        In remarks that you made after the Department of Justice
    entered into a settlement with HSBC for money laundering--I am
    sure you recall it--you said that the settlement had deterred
    that company, but you were not sure that it would deter other
    companies. So my question is whether more can be done to more
    aggressively prosecute white-collar crime, corporate crime, to
    dispel at least the widespread impression or perception that
    perhaps the Department of Justice has been too lenient, and in
    particular would you work with me on a bill that I have offered
    that would make certain corporate officers criminally liable if
    they are aware of the significant, potentially deadly risk to
    workers--workplace safety problems--and fail to act or make it
    public?
        So this bill is called Hide No Harm. It is a bill that is
    designed to protect workers on their jobs and it focuses on
    that part of the potential wrongdoing that may be committed by
    corporate officers. But also, again, a two-part question. Would
    you consider pursuing more aggressively criminal laws that may
    be applied to corporate officers who are involved in
    malfeasance or violations of Federal criminal laws generally?
        Ms. Lynch. Certainly, Senator. When it comes to white-
    collar crime or any kind of crime, as a career prosecutor and
    as U.S. Attorney, I have been very aggressive in pursuing those
    types of cases.
        With respect to should I become confirmed as Attorney
    General, I would continue that and direct that the Department
    of Justice continue its focus on examining the facts of every
    case following the law wherever it took us.
        At the outset, no individual is too big to jail. No one is
    above the law.
        There are certain situations where we come to a different
    resolution or may decide that a civil resolution is
    appropriate, but that is only after a full and fair analysis of
    all of the facts and the law and the relevant burdens under the
    criminal justice system or the civil system.
        But that being said, Senator, I believe if you look at the
    record of the Eastern District of New York, we have prosecuted
    a number of corporate officers for insider trading with respect
    to the Brooks case, and corporate malfeasance in other cases,
    as well as for violations of the FCPA. We have struck
    significant--wrung significant concessions from corporations
    and made major changes in the way in which corporations and
    financial institutions are structured and operate that act as
    deterrent. And we have been very clear with respect to the
    industries within which we are looking that, should a
    corporation not engage in preventive behavior or should they
    not take seriously the type of investigation that we bring,
    that criminal charges will be brought.
        Senator Blumenthal. Thank you. And I know of your very
    aggressive and distinguished record in this area and it is one
    of the reasons why I strongly support you and I look forward to
    voting for you and working with you on all of these topics and
    also reform of the Foreign Intelligence Surveillance Court.
        Ms. Lynch. Yes.
        Senator Blumenthal. As you know, I have advocated a public
    advocate to defend and advocate constitutional liberties in the
    course of this secret proceeding, the Foreign Intelligence
    Surveillance Court. I am not going to ask you to commit on that
    issue, but I hope that you will work with me on it as well as
    these other issues. And I very much appreciate your being here
    today and your public service and your family's service. Thank
    you very much.
        Thanks, Mr. Chairman.
        Chairman Grassley. Thank you.
        Ms. Lynch. Thank you, Senator.
        Chairman Grassley. Thank you, Senator Blumenthal.
        Now I go to Senator Vitter.
        Senator Vitter. Thank you, Mr. Chairman and thank you Madam
    U.S. Attorney and thank you for the meeting in my office. As I
    told you at the time, I was very disappointed and frustrated
    because you did not respond directly to any of my big topics.
    And you said you would look into these matters and consider
    them. And as I promised, I restated the big questions in
    writing and I was further disappointed when yesterday I got a
    letter saying there would be no response to that. But maybe the
    third time is a charm for me asking them. So we will try here.
        As I told you in my office, like many, many citizens and
    Members of the Senate, I have a huge concern regarding what I
    think is the President's illegal, unconstitutional Executive
    amnesty. And I have a huge concern of the fact that you think
    it is within the law. And we were talking about that.
        So I am going to put up what is the central statutory
    argument that the President's lawyers point to in terms of his
    allegedly having authority for this Executive amnesty.
        And it talks about granting parole only on a case-by-case
    basis. So I guess one of my key questions which we talked about
    in my office is do you really think his granting this amnesty,
    this new status, to about 5 million illegal aliens is acting on
    a case-by-case basis as mandated by the statute?
        Ms. Lynch. Senator, I greatly appreciate the question as
    well as the opportunity that we had to discuss the matters in
    your office. With respect, again, to my review of the opinion
    supporting the Department of Homeland Security's request for a
    legal basis for taking certain actions and prioritizing
    removal, as indicated, I did find it to be reasonable that we
    would prioritize removal of the most dangerous undocumented
    immigrants with our limited resources. Particularly those who
    were involved in violent crime, terrorism, recent crossers,
    those with criminal records--that seemed to me to be acting in
    the interest of public safety and appropriate.
        With respect to other individuals who may not be as high on
    that priority list, my understanding is that that is a status
    that they will have for a brief period of time.
        And certainly as you look at the issue of Executive
    discretion or prosecutorial discretion, you always want to have
    the ability to still look at individuals and make a
    determination as to whether or not they should be in that lower
    priority. And I did not see anything in the----
        Senator Vitter. Ms. Lynch, as we talked about in my office
    though, his action goes well beyond setting prosecutorial
    priorities, does it not? Apart from that, he goes further in
    granting this broad category of folks a certain status for
    three years at a time. And then he takes another affirmative
    step in giving them a work permit. So those two steps are going
    beyond setting priorities for prosecution, are they not?
        Ms. Lynch. Well, certainly, Senator, as relates to how the
    Department of Homeland Security manages the removal process for
    those in the low-priority category, however they may be
    determined to be, again, I am not aware if those regulations
    have been set forth yet, so I cannot comment on how they will
    be implemented. But I am----
        Senator Vitter. Does his plan go beyond setting priorities
    for prosecution or not? Doesn't it in fact go beyond that by
    granting these folks a parole status and giving them a work
    permit? Isn't that something additional to simply setting
    internal priorities for prosecution of these cases?
        Ms. Lynch. Well, Senator, just one minor point at the
    outset. I believe that the Department of Homeland Security's
    action refers to removal and not necessarily prosecution.
    Certainly, with respect to prosecution, there is still robust
    prosecution under the immigration laws and in my own district
    they are a tool that I use frequently.
        With respect also to what would happen to those individuals
    who would be in a lower priority status, for lack of a better
    word, again, I am not sure how the Department will go about
    implementing that. My understanding is that the issue was: Was
    there a legal framework for establishing such a program? And
    the opinion indicated that there was.
        Senator Vitter. Do you agree with that opinion?
        Ms. Lynch. I believe individuals still have to apply, at
    which point there would have to be a review of their
    eligibility and the like.
        Senator Vitter. Fundamentally, do you agree with the legal
    opinion we are talking about?
        Ms. Lynch. I thought that the opinion was reasonable.
        I also thought that it made distinctions.
        Senator Vitter. Again, going back to that legal opinion,
    put that back up, this is a key element of it. So do you think
    that action that is applying to about 5 million illegal aliens
    is operating on a case-by-case basis?
        Ms. Lynch. Senator, again, I am not familiar with how the
    Department of Homeland Security will be actually implementing
    the orders that it will be reviewing, and the applications that
    it will be reviewing. So I am not able to provide you with the
    specifics.
        Senator Vitter. But you have read the orders. Do you think
    that lays out a system that is operated on a case-by-case
    basis?
        Ms. Lynch. With respect to my review of the Office of Legal
    Counsel opinion, it did provide a reasonable basis both for the
    removal and for the prioritization of certain people as it came
    to removal. When it came to the issue of whether or not there
    could be a program for deferral, it seemed to refer to legal
    precedent, to the statute itself, and to actions by this body,
    among others. So it certainly seemed to provide a legal
    framework for that.
        And I believe, also, what I thought was noteworthy was that
    with respect to the opinion, some of the requested actions by
    the Department of Homeland Security the Office of Legal Counsel
    found did not have the appropriate legal framework that would
    have made them something that could be carried out under the
    current legal system. And so the advice was not to go forward
    with certain----
        Senator Vitter. Okay. Well, I will take it as a yes, that
    this is operating on a case-by-case basis. And I just think
    that is really a clear obvious stretch to say that this action
    that is going to affect 5 million people is following the law
    on a case-by-case basis.
        The law also says--in fact, this same specific citation--it
    says, this decision on a case-by-case basis has to be made by
    the Attorney General. Now, is it your understanding, under the
    President's plan, that if you are the Attorney General, you are
    going to be in the middle of that process making those
    decisions?
        Ms. Lynch. Well, Senator, I am not aware of the regulatory
    framework and the rules that have come out around this statute
    as to how that authority is either delegated or exercised. So I
    am not able to give you an exact answer right now as to how
    that would specifically be implemented----
        Senator Vitter. Well, I have read the plan, and the plan as
    I read it, is for all of that to be done in the Department of
    Homeland Security. So my question would be, what is the
    statutory basis to allow that when under the statute, not some
    order, not some legal opinion, the statute, the law, word-by-
    word, it says the Attorney General is in the middle of that
    decision on a case-by-case basis.
        Ms. Lynch. So, again, Senator, as presented to me by you,
    today, and thank you for that information, again, I am not
    familiar with the ways in which that particular authority has
    been exercised by the Attorney General--whether it has been
    delegated or how it is shared with the Department of Homeland
    Security--so I am not able to provide you with the specifics at
    this point as to how I would exercise that authority.
        Senator Vitter. Well, again, I will have to be following up
    for the fourth time, but that will be a central question. The
    plan is not for the Attorney General to be in the middle of
    this at all. The statute says that the Attorney General is. Why
    aren't we following the statute?
        Let me go to another case that goes to following the law
    which Senator Hatch brought up earlier, which is, your comments
    regarding the Department of Justice's initiative, Smart on
    Crime initiative. Now, as I read it, and based on what I know,
    this is just a way to clearly ignore mandatory minimums. And
    there are crimes that have mandatory minimums. We can have a
    good debate about whether those should be lowered in some cases
    or not, but they are what they are. They are in the statute. So
    why aren't we following the statute with regard to crimes with
    mandatory minimums?
        Ms. Lynch. Well, Senator, with respect to enforcement of
    the narcotics laws that contain those mandatory minimums, laws
    which I have had occasion to use on numerous occasions as an
    Assistant U.S. Attorney, as a career prosecutor, and as U.S.
    Attorney, those laws are being followed, not just by my office,
    but throughout the U.S. Attorney community as well as by a
    number of offices who have sought to prioritize how to handle
    those cases in an era of limited resources. The issue with
    Smart on Crime is focused on when is it best to use the
    mandatory minimums and when do we not necessarily have to use
    them? But every office still retains and in fact exercises the
    discretion to impose a mandatory minimum sentence should
    someone who may not on the fact of the policy fall into that
    category, but upon review of the case clearly does. And that
    has and is being done.
        Senator Vitter. So when is it best to use the mandatory
    minimums? So the mandatory minimums are not mandatory?
        Chairman Grassley. When you get done with that answer, then
    I will call on Senator Coons.
        Ms. Lynch. Surely.
        Chairman Grassley. Go ahead.
        Ms. Lynch. Senator, with respect to the narcotics policy,
    certainly as we handle these cases in the Eastern District of
    New York, we rely heavily on the mandatory minimum statutes
    when dealing with numerous drug kingpins that we have built
    significant trafficking cases against, many of whom have been
    extradited from foreign countries, or have been operating
    within our district.
        My fellow U.S. Attorneys use the mandatory minimum statutes
    in a similar way. We all look, however, at the nature of the
    crime problem in our district and the nature of the narcotics
    problem in particular in our district. And the case that may
    require a mandatory minimum in my district may not occur in
    another part of the country. Another part of the country may
    have a different type of narcotics problem and would have a
    different population of defendants than you would find in
    Brooklyn subject to the mandatory minimum statutes. But they
    are still being utilized, Senator.
        Senator Vitter. Mr. Chairman, just in closing, I just
    observed that--I mean, that is taking all meaning out of the
    word ``mandatory.'' It is replacing your and your colleagues'
    judgment for the judgment of folks who wrote the law. And that
    is what this whole discussion and debate is about. Thank you.
        Chairman Grassley. [Off microphone.]
        And for the witness, if there is nobody here and you want
    to take a break, take a break.
        Ms. Lynch. Thank you, sir.
        Chairman Grassley. But as soon as somebody gets here, I
    hope you can come back right away.
        Senator Coons.
        Senator Coons. Thank you, Chairman Grassley.
        Ms. Lynch, congratulations on your historic nomination and
    your very fine conduct in this hearing today.
        The Attorney General of the United States is one of the
    most important offices for which this Committee has oversight
    responsibility and consent responsibility. The current Attorney
    General Eric Holder has served in that office with distinction
    under very trying circumstances.
        For better or worse, the Attorney General often serves as a
    lightning rod for those in this body with complaints about the
    administration. And I think it takes special mettle to deal
    with that kind of constant incoming fire while remaining
    composed and focused on a constructive and forward-looking
    agenda.
        I am interested in hearing from you about how you plan to
    carry forward progress on some of the issues that the
    Department of Justice faces with respect to privacy,
    collaboration with State and local law enforcement, IT
    protection, and important civil rights issues such as
    sentencing reform, voting rights, and racial profiling.
        As successful as Attorney General Holder has been, there
    remains important progress to make and just two years in this
    administration to make it.
        First, if I could, about State and local law enforcement,
    given my previous experience, I am thrilled that someone with
    your seasoned and senior experience in law enforcement has been
    nominated for this position. I serve as Co-Chair, with Senator
    Roy Blunt, of the Senate Law Enforcement Caucus. And the
    Department of Justice plays a central role in supporting State
    and local law enforcement. Can you just comment for me, if
    confirmed, on the importance you would place on the partnership
    between Federal, State, and local law enforcement, including
    such programs as the bulletproof vest program, the justice
    reinvestment initiative, the violence reduction network, which
    is particularly important to me, and the information sharing?
        And then second, Senator Flake asked about this previously,
    but could you just talk about the victims of child abuse and
    programs and comment on what experiences you have had with
    child advocacy centers and how they function as one of the
    partnership undertakings between Federal, State, and local law
    enforcement?
        Ms. Lynch. Certainly, Senator. With respect to the
    important partnership between the Department of Justice and our
    State and local law enforcement counterparts, it will be one of
    my highest priorities to ensure that there is not only
    collaboration and cooperation, but active and ongoing
    discussion about the needs that we can help fulfill, but also,
    Senator, what we can learn from our State and local
    counterparts.
        It has been my experience having had the benefit of frankly
    learning from some of the best law enforcement agents and
    police officers around that no one knows the crime problem like
    the cop on the beat. No one really understands what is going on
    in a community like the officer who walks those streets every
    night and knows those residents and understands those issues.
        Similarly, our Federal law enforcement agency partners have
    outstanding background effort and ability to manage complex
    cases. And when we combine those two, we have been able to
    achieve tremendous results for victims of violent crime, of
    terrorism, of cybercrime, along with the cases that you
    mentioned involving vulnerable victims of child abuse. So
    certainly I feel that there has to be a collaborative
    relationship. But I want to essentially assure you that in my
    view it would be one where we would not just provide assistance
    in training and grants. That is very, very important. But we
    would also listen and learn as well from our local law
    enforcement partners.
        Senator Coons. Well, thank you, that is both a good answer
    and a great attitude and I look forward to working with you in
    this area going forward.
        The USA PATRIOT Act and in particular its Section 215
    authority is often thought of as a spying program, which in
    some ways it essentially is. But it also is and can be a tool
    the DOJ and FBI routinely use in the course of domestic law
    enforcement and its investigative missions. Does the DOJ use
    Section 215 as a bulk collection tool? And could the Department
    continue to make effective use of Section 215 if the enhanced
    privacy protections, the limitations on bulk collection set
    forth in the USA Freedom Act, were to be adopted?
        Ms. Lynch. Well, Senator, Section 215, as I understand it,
    is not a bulk collection tool in and of itself but a way in
    which the Government using court authority can obtain
    information already gathered that might be useful in ongoing
    national security investigations.
        But certainly I understand that as we work to protect our
    country from terrorists who seek to attack us here and abroad,
    that we have to be mindful of our civil liberties and the
    privacy rights of anyone who may be impacted by our collection
    procedures. And certainly I look forward to, as the renewal of
    Section 215 comes up, I look forward to discussions with you
    and the other Members of this Committee about the best way in
    which to keep that useful tool and also reassure this body and
    the American people that it is being used in the most effective
    way.
        Senator Coons. I am also concerned about IP--intellectual
    property protections as we talked about previously, and trade
    secrets.
        Ms. Lynch. Yes.
        Senator Coons. My understanding is several other Senators
    have also asked about this issue. So I will try to be brief. I
    am concerned about the huge transfer of wealth going on through
    trade secret theft and the Federal crime under the Economic
    Espionage Act is estimated to be responsible for up to $500
    billion annually in terms of losses to the United States, yet
    there is only one or two cases a month federally brought by
    prosecutors.
        As the U.S. Attorney for the Eastern District, what has
    been your experience in investigating or prosecuting trade
    secret theft? And would you be interested in working together
    to strengthen the resources and strengthen the legal
    authorities for protecting America and our inventions and
    innovations and ensuring that we stem the tide of loss through
    trade secret theft?
        Ms. Lynch. Certainly, Senator. In my experience as the U.S.
    Attorney for the Eastern District of New York, I do not believe
    we have any specific indictments under the Trade Secrets Act.
    We do, however, have a number of cases where we have
    intercepted foreign actors trying to obtain U.S. information
    and we have prosecuted them under other statutes. So we deal
    with very, very similar issues.
        I will note that these cases tend to be complex and long
    term. They do require an investment of resources, the devotion
    of time on the part of prosecutors, but also technological
    resources on the part of our law enforcement agencies. So I
    would look forward to, should I be confirmed, working with you
    and this Committee to ensure that we have the appropriate
    resources we need to handle these cases.
        Senator Coons. Well, as a Member of the Appropriations
    Subcommittee responsible, I look forward to working with you on
    that. I think it is vital that we strengthen the protections
    for America's inventions and inventors.
        Let me last ask about criminal justice reform, an issue
    that I think is front and center and important for our country
    and for our justice system.
        We have seen in a number of ways in the last year that our
    criminal justice system is broken in terms of how it deals with
    mass incarceration and its impact, in particular, on drug
    offenders and on the African-American population of our
    country.
        It is not just a civil rights problem, but also a fiscal
    problem and a social problem. And if you look at the numbers of
    who is incarcerated and for how long and under what charges, I
    think there is a significant inequality that needs to be
    addressed.
        I think we need legislation through this Committee and in
    this body that will help rationalize mandatory, overly long
    drug sentences for non-violent offenders.
        Attorney General Holder took an important step forward 2
    years ago when he issued revised guidance to the field
    directing that prosecutors not automatically charge the most
    serious mandatory minimum triggering levels of drug possession
    against low-level, non-violent offenders. I wondered whether it
    is your intention to keep in place Attorney General Holder's
    2013 memorandum or whether you would look for other or
    additional ways within the law, within the Constitution, to
    promote the equal and just application of our criminal laws to
    every person regardless of background, of sex, of gender, of
    sexual orientation, race, religion and nationality.
        Ms. Lynch. Senator, you touch on the important issue of
    making sure that our criminal justice system protects the
    American people, but does so in a way that is fair and
    effective and also protects the individual rights of everyone
    who has to pass through it.
        It is the responsibility of a prosecutor not just to win
    convictions, but to bring justice to every case, no matter what
    the result.
        Certainly, with respect to Smart on Crime, I have found it
    similar to many ways in which my own district has had to manage
    an ever-increasing problem of narcotics prosecutions of low-
    level offenders and work with an ever-growing docket of larger
    narcotics cases, also, and I found it to be a reasonable
    approach to do so and look forward to continuing that
    particular initiative.
        But I also look forward to further discussions with you and
    your colleagues on these issues as to how we can ensure that
    our criminal justice system is effective and yet also protects
    the people who have to go through it.
        That is the dual responsibility of the prosecutor. It is
    one that I have taken seriously all of my professional career
    and, should I be confirmed as Attorney General, I look forward
    to working with you as we explore that issue together.
        Senator Coons. Thank you, Ms. Lynch. As he said at the
    outset, Senator Leahy remarked that nearly a third of the
    Department's budget at this point is dedicated to the Bureau of
    Prisons.
        I think we have a pressing civil rights issue nationally
    for us in terms of our criminal justice system, but I have also
    long been a supporter of law enforcement and believe that you
    are uniquely positioned, qualified, and prepared to help us
    balance these twin obligations of ensuring that our communities
    are safer and stronger and ensuring that our justice system
    delivers on justice.
        Thank you.
        Ms. Lynch. Thank you, Senator.
        Senator Perdue [presiding]. U.S. Attorney, this is David
    Perdue. We met the other day.
        Ms. Lynch. Yes.
        Senator Perdue. I am a Senator from Georgia.
        Ms. Lynch. Yes. Thank you for your time.
        Senator Perdue. I want to thank you for your perseverance
    and patience with us today. I hope it was not anything that I
    said that cleared the room for you.
        [Laughter.]
        Senator Perdue. I hope you are doing well.
        Ms. Lynch. I hope it was not anything I said.
        [Laughter.]
        Senator Perdue. Well, thank you so much for, again, your
    perseverance. I just want to join my colleagues and welcome you
    before the Judiciary Committee and also to thank you for your
    years of public service.
        As we talked the other day, I am very impressed with your
    career and want to thank you for upholding the law in your
    career.
        I congratulate you on this nomination. You spoke this
    morning about your oath and the required commitment to the
    Constitution. I applaud that. You have demonstrated that in
    your career.
        You were just talking about mandatory minimums, if I am
    correct. I just have a quick question. Relative to a case that
    you had in your jurisdiction recently, I want to ask about a
    defendant who was convicted by your office in the late 1990s.
    His name was Francois Holloway, I believe. I hope you remember
    him.
        There was a lot of press coverage on this case during your
    current tenure as U.S. Attorney.
        In 1995, Mr. Holloway rejected a 10-year plea and was
    convicted after a trial on three counts of armed carjacking and
    possessing a gun during a violent crime. Those offenses
    subjected him to consecutive mandatory minimum sentences and he
    received a total of, I think, 57 years.
        In 2013, Judge Gleeson, the District Judge in Brooklyn who
    sentenced Mr. Holloway, began what The New York Times called a
    campaign on Mr. Holloway's behalf and wrote to you asking that
    you consent to an order vacating two of Mr. Holloway's
    convictions for armed carjacking.
        No one argued that Holloway was innocent or that he was
    wrongfully convicted or that his sentence was unlawful. No one
    claimed that there was a problem with the trial. All of Mr.
    Holloway's appeals were rejected.
        The case went to the Supreme Court which upheld the
    convictions. In fact, everyone agreed that the sentence he
    received was lawful under Title 18 of the sentencing
    guidelines.
        Judge Gleeson did not agree with the sentence the law
    required him to impose and was asking you to help him reduce
    it.
        In February 2013, to your credit, you refused to vacate the
    carjacking convictions. You suggested to Judge Gleeson that Mr.
    Holloway could contact the Office of the Pardon Attorney and
    submit a petition for commutation of his sentence.
        I personally think that that was the appropriate response.
    I congratulate you on that. I think every prosecutor would have
    responded that way.
        In May of 2014, however, Judge Gleeson again urged you to
    vacate two of Mr. Holloway's armed carjacking convictions. He
    said your suggestion that Mr. Holloway seek clemency was not a
    realistic avenue of relief because the fact that Holloway
    committed crimes of violence will disqualify him.
        The judge was definitely a passionate advocate for this
    defendant. This time, however, you backed down and you
    consented to the judge's order to vacate the carjacking
    convictions.
        I want to note that he was a violent offender; along with
    an accomplice, stole three cars at gunpoint.
        As the top law enforcement officer, I have a couple of
    questions relative to that case and your prospective tenure as
    Attorney General.
        My first question is, what caused you to change your
    earlier position in that case?
        Ms. Lynch. Senator, with respect to the Holloway case, it
    was a matter that had been of longstanding--it was a
    longstanding case from the office. It did predate my tenure my
    first time as U.S.--my second time, but not my first time as
    U.S. Attorney, I should say. And it was a case in which it was
    the defendant who had made a motion to allow the judge to
    revisit his sentence.
        So there was, in fact, a judicial proceeding before the
    court at that time and the court wanted us to take a second
    look at it. We did consider it numerous times.
        Ultimately, the matter was before the court and while the
    judge indicated he would like to have the opportunity to review
    that, our view was that we had to look at the case consistent
    with many of the initiatives that were being put in place now
    by the Department of Justice certainly with respect to clemency
    and with respect to how we look at offenders who have served a
    significant time and whether or not they would be eligible for
    that.
        Of note to me as I reviewed the matter was that Mr.
    Holloway was the second person in that carjacking incident and,
    in fact, was not the individual with the gun, but was, of
    course, legally liable for that. And while he received the
    sentence of 57 years, shall we say the main actor in that
    received a sentence shortly under 2 years.
        So there was an incredible disparity in the sentence there.
    But the real issue for us, was there a legal proceeding in
    place, and there was, and essentially, did we have the ability
    to let the judge review the sentence again by keeping it in the
    court system, and we felt that we did.
        But before we did that, it was important to me to consult
    with every victim in that case and certainly we found all of
    the victims but one after extensive research, all the victims
    who also felt that the judge should have the opportunity to
    reconsider Mr. Holloway's sentence, without a guarantee of what
    that sentence would be.
        Based on that information, based upon Mr. Holloway's record
    in prison, based upon his role in the offense, we looked at how
    we would have handled the case under current times. And, again,
    given that there was a court proceeding, we were able to go to
    court and tell the judge that we would not stand in the way of
    him reviewing the sentence again, which Judge Gleeson did.
        Mr. Holloway was re-sentenced. He then went into State
    custody to finish a matter and so I do not know his current
    status. But we did essentially allow the judge to take another
    look at that and through the judicial process the judge imposed
    a different sentence.
        That sentence was still significant and it was still, I
    would say, twice as long as what Mr. Holloway would have gotten
    had he accepted a plea deal.
        Senator Perdue. Thank you. As the Attorney General, you
    will have great discretion, just as you did as District
    Attorney, and the question I would--as illustrated by that
    case, I think--is where do you draw the line? How do you see
    this balance between the law and your personal position in a
    case, your personal opinion in a case?
        Ms. Lynch. Senator, I do not believe that my personal
    opinion is the governing factor in a case, be it Mr. Holloway's
    case or be it any case in which I would review, either as U.S.
    Attorney now or should I be confirmed as Attorney General.
        I will take a look at every case and I will commit to you
    that I will review every matter brought to me with a full and
    fair examination of the facts and an application of the law,
    but also with a view towards, as in Mr. Holloway's case,
    whether or not there is a judicial proceeding there and the
    current status of that.
        But we will take every effort and I will make every effort,
    should I be confirmed, to always act consistent with the law.
        Senator Perdue. Thank you. Just one last question in this
    vein. There are probably hundreds, if not thousands of violent
    offenders in our Federal custody who are serving sentences
    based on consecutive mandatory minimums that you just spoke
    about, like those imposed on Mr. Holloway.
        If you are confirmed and during your tenure as Attorney
    General it comes to your attention there are cases like Mr.
    Holloway's, would you consent to early release of those
    offenders?
        Ms. Lynch. Senator, it would not be my place to consent to
    an early release nor was it our place in the Eastern District
    of New York in the Holloway case.
        Our posture was to consent to allow the judge to revisit
    the sentence and impose the sentence that, as a judicial
    officer, he felt appropriate.
        So as U.S. Attorney, I would not be making the decisions as
    to whether someone should literally be released. Should I be
    confirmed as Attorney General, I would not be making those
    decisions either, except as people go through the clemency
    process or the pardon office and those matters come under
    review by the Department of Justice.
        We would then apply our best judgment to the situation, but
    ultimately, the ultimate decision on release would not be made,
    I believe, by me.
        Senator Perdue. Well, since I am the only one up here, I
    guess I am the presiding officer.
        [Laughter.]
        Senator Perdue. My time is almost up, but I have just one
    other question for you. I would like to move on to national
    security, if I might.
        And I will remind the Chairman that I did not go over on my
    allotted time, just in case.
        The DOJ announced last week that two Yemeni nationals
    charged with conspiring to murder American citizens abroad and
    providing material support to Al-Qaeda will be prosecuted by
    your office in the Eastern District of New York.
        I would like to ask you about your views on transferring
    terrorists to U.S. soil who have been captured abroad.
    Terrorists have been tried successfully in civilian courts
    before, but I would like to know your opinion about what role
    you think military tribunals play in handling terrorism cases.
        Is there any role for military tribunals or should civilian
    courts be used exclusively for these prosecutions, in your
    opinion?
        Ms. Lynch. Senator, thank you for that question. The case
    that you mention is being handled by my office. And at the
    outset, I would note that throughout the process of reviewing
    that case and deciding how to best prosecute it and where to
    appropriately venue it, we consulted extensively with the
    Office of Military Commissions, as we do with all of the cases
    involving national security defendants who may be brought to
    U.S. shores and may be brought to the Eastern District of New
    York.
        Certainly, I would say at the outset that my position is if
    terrorists threaten Americans here or abroad, they will face
    American justice. We have done that successfully in the Eastern
    District of New York and I look forward, should I be confirmed
    as Attorney General, to continuing that strong practice,
    utilizing all of the tools in our arsenal, and that includes
    the military commission process.
        Essentially, Senator, should I be confirmed as Attorney
    General, I look forward to working with the military and the
    other executive branch divisions in Government to make the best
    determination about where each case should be brought.
        Should that determination be an Article III Court, I
    anticipate that the receiving U.S. Attorney's Office would
    handle it with the skill and dedication that my prosecutors do
    every day.
        Similarly, should it be a military commission, they will
    also handle it with the skill and dedication that they have
    also shown.
        I have been honored to have hosted General Martins on more
    than one occasion in my office and have a positive relationship
    with him and, should I be confirmed as Attorney General, look
    forward to continuing that relationship with him and all of our
    partners in the war on terror.
        Senator Perdue. Well, I would like to thank you for your
    patience, perseverance, professionalism, and your graciousness
    today. You have run out of Senators almost.
        Ms. Lynch. I seem to have.
        [Laughter.]
        Senator Perdue. In the absence of our Chair, there is only
    one other Senator I think that is potentially available for
    questioning. I know that they are on the floor right now
    voting. I ran over to get a few questions in.
        So what I would suggest is that we take a 10-minute recess,
    if you are amenable, and we will find from the Chairman if
    Senator Tillis is the last remaining person to ask questions,
    and we will see where we go from there.
        So I think we will stand in recess for 10 minutes, and
    thank you again for your graciousness and perseverance today.
        Ms. Lynch. Thank you, Senator.
        Senator Perdue. Thank you.
        [Whereupon, at 2:55 p.m. the Committee was recessed.]
        [Whereupon, at 3:13 p.m., the Committee reconvened.]
        Chairman Grassley. Just as soon as the room quiets, I am
    going to recognize Senator Tillis. I think it is quiet enough.
        Senator Tillis, would you proceed?
        Senator Tillis. Thank you, Mr. Chair.
        Ms. Lynch, congratulations. It is quite an honor to be in
    the place that you are today. I want to compliment you on your
    distinguished career.
        I have also noted over the course of your testimony just
    how much pride is in the eyes of your friends and supporters
    here. So, congratulations.
        I had a question for you and it stems from--I also want to
    thank you for dealing with last week when we had to move the
    venue and the time around for the meeting. I appreciate your
    graciousness and spending some time with me last week.
        And I really want to maybe start where we left off with
    some of the discussions and I think that Senator Flake and
    Senator Lee and Senator Schumer have also echoed the concerns
    about the limited resources and how you would prioritize things
    within your future prospective new responsibilities.
        I guess something that strikes home for me has to do with
    certain elections laws. In North Carolina--I do not know how
    familiar you are with some of the elections laws that have been
    passed over the past couple of years, but in the context of at
    least one case that was brought against the State of North
    Carolina by Mr. Holder, where the law was--more or less, the
    foundation of that law was the Indiana law which has been
    upheld by the Supreme Court 6-3.
        Given the limited resources within the AG's Office and the
    Department of Justice, what are your thoughts on pursuing laws
    that are likely to end up in the same state, particularly laws
    like North Carolina that went much further than the Indiana law
    that was upheld?
        Ms. Lynch. Certainly, sir. I believe that the right to vote
    obviously is the cornerstone of our democracy.
        Senator Tillis. As do I.
        Ms. Lynch. And certainly I think that States obviously have
    an interest in protecting that right to vote, also, as well as
    regulating it and making it safe and free and open for
    everyone, and I believe many States are acting with exactly
    that view in mind.
        Certainly with respect to the North Carolina statute and
    case, I know that it is under litigation now. I believe there
    will be a trial at some point in time. I am not familiar with
    the status of the case now.
        So I cannot comment on that specific case or that specific
    statute, but what I can say is that with respect to how the
    Department will look at voting rights issues is with a view
    toward protecting the right to vote and hopefully working with
    the States to ensure that all the interests are met.
        Certainly all voter ID laws are not problematic. As you
    have noted, the Court has outlined situations in which they are
    useful and serve a fundamentally important purpose, and the
    Department has, under the previously utilized doctrine of
    preclearance, actually approved voter ID laws.
        So I do not think that we can at this point, without
    knowing how a case will be presented, say which way the
    Department will go in viewing it. But given the fundamental
    importance of the right to vote, should an issue be raised?
        It is something that the Department of Justice has an
    obligation to review and consider whether or not it should get
    involved.
        Senator Tillis. In the example of the law that was passed
    by North Carolina and the case that was brought against North
    Carolina--in fact, I was named in the case because at the time
    I was Speaker of the House. I am just curious how, as you go
    forward and you are dealing with the challenges in this office
    of, as I believe Senator Schumer said, trying to focus your
    resources on the bad actors, the hardened criminals, the
    difficult challenges that the Department faces, in a case that
    has some 10 attorneys on it focused on--no less than 10, I
    believe--focused on that, I would hope that there would be some
    focus on: Is that the best and highest use if, given the merits
    of the case and other laws that have gone to the Supreme Court,
    that it is likely to end in a situation where it is going to
    rule in favor of the State and at the expense of those
    resources that could be used for other purposes.
        What is your thought on going into this role and taking a
    look at cases like that and maybe determining priorities based
    on the likely outcome? Have you given any thought to that?
        Ms. Lynch. Certainly, Senator, as we review a case, both
    throughout my career as a prosecutor and as U.S. Attorney, we
    always look to the possibility of how a court will view a
    particular matter.
        But first and foremost, whether the case involves voting or
    any other important right, is the issue of what is the evidence
    that is presented and what is the relevant law, what is the
    interest being protected. And if it relates to a core function
    of the Department of Justice, such as protecting the rights of
    citizens, keeping our citizens safe, or protecting the right to
    vote, it is a matter that we would be obligated to look into.
        Whether or not a matter would result in litigation would,
    of course, depend upon a variety of factors, which are not in
    front of me today, about the nature of the law and how it was
    written and essentially whether it comported with those laws
    that were previously approved both by the Department and by
    courts.
        Certainly, with respect to the North Carolina case, I
    believe the matter is in litigation. It is not something that I
    am intimately familiar with. I have not been involved in the
    management of that case to date. I look forward to learning
    more about it, should I be confirmed, and I believe the matter
    will proceed to court and we will await the results there.
        Senator Tillis. Ms. Lynch, I do have a question just based
    on the final comment that you made there with respect to the
    case, because it gives me some sense of whether or not we can
    look at this objectively and make sure that we are using the
    resources of DOJ in the most effective way.
        I think in January of 2014, you said that people try and
    take over the Statehouse and reverse the goals that have been
    made in voting in this country. I presume since I was the
    person that took over the Statehouse, I would be included by
    reference.
        And you go on to say, ``And in my home State of North
    Carolina, has brought lawsuits against those voting rights
    changes to seek to limit our ability to stand up and exercise
    our rights as citizens.''
        So in my limited time--I know that I will have another
    opportunity to ask questions--I had some sense that maybe
    perhaps you were somewhat familiar with what had been done in
    North Carolina. And again, with the backdrop of other laws that
    seem to have disposed of whether or not what North Carolina has
    done, I took great care to make sure that we made heroic
    efforts to preserve everyone's right to vote.
        I may come back around and ask you a few more questions to
    this effect, but I want to move on to something that is
    completely out of there and it has to do with something that is
    very important to me. One of the reasons I ran was on veterans'
    issues and on taking care of those who have taken care of us.
        One question that I have--I hope that you will look at and
    perhaps consider in my follow-up questions giving me a
    response, if you have time to speak with others, but the Public
    Safety Officers' Benefits program is a problem.
        We have people who are making claims there who are not
    getting their claims resolved on a timely basis and I have
    heard a number of reports where--and this is in the event of a
    death--that I would like to think that we would place a
    priority on resolving these claims and clearing the backlog.
        If you have an opportunity, and you will not have a lot
    because you will be sitting right there, but if I could get
    some sense of what that will be as a priority, if you are
    confirmed as Attorney General.
        It is something personally important to me. I think it is
    the least we can do for the families.
        The one other thing I will tell you that I think we are
    going to find a lot of common ground, should you be confirmed,
    is on the issue of cybersecurity. I consider this to be
    something that the Attorney General, all law enforcement, all
    prosecutorial districts across this Nation need the tools to
    make sure that we get control of this quickly.
        I would like some idea, based on your knowledge of how we
    are currently doing, if you have any sense of where you would
    go as a priority, should you be confirmed.
        Ms. Lynch. Certainly, Senator. With respect to
    cybersecurity, there are a number of areas which would be my
    focus, should I become confirmed as Attorney General.
        Within our law enforcement community, I would work to
    ensure that they have the technological resources needed to
    stay ahead of this threat both from a human resources
    perspective, as well as computers and the like.
        With respect to the U.S. Attorney community and the
    Department of Justice community, I would make sure that our
    prosecutors receive the appropriate training to manage this
    important issue.
        As I have seen in my practice as U.S. Attorney, cyberissues
    are now in every area of practice that we have. That will
    continue to be the case and I am sure that, should I become
    confirmed as Attorney General, I will see that throughout the
    Department of Justice.
        So I will work to strengthen the resources in the Criminal
    Division and the National Security Division that deal with
    these cases.
        But, Senator, another thing that I think is very important
    as we combat cyberattacks and deal with cybersecurity is the
    relationship between Government and private industry.
        I believe that there is a very, very important
    collaborative relationship to be built there. It is being
    built. I have seen it. I have participated in conferences with
    both financial sector parties, as well as pharmaceutical
    industry parties on this important issue and we have had very,
    very good, positive, collaborative results involving the
    reporting of cyberattacks, as well as law enforcement's ability
    to work with private industry to gain knowledge of their
    systems to prevent attacks, as well.
        So I think we also--should I become Attorney General, one
    of my priorities would be strengthening this connection between
    Government and private industry, as well.
        Senator Tillis. Thank you very much.
        Senator Schumer mentioned earlier--I meant to mention in my
    opening comments, that we have a number of very capable
    basketball teams in North Carolina beyond the Blue Devils and
    the Tar Heels, many of whom I think this year could beat the
    Knicks.
        [Laughter.]
        Ms. Lynch. Well, Senator, as an early Carolina fan, I have
    to say that that is likely true.
        [Laughter.]
        Chairman Grassley. I would like to have the various staff
    of both Republican and Democrat give us some inventory of the
    number of people that want a second round, and the second round
    will be 8 minutes. I am going to take about 5 minutes of that 8
    minutes and then go vote and I will have to recess if nobody
    else is back here. So you can do what you want to do during
    that period of time.
        Ms. Lynch. Thank you, Senator.
        Chairman Grassley. The first question was going to be a
    question. Now it is just going to be a statement. So I would
    appreciate it if you would listen to my point of view.
        You suggested earlier that prosecutorial discretion allows
    the administration to prioritize removal of criminal aliens
    from the country. Yet, in fiscal year 2013, the administration
    released from its custody 36,000 aliens who had been convicted
    of a crime instead of removing them. According to the
    Department of Homeland Security, 1,000 of these aliens have
    already been convicted of another crime since their release.
        Just today I received a 38-page document from the
    Department of Homeland Security that lists each of the offenses
    underlying those 1,000 post-release convictions, including
    things like assault with a deadly weapon, terrorist threats,
    failure to register as a sex offender, lewd acts with child
    under 14, aggravated assaults, robbery, hit and run, criminal
    street gang, rape spouse by force, child cruelty, possible
    injury, death.
        So I am going to put this in the record.
        [The information appears as a submission for the record.]
        Chairman Grassley. So my statement is this for you to
    consider. You do not have to respond to it now. I could go on,
    but for the sake of time, that copy is in the record, so
    anybody can review it.
        This suggests the administration is not prioritizing the
    removal of criminal aliens very well. So 1,000 out of 36,000
    have committed further crimes, and, who knows, maybe others.
        So, if confirmed, my statement to you would be simply: You
    need to take a look at that policy.
        I had two points in my second question. But Senator Tillis
    asked about the public safety officers' benefits. So he has
    heard the same thing that I have heard from my constituents. In
    Iowa alone, there are three families who have been waiting for
    over three years, and another that has been waiting since 2013
    to receive benefits.
        Two weeks ago, I wrote the Department about the delays and
    requested a reply by this Friday. Obviously, you will not be in
    a position that you can request that or answer that by Friday,
    but I hope to get an answer because way back in 2004 the
    Attorney General at that time made a decision that these claims
    should be processed within 90 days of receiving all the
    necessary information. So then I would go to the second one,
    which is just--well, let me go to it and then I will ask you
    the question.
        There is a Brandon Ellingson of Iowa. You would not know
    about this because it is an Iowa person, and a college student,
    who drowned while handcuffed in the custody of Missouri State
    troopers after they arrested him on Lake of the Ozarks, May
    2014.
        I have discussed the case with Attorney General Holder, had
    a couple of telephone conversations. I am very satisfied with
    his personally looking at it. It has gotten his personal
    attention. He has assured me that the Department will look into
    the unanswered questions in this case carefully to see if there
    are any Federal laws involved.
        So all I am asking you to do, if and when you are approved,
    will you be able to talk to Attorney General Holder and if he
    does not make a decision by then, that you would personally
    examine Brandon Ellingson's case?
        Ms. Lynch. I will certainly continue that resolve, Senator.
        Chairman Grassley. Thank you. Now, I am going to go and I
    will recess for a while, then I will come back and finish my
    second round. Thank you.
        Ms. Lynch. Thank you, Senator.
        [Whereupon, at 3:30 p.m., the Committee was recessed.]
        [Whereupon, at 3:33 p.m., the Committee reconvened.]
        Senator Sessions [presiding]. Thank you all. Sorry that we
    are in this unfortunate circumstance of having our hearing
    interrupted rather repeatedly. It is not the best way to do
    business. Ms. Lynch, I am sorry that that has occurred. We have
    been working hard in the Senate. Thursday, more votes were cast
    in one day than in the entire year last year.
        Senator McConnell promised that Members would be able to
    offer votes, so there are 18 more, I think, going to be cast
    today. Maybe that will come close to bringing an end to the
    legislation that is out there.
        But I think it is part of our heritage as a Congress to
    have individual Senators be able to offer an amendment and then
    vote on it. So I think it is the right thing. This hearing, I
    wish, could have been conducted more respectfully, so I am
    sorry about that.
        I have to have a clear answer to this question, Ms. Lynch:
    Do you believe the Executive action announced by President
    Obama on November 20 is legal and constitutional, just yes or
    no?
        Ms. Lynch. As I have read the opinion, I do believe it is,
    Senator.
        Senator Sessions. Well, this is very troubling to me
    because it goes way beyond prosecutorial discretion, I think.
    It goes clearly to allowing someone to work who is unlawfully
    in America, to take jobs that the statutes say they are not
    entitled to take. It gives people the right to participate in
    Social Security and gives them a number and is part of their
    work authorization and to participate in other actions, like
    Medicare.
        I believe this is a fundamental question. It has been a
    part of the national debate and the American people are very
    concerned about it. The polling number is very high. They do
    not believe--in fact, the American people are shocked that we
    are seeing this action from the President after Congress was
    asked to pass legislation to this effect and Congress rejected
    it.
        Do you believe that the President has a right to take
    action in violation of law just because Congress refused to
    pass a law he asked them to pass?
        Ms. Lynch. I believe, Senator, that the President is as
    limited by law as every citizen and it is certainly the
    responsibility of both the President and the Department of
    Justice to follow the laws as passed by this body.
        With respect to other actions the President may take,
    depending upon the action taken, there may be a basis for
    certain actions or there may not be a basis for legal actions.
    And that is where I believe that the Department of Justice must
    apply its own independent, thorough legal analysis and, as with
    this particular opinion, ascertain whether or not there was a
    legal framework for some action and, as I saw in the opinion,
    indicate that there was not a legal framework for some of the
    action that was requested and decline to provide a legal basis
    for that.
        Senator Sessions. Well, what it did approve, I think,
    clearly goes beyond the law. Congress authorized--has passed
    certain laws that control entry into the United States. We
    expect you as the chief law enforcement officer, the President,
    who takes an oath to see that laws are faithfully executed, to
    execute those. I have read the opinion and it suggests that
    ``faithfully execute'' means you use your resources as best you
    have to carry out the intent of Congress. Is that
    fundamentally----
        Ms. Lynch. Certainly, sir.
        Senator Sessions. So it goes beyond just enforcing every
    single law. If you do not have the resources, you should try to
    use the resources you have to effectively carry out the law.
        Ms. Lynch. Certainly, sir.
        Senator Sessions. Well, what I would contend is absolutely
    plain. I would contend that you have gone far beyond that. You
    have actually created a new system of law, a new system of
    qualification, a new standard for who can work in America, a
    new standard for who can have Social Security and Medicare.
    This is a fundamental matter of great importance. I have just
    got to tell you, I am worried about it.
        In the Wall Street Journal, Mr. Rivkin, who served two
    White House counsels, and law Professor Foley concluded their
    piece this way: ``The OLC,'' that is the Office of Legal
    Counsel who reports to Mr. Holder and would report to you, that
    you are now affirming, rendered a valid opinion, which you
    associate yourself with. This is what they said: ``The OLC's
    memo endorses a view of presidential power that has never been
    advanced by even the boldest presidential advocates. If this
    view holds, future Presidents can unilaterally gut tax,
    environmental, labor or securities laws by enforcing only those
    portions with which they agree. This is a dangerous precedent
    that cannot be allowed to stand.''
        Frankly, the Attorney General of the United States should
    have told President Obama that, urged him to back off.
    Presidents get headstrong. He did not do it, and now you are
    here defending this. I believe it is indefensible.
        So, I am worried. I just want to tell you, that is a big,
    big problem with me.
        Now, do you believe and do you support legalization of
    marijuana?
        Ms. Lynch. Senator, I do not.
        Senator Sessions. I know the head of the DEA, who is a
    little bit out of step with some in the administration, I
    think, agreed with you on that. The President said this in
    January of last year: ``I smoked pot as a kid and I view it as
    a bad habit and a vice, not very different from the cigarettes
    I smoked as a young person up through a big chunk of my adult
    life. I don't think it is more dangerous than alcohol.'' Do you
    agree with that?
        Ms. Lynch. Well, Senator, I certainly do not hold that view
    and do not agree with that view of marijuana as a substance. I
    certainly think that the President was speaking from his
    personal experience and personal opinion, neither of which I am
    able to share. But I can tell you that not only do I not
    support legalization of marijuana, it is not the position of
    the Department of Justice currently to support the
    legalization, nor would it be the position should I become
    confirmed as Attorney General.
        Senator Sessions. I do think there has been a lot of
    silence there. I know the head of the DEA did push back and
    testified here pretty aggressively, but I think she felt like
    she was out of step within the administration. I hope that you
    will cease to be silent because if the law enforcement officers
    do not do this, I do not know who will. In the past, Attorneys
    Generals and other Government officials have spoken out and, I
    think, kept bad decisions from being made.
        It is good to see Senator Leahy here. How many Attorneys
    General have you presided over? More than a few. How about a
    rough number?
        Senator Leahy. Since President Ford's--go back to there.
    Not presided, but been part of it.
        Senator Sessions. Well, it has been a pleasure to work with
    you on this Committee over a number of years.
        Ms. Lynch, this is a big issue, this immigration, because
    it represents, in my view, a presidential brute decision that
    was rejected in Congress. I do not believe, and totally reject
    the idea that if Congress fails to act, then the President is
    entitled to act, any more than I think if Congress fails to
    act, judges can just act. Because Congress, by not agreeing to
    pass a certain piece of legislation, has acted. It has made a
    decision. That is where we are. There are still opportunities
    and still legislation moving that will be considered in the
    years to come on all questions relating to immigration. There
    will be a lot of debate and that kind of thing. But under our
    system, it is not justified, in my view.
        Just one more thing I would say to you. I do hear a lot of
    talk, a lot of loss of confidence in the Justice Department, a
    belief from professionals, prosecutors, and citizens that there
    is too much politics and not enough law.
        I do think, if you achieve this office, you need to know
    that. I shared that with you, I think, in our meeting. You need
    to make it a central part of what you do to reverse that trend
    and restore confidence that this Attorney General's Office
    serves the law and the people objectively and not a political
    agenda.
        Thank you. I will recognize Senator Leahy.
        Senator Leahy. I will be brief. But when I was a young law
    student I was invited in to the Attorney General's Office. He
    was recruiting me to come to the Department of Justice. I asked
    the Attorney General how independent they were.
        I said, for example, suppose you had a prosecution that you
    knew was justified, but the White House, you know, might take a
    different view? He said, I would have to prosecute because that
    is my job. That Attorney General was Robert Kennedy. He later
    prosecuted a man who was critical to his brother getting
    elected President.
        I contrast that to another Attorney General in the last
    administration who testified here that he's a member of the
    President's staff, so therefore in effect took orders from the
    White House. I kind of exploded on that. I said it is not the
    Secretary of Justice, it is the Attorney General of the United
    States--not for the Republicans, not for the Democrats, but the
    United States.
        I think from what you told us, you would be that kind of an
    independent Attorney General. I also heard somebody criticize
    here this morning on the prosecution of Ted Stevens. I happen
    to feel he should not have been prosecuted. They neglected to
    mention that the conviction was during the last administration
    and it was Attorney General Holder who got it removed from
    Senator Stevens.
        We are concerned in Vermont about the increase of opiates
    and heroin. I assume from things you said before that you would
    continue to work with communities, as the Justice Department
    does now. I mean, communities, not just at the Federal level,
    but the State and local level, to combat this problem that is
    facing so many parts of the United States, not just my own
    State of Vermont.
        Ms. Lynch. Senator, should I be confirmed as Attorney
    General, certainly the issue of the growing numbers and amount
    of heroin abuse is a grave concern to me. I have seen it happen
    in my own district. In talking with my colleagues in the U.S.
    Attorney community across the country, they have expressed
    similar concerns.
        As you point out, however, we are most effective when we
    work in partnership with our State and local law enforcement
    partners, and often when dealing with the issue of opioid
    addictions and working with our public health community as
    well, to find treatment for the offenders and possibly break
    the cycle of addiction.
        Many of my colleagues have in fact been engaged in efforts
    of exactly that type that have been very effective in lowering
    the addiction rates and, in fact, lowering the crime rate
    associated with heroin abuse.
        These are efforts that we can study and that we can share.
    We have to have a strong law enforcement response also but we
    must involve State and local counterparts. We must involve
    families, we must involve treatment centers as well in dealing
    with this seemingly intractable problem.
        Senator Leahy. Thank you. I would, if there is no
    objection, reserve the 4 minutes and 46 seconds left in my
    round of questions because, as everybody knows, the roll call
    has started.
        Senator Sessions. That will be fine. We will save that 4
    minutes and 46 seconds and we will stand in recess until
    somebody returns.
        Ms. Lynch. Thank you, sir.
        [Whereupon, at 3:47 p.m. the Committee was recessed.]
        [Whereupon, at 3:54 p.m., the Committee reconvened.]
        Senator Schumer [presiding]. The hearing will come to
    order.
        First, I would like to thank my Republican colleagues for
    the courtesy here. We are all going back and forth, voting. It
    would be rare to have the third-ranking Democrat chair the
    Committee, but we are all going and voting and I appreciate
    that. I will try to be as quick as I can because of my need to
    vote.
        So first, Ms. Lynch, I read this morning that--on the
    news--you have something special from your late brother, who
    was a Navy SEAL, with you today. Tell us a little about that.
        Ms. Lynch. Well, Senator, I have with me my late brother's
    trident, the insignia of the Navy SEAL. It is something that I
    usually have with me in my office, but I often bring with me
    when I come down to the Department of Justice and I had it with
    me here today. It ensures that I have both of my brothers with
    me here today.
        Senator Schumer. Yes. Well, having read and seen and met
    the SEALs, it is an amazingly difficult thing to achieve.
        Then like you, in a different way, he was defending our
    country in one of the best ways you can, so we really
    appreciate that and appreciate your thoughts about your
    brother. Okay.
        Now, I would like to go to the next area. This morning,
    both you and Senator Sessions and I talked about a topic, it
    seems like a long time ago this morning. So I would like to
    just talk a little more about that.
        Absent appropriate authorization from DHS, I just want to
    ask, is there any Federal right for an immigrant who is not in
    lawful status to work?
        Ms. Lynch. No, there is not, to my knowledge.
        Senator Schumer. Okay. Thanks. I think earlier you said you
    had a preference that all individuals here in the United States
    work, regardless of status. I think a lot of us would share
    that preference. I think this is confusing for people because
    there literally are nearly 100 categories of statuses, of
    stati, whatever the right word is----
        [Laughter].
        Senator Schumer. They did not teach that at James Madison
    High School--for people because you have got to count green
    cards, non-immigrant visas, spouses of individuals on certain
    visas, parole, asylum, applicants for green cards, non-
    immigrant visas, immigration visas. Many people who are not
    U.S. citizens have a legal right to work. For example, green
    card holders' work visas. We admit people to work on a work
    visa.
        So let me ask you, just what did you mean when you said you
    think everyone should work regardless of status?
        Ms. Lynch. Well, certainly, Senator, when I made that
    comment I was really making more of a personal observation.
        I must admit, I have to be careful here because my father
    is here and my mother is watching. But certainly in my family,
    as we grew up, we were all expected to try and find employment
    as part of becoming a responsible adult and as part of becoming
    a responsible member of society. So I was making a personal
    observation based on the work ethic that has been passed down
    to me by my family, not a legal observation.
        Senator Schumer. Right. So again, to reiterate, you do not
    believe that there is a Federal right for an immigrant who is
    not lawful here to work?
        Ms. Lynch. No, sir. Not at all.
        Senator Schumer. Okay. I just wanted to clarify that. I
    wish Senator Sessions were here. He was not certain about what
    you said. I think now the record is 100 percent clear. Okay.
        One final question. This is about a myth--another of the
    myths that are out there--a generally deferred action policy
    eliminates case-by-case consideration and is therefore illegal.
    That is what some people are saying.
        Deferred action actually, like many Federal policies, sets
    eligibility criteria but then requires case-by-case
    consideration. So only a limited set of individuals, those with
    deep ties to this country and without a criminal record, can
    apply for deferred action under the President's proposal.
        But that is not all. After they register, pay a fee,
    undergo criminal background and national security checks, the
    President requires DHS officers to scrutinize every single case
    individually to make absolutely sure the person is not someone
    we should prioritize for deportation.
        So I have two questions in regard to that. Doesn't it make
    eminent sense for a program to set out guidelines at the front
    end and then still require careful individual consideration at
    the back end before anyone is approved?
        Ms. Lynch. Certainly, sir. That would make eminent sense
    and would provide for a careful review of every applicant.
        Senator Schumer. And I believe that is what the President
    is intending to do. We have not seen all the regulations yet,
    but that seems to me what he said.
        Couldn't one argue that other discretionary guidelines and
    programs like Federal contract bids take a similar approach? We
    lay out broad criteria, but then they review each contract,
    contract-by-contract.
        Ms. Lynch. Contract-by-contract and with vigorous
    application and screening.
        Senator Schumer. Right. Okay. I want to thank, again, my
    colleagues for deferring. I will pass not only the questioning,
    but the gavel, to Senator Graham.
        Senator Graham [presiding]. A dream come true.
        [Laughter].
        Senator Graham. It will only last for eight minutes, so I
    am going to enjoy it while I can.
        Your brother was a Navy SEAL. That has got to be--that is a
    major accomplishment. It is probably the hardest thing to be in
    all the military, so I know your family is proud of him and
    what you have accomplished.
        Do you agree with me that one of the worst possible
    outcomes is for the United States to release somebody from
    Guantanamo Bay to go back to the fight to kill an American
    SEAL, or anyone else? That we should really make sure we do not
    do that unless we absolutely have to?
        Ms. Lynch. I certainly think that anyone coming from either
    Guantanamo Bay or any of our facilities, we should take
    appropriate steps to make certain they do not place Americans
    in harm's way.
        Senator Graham. I could not agree with you more.
        We have got a 30 percent release rate, and from a SEAL
    point of view, they are usually the guys capturing these folks.
        It has got to be bad for morale if one of the guys that you
    captured wind up killing your buddy down the road. So I really
    do believe that the policy we have at Guantanamo Bay needs to
    be reviewed, and reviewed closely for not just all SEALs, but
    for all who have been fighting.
        Now, about being at war. Do you believe we are at war?
        Ms. Lynch. We are at war, Senator.
        Senator Graham. Okay. Now, I have been a military lawyer
    for 30-something years. You have been a prosecutor for a very
    long time. I believe in an all-of-the-above approach, that
    military commissions have a place in this war and Article III
    Courts have a place in this war. Do you agree with that?
        Ms. Lynch. I do, Senator. I do agree with that, by
    principle.
        Senator Graham. Now, under military law the main objective
    when you capture an enemy combatant is to gather intelligence,
    it is not prosecution. Does that make sense to you?
        Ms. Lynch. That is certainly one of the important
    objectives under military law. I would add, however, though,
    that with respect to the Article III prosecutions that I have
    been involved in through my office, a primary goal is also to
    obtain cooperation, and thereby valuable intelligence.
        Senator Graham. Here is what I would suggest to you, ma'am.
    This is the Army Field Manual. It is over 300 pages. I helped
    write the Detainee Treatment Act with Senator McCain to make
    sure that we did not torture people. I believe waterboarding is
    torture and it is illegal. But in this Army Field Manual, which
    sets the parameters for detaining people and interrogating
    them, not one time does it suggest that you should read the
    enemy combatant their Miranda rights. Do you know why that
    would be?
        Ms. Lynch. Well, I certainly think the Army Field Manual
    has proven to be a very effective way of handling high-target
    detainees.
        Senator Graham. All I would suggest, ma'am, that anybody in
    the military would reject out of hand that it is a good way to
    gather intelligence by providing the enemy combatant a lawyer.
    In World War II, even though Miranda did not exist, and all the
    wars since then, no one has ever suggested to our military that
    once you capture an enemy combatant, that you give them a
    lawyer as a better way to gather intelligence versus holding
    them under the law of war.
        So here is my recommendation to you. We have caught several
    high-value targets in the last year or two. We have read them
    their Miranda rights within days or hours of capture. You will
    never convince me criminalizing the war is the best way to
    gather intelligence.
        I want to talk to you about this. I want to have more
    flexibility than we have with the current system. If we do not
    hold some of these people under the law of war for questioning
    as an enemy combatant, then we are going to lose the ability to
    gather intelligence. The only way you can protect this Nation
    is to interrupt the next attack because the people who are
    fighting do not mind being killed.
        Can an American citizen be held as an enemy combatant?
        Ms. Lynch. Senator, with respect to an American citizen, I
    believe there would be a prohibition against holding them,
    against us holding them, as an enemy combatant.
        Senator Graham. Ma'am, that is not true. We have held
    several American citizens for a multiple period of years as
    enemy combatants: Hamdi v. Rumsfeld. Before I vote on your
    nomination, I want you to read Hamdi v. Rumsfeld and Ex Parte
    Quirin, where American citizens, collaborating with the Nazis,
    landed at Long Island and tried to attack the country. They
    were tried by a military commission. Military commission trials
    are not available to American citizens. They have to go under
    Article III. But we have under our law in Hamdi v. Rumsfeld the
    idea there is no bar to this Nation holding one of its own
    citizens as an enemy combatant.
        What recommendation--I want you to read those two cases and
    get back with me and see if that changes your mind.
        What recommendation would you give an American citizen when
    it comes to joining ISOL or Al-Qaeda? What would you tell them
    to do?
        Ms. Lynch. Senator, with respect to an American citizen, or
    anyone who seeks my opinion on joining ISOL or Al-Qaeda, my
    recommendation would be, do not do it or you will face American
    justice.
        Senator Graham. Well, not so much you will face American
    justice. You are going to get killed if we can find you.
        Ms. Lynch. You may get killed before we can find you.
        Senator Graham. That is right. But if we find you, we can
    kill you. Anwar al-Awlaki. Do you know that guy?
        Ms. Lynch. Yes. He was----
        Senator Graham. Do you think the President acted within his
    constitutional authority to use a drone against him?
        Ms. Lynch. So with respect to Anwar al-Awlaki, I am
    familiar with him as he has figured in the radicalization of
    some of the defendants who have come before the Eastern
    District of New York, as well as a very active Al-Qaeda leader.
    I am not familiar with the ways in which the decision was made
    to use the drones against him.
        Senator Graham. Let me say--let me tell you how it was
    made. There is an executive process where there are executive
    agencies that evaluate the threat that every individual
    presents to the country. In the case of an American citizen,
    there are very strict criteria. But if they meet those
    criteria, the President can order the use of lethal force. I
    promise you, in every war we have been in American citizens for
    some reason have decided to side with the enemy and they have
    been viewed as an enemy combatant, not a common criminal.
        The President of the United States, I think correctly,
    authorized a drone attack against Anwar al-Awlaki, who was the
    head of Al-Qaeda in Yemen. Would you want to look at that
    before you give me the answer? Are you comfortable with that
    process? Would you like to look at that process and get back to
    me?
        Ms. Lynch. Well, Senator, I am comfortable with the process
    as you describe it. What I think it illustrates, however, is
    the need to--as you put so eloquently at the beginning of our
    discussion--use all of the tools available to combat this war.
        Senator Graham. And I just want to make sure that, as the
    Attorney General of the United States, you understand one of
    the tools to combat this war is to use lethal force against an
    American citizen who our Government has determined to be part
    of the enemy force.
        The second tool is to hold an American citizen, or a non-
    citizen, under the law of war for the purposes of intelligence
    gathering. Those are two tools in our toolbox that have been
    used for decades. I want to make sure, as Attorney General, you
    recognize those tools are available to us in this war as we go
    forward. Read these cases and get back with me, if you could.
        Ms. Lynch. Absolutely, Senator.
        Senator Graham. Thank you very much.
        Online gaming. Are you familiar with the decision by the
    Office of Legal Counsel in 2011 to basically say that the
    prohibition in the Wire Act was limited to sporting events and
    contests?
        Ms. Lynch. I am generally familiar with the results of
    that.
        Senator Graham. Do you agree with that decision?
        Ms. Lynch. I have not read that decision, Senator, so I am
    not able to really analyze it for you. Certainly I think it was
    one interpretation of the Wire Act that was considered in the
    past.
        Senator Graham. Would you agree with me that one of the
    best ways for a terrorist organization or criminal enterprise
    to be able to enrich themselves is to have online gaming that
    would be very hard to regulate?
        Ms. Lynch. I think certainly that what we have seen with
    respect to those who provide material support and financing to
    terrorist organizations, they will use any means to finance
    those organizations.
        Senator Graham. I am going to send you some information
    from law enforcement officers and other people who have been
    involved in this fight and their concern about where online
    gaming is going under this interpretation. Thank you very much.
    From my point of view you have acquitted yourself very well.
    But I do appreciate if you would look and be able to answer my
    questions about enemy combatant status for American citizens
    and the use of lethal force.
        Ms. Lynch. Thank you, Senator.
        Senator Graham. Thank you very, very much.
        And now I will turn it over to Senator Lee. You are now the
    Chair.
        Senator Lee [presiding]. Thank you, Mr. Chairman.
        Thank you for staying with us, and even through the hectic
    vote schedule.
        I would like to go back to civil forfeiture, if that is all
    right, which is the topic we were discussing earlier before I
    left for the last vote.
        First of all, I want to get back to the question I asked at
    the outset. Do you think it is fair, is it fundamentally just,
    that someone can have their property taken from them by the
    Government without any evidence that they have committed
    wrongdoing, based solely on a showing by the Government based
    on a probable cause standard that their property might have
    been involved in the commission of a crime, perhaps without
    their own knowledge, their own consent, their own awareness on
    any level? Do you think that is fair?
        Ms. Lynch. Senator, I think that we have a very robust
    asset forfeiture program, both criminal and civil. With respect
    to civil forfeiture, I have looked at the program in general.
    Again, the Department is conducting a review of the forfeiture
    program.
        With respect to civil forfeiture, there are legal
    safeguards at every step of the process, certainly as
    instituted or implemented by my office and my understanding by
    my U.S. Attorney colleagues, so there will be judicial review
    before there can be attachment or seizure, for example, as well
    as an opportunity to be heard. But that standard must be met
    before the seizure warrant can be issued.
        Senator Lee. I understand. I understand. A lot of Americans
    do not believe that that is fundamentally fair.
        Again, that is why in many States there have been laws
    enacted that restrict the use of civil forfeiture under those
    circumstances and impose additional requirements, which is why
    I raised the concern about the process by which the Department
    of Justice has, on occasion in the past, used something known
    as adoption, whereby they will take something that could not be
    forfeited under State law in State court and they will utilize
    the resources of the U.S. Department of Justice to assist in
    the forfeiture.
        The U.S. Department of Justice retains 20 percent and then
    yields back 80 percent to the State and local law enforcement
    agencies. This is troubling. You appeared to be aware when I
    asked you about this. You appeared to be aware about an order
    that Attorney General Holder issued just about a week and a
    half or two weeks ago--I believe it was on January 16--
    restricting that. So I assume you are familiar with that order?
        Ms. Lynch. There was an order or policy directive from the
    Attorney General to the field, and as U.S. Attorney I did
    receive that, and it essentially ends the adoption program. As
    you point out, Senator, a number of States now do have a robust
    asset forfeiture program on their own.
        When the Federal program was being instituted, at least the
    research shows, many States did not have this program.
        So a lot of the local law enforcement agencies that have
    been used in the adoption program initially did not have a
    venue to effectuate legal seizure of property that had been
    used in a crime. The adoption program began several years ago,
    primarily as a response to that. That has changed. That legal
    landscape is very different, and that certainly was one of the
    reasons set forth in our discussions when the policy change was
    made.
        Senator Lee. Okay. So this order that the Attorney General
    issued on January 16th, you referred to it as essentially
    ending this adoption program--again, the program by which the
    Federal Government can assist State and local law enforcement
    agencies in circumventing their own State law restrictions on
    civil forfeiture.
        But when you read the order, you see that it is subject to
    several exceptions. One exception applies with respect--I think
    you referred to this briefly before when you and I spoke a few
    hours ago. One exception relates to property that directly
    relates to public safety concerns. Fair enough.
        Then you turn to the next page and you look at the second-
    to-last paragraph, which contains some additional carve-outs.
    This order does not apply to: (1) seizures by State and local
    authorities working together with Federal authorities in a
    joint task force; (2) seizures by State and local authorities
    that are the result of joint Federal/State investigations or
    that are coordinated with Federal authorities as part of
    ongoing Federal investigations; or (3) seizures pursuant to
    Federal seizure warrants obtained from Federal courts to take
    custody of assets originally seized under State law.
        As I see it, Ms. Lynch, this order, while purporting to end
    this adoption program, as you say, is riddled with loopholes.
    It is riddled with loopholes that effectively swallow the rule,
    which seems to be a recurring theme today, which is something
    that concerns me greatly with this Department.
        Now, I understand that this order was issued, has been
    issued prior to your confirmation--after your nomination, prior
    to any confirmation vote on your nomination. But I would just
    ask you to take into account these concerns and to work with me
    moving forward on making sure that our civil forfeiture
    programs do not get out of control.
        But would you agree with me that we really ought to find
    ways to stop Federal law enforcement agencies from helping
    State governments to circumvent their own State law
    restrictions on civil forfeiture?
        Ms. Lynch. Senator, I believe that the policy change that
    ended the adoption program certainly ends that as the problem
    that had been raised. As you pointed out, these were situations
    where local law enforcement made an initial stop or seizure, so
    the seizure was not essentially begun by a Federal agent or
    partner, and then the matter was brought to a Federal agent for
    adoption and processing through the Asset Forfeiture-Equitable
    Sharing system therein.
        The other situations to which you refer where there is
    either a Federal/State task force or a joint investigation
    really are situations where there is actually a Federal case
    from the outset and there would not be the issue of having to
    review the State laws and they would not be an option in that
    case, because again the case would be under Federal
    jurisdiction from the very beginning.
        So as you have pointed out, the initial adoption program
    did raise concerns. I understand that those have been discussed
    in the public discussion venue, as well as in law enforcement
    circles as well, about the issue where the State has a robust
    system of asset forfeiture but that system is not being used
    and the Federal system is being used instead. The adoption
    program ends that practice.
        Senator Lee. It ends it but subjects it to some very large
    loopholes. So I would just ask you to be aware of that, and I
    would like to discuss that with you more moving forward.
        Before my time expires, I want to get back to another
    question I asked earlier. Indulge me in this hypothetical
    scenario. We did not have time to fully explore it previously.
    But imagine you are in a State in which there is a 55-mile-an-
    hour speed limit. There are a lot of people who want that speed
    limit raised. Imagine that the Chief Executive of that State,
    the governor, really wants it raised to, say, 75 miles an hour.
    There is a lot of support within the legislature and among the
    public at large that there needs to be some reform to the speed
    limit law, but they cannot get to any one proposal that gets
    enough votes and so nothing happens.
        The governor at that point decides that he will announce
    that anyone who wants to drive faster than 55 will not be
    ticketed and they can apply for certification that they will
    not be ticketed if they want to drive up to 75 miles an hour.
    He says I cannot guarantee this forever, but I can guarantee it
    for the next three years, I will not be enforcing that.
        Would that, under that hypothetical scenario, not be
    tantamount to a usurpation of the legislative role that belongs
    to the legislative branch?
        Ms. Lynch. Well, Senator, with respect to your
    hypothetical, before I could provide a response I would
    certainly want to understand not just the factual framework
    that you have outlined, but the relevant laws governing the
    situation, as well as any prior State action, any actions that
    had been sanctioned, all the types of things that would go into
    rendering a legal opinion. And certainly, as I am sure you can
    appreciate, I am a careful lawyer and I would want to have all
    of that information before I could really give you a legal
    opinion as to your hypothetical situation.
        Senator Lee. Okay. I understand. I respect the great care
    that you devote to answering questions. But I would
    respectfully submit that at some point there is a limit to what
    a Chief Executive can do, whether we are talking about a Chief
    Executive in the form of a Governor at a State level or whether
    we are talking about a Chief Executive who is the President of
    the United States. At some point I would hope you could agree
    with me that there are limits to what a Chief Executive can do.
        At some point, when saying I am not going to enforce this
    law--suppose it is not speed limits, let us say it is taxes. A
    future President of the United States, whether a Republican or
    Democrat, says I do not think we ought to have any tax rate
    above 25 percent and at some point that President cannot get
    Congress to agree, so that President says I am not going to
    enforce any tax rate above a 25 percent marginal rate.
        We can think of lots of examples. At some point there is a
    limit and I hope that you will recognize that and hope that
    moving forward, should you be confirmed, that you be one who is
    willing to point out to the President of the United States that
    you do have a client. Your client is the United States of
    America.
        The chief spokesperson for that client might be the
    President himself, but your client is the United States.
    Embodied within that are the constitutional restraints that
    fall upon every officer sworn to uphold, protect, and defend
    that Constitution, including the President himself.
        I see that my time has expired. I recognize Mr. Blumenthal.
        Senator Blumenthal. Thank you, Senator Lee. As a careful
    lawyer, which I know you are, I want to try to perhaps set your
    mind a little bit at ease about a question that you were asked
    earlier. The question related to a statute that purportedly,
    according to the questioner, made the Attorney General
    responsible for determining who can take deferred action.
        One of my colleagues suggested that the President's
    Executive order is illegal because it is being implemented by
    the Department of Homeland Security and not the Attorney
    General, as the law he quoted seemed to suggest.
        Just to clarify, the statute that was quoted to you
    actually was amended in 2002. It no longer assigns
    responsibility for immigration policy to the Attorney General.
    The provision that he quoted, and another provision which more
    directly authorizes what President Obama has done, are to be
    implemented by the Secretary of Homeland Security.
        So, good news: the President has done nothing wrong and you
    do not have to run home and look up the statute and get ready
    to implement a whole new area of law. You have enough to do, or
    will have enough to do already.
        I want to personally say that I appreciate that my
    colleagues are not making immigration policy the kind of
    turning point for their decision, or to put it a different way,
    they are not making this nomination a referendum on the merits
    of the President's immigration policy and decisions.
        I must say I agree with the President's action and support
    him, and so do sheriffs and chiefs of police across the
    country.
        I am going to ask, if there is no objection, that letters
    that I have from towns as varied as Marshalltown, Iowa; Salt
    Lake City, Utah; South Bend, Indiana; be made a part of the
    record, and also a letter from the National Task Force to End
    Sexual and Domestic Violence Against Women.
        Both letters--all these letters make the case that the
    President's Executive action not only helps immigration
    officials target their scarce resources, but it also helps
    State and local law enforcement to secure cooperation with
    immigrant communities and identify potential criminals within
    their jurisdiction. So the beneficiaries of the President's
    policies are not just the immigrants, but also law enforcement
    officials and people who are better protected by virtue of the
    activities of those law enforcement officials. If there is no
    objection, I ask that these materials be entered into the
    record.
        Senator Lee. Without objection.
        [The letters appear as submissions for the record.]
        Senator Blumenthal. Thank you.
        I want to turn, briefly, to another area where you have
    some very profoundly valuable experience. In the wake of the
    events in Ferguson, Missouri, and New York City of last year,
    many of us on the Committee and many around the country who
    have backgrounds in law enforcement are deeply concerned with
    making sure the public understands the vital role that our
    police and our law enforcers in general play, as well as proper
    training and discipline that should be provided to those police
    and law enforcers.
        I wonder if you could talk about your experience in
    addressing the concerns about law enforcement in the wake of
    the Abner Louima case, where you had a professional
    involvement. I think how you feel, that that experience and new
    policies at the Department of Justice might better help the
    Department of Justice and State and local police.
        I would mention that I led an effort to pass during the
    last session a statute relating to death in custody. It is the
    Death in Custody Reporting Act. It requires local and State
    police to report deaths in custody, along with correction
    officials. It is actually a reauthorization of a law that
    expired in 2006, just a modest step toward gaining more facts.
    But I think there are obviously two sides to this kind of issue
    and I would very much appreciate your perspective on it.
        Ms. Lynch. Certainly. Thank you, Senator. With respect to
    my work on the Louima case, I was certainly privileged to be a
    part of the trial team that handled that case. I think what
    often is not commented on, and perhaps it is not even widely
    known, is how essential the support and contributions and the
    actual work of the NYPD was to both the investigation and the
    prosecution of that case.
        Our investigative team was comprised of both FBI agents and
    New York City police officers who knew that unless we held each
    other accountable, that unless law enforcement acted to hold
    bad actors accountable, all of law enforcement would suffer.
    And certainly one of the most painful things to watch during
    that case was, as is often happening now, the understandable
    anger and tension over it, but the backlash against larger
    groups of police officers.
        That is, in fact, one of the dangers of not addressing
    police misconduct, is that not only are the officers who work
    hard every day and work to not only follow the rules, but to
    enhance the relationship between law enforcement and the
    community. Those officers are not rewarded, but they often get
    painted with the same brush as officers who may cross the line.
        That is one of the greatest harms that we see from these
    types of cases. I have been privileged to work with dedicated
    police and agents my entire career and I think that there are
    no greater teachers and no greater instructors for a young
    prosecutor than an experienced police officer.
        One of the things that we found most useful after the
    Louima case was encouraging community policing, which the NYPD
    was doing on its own, and a number of officers did very, very
    well. I have seen situations where, when I was handing out
    awards to officers and agents for working on a case in a mostly
    minority area, cleaning out a housing project of a violent
    crack organization, the residents asked if they could also come
    and hand out plaques to those same officers and agents, and
    they did so with plaques that said, basically, thank you for
    giving us back our safety, our security, and our houses,
    because there was a collaboration there. There was a
    recognition that this is a joint effort. This is a shared
    project that we all have between law enforcement and all the
    communities that we serve to keep all of us safe.
        We also have to work more, and certainly, if confirmed as
    Attorney General, one of my priorities will be to ensure that
    our police officers have the tools that they need to do their
    jobs and to do them safely. Senator, I spent several weekends
    this past month attending the funerals of Detectives Ramos and
    Liu in New York City. To use the word ``heart-wrenching'' is,
    frankly, an understatement. The sense of loss and grief with
    this crime that has really touched the heart of New York City
    was palpable on every street corner. We cannot allow our law
    enforcement officers to be targets like this. We must provide
    them the protections they need to do their jobs as well.
        So certainly it is a priority of mine. I look forward to
    working with you to address the legislation that you described
    as well because the more we can get adequate information about
    these deaths in custody, the more we can put effective
    regulations, rules, and training in place to prevent them.
        Senator Blumenthal. Thank you. Thank you for that excellent
    answer. I can tell you that the grief over the loss, the
    assassination of those two brave and dedicated police officers,
    was shared in Connecticut. As a former United States Attorney,
    as well as a State Attorney General, my own experience has been
    that some of the strongest condemnation of improper conduct or
    impropriety on the part of police officers comes from the
    police and other law enforcement themselves, and they have the
    toughest job--one of the toughest jobs, in my view--that exists
    in public service.
        I hope that the public appreciates it and that, as Attorney
    General, you will work with Congress to try to educate and make
    the public aware about the tremendous challenges they face day
    in and day out and the courage and strength that they
    demonstrate. So I thank you for that answer, and thank you
    again for being here today.
        Thank you, Mr. Chairman, whoever the Chairman is.
        [Laughter].
        Senator Lee. It is a flexible answer.
        Senator Blumenthal. Well, I know that the Chairman is the
    Senator from Texas.
        [Laughter].
        Senator Blumenthal. That is a nice answer to that question.
        Senator Cruz [presiding]. Ms. Lynch, thank you for your
    endurance in what has been a long, extended hearing. I would
    ask in this round of questions if you could try to keep your
    answers brief because we have got to return to votes on the
    floor.
        In the prior round, you and I had a conversation about the
    OLC opinion and the President's Executive amnesty. You stated
    your agreement with the legal reasoning in that OLC opinion. I
    would like to explore the limits of that reasoning. As you
    know, any legal theory that is being put forth to justify
    Government power naturally raises the question, What are the
    limits of that power? One of my greatest concerns about the
    Holder Justice Department is that at every turn, when asked,
    ``What are the limits on Government power?'' the answer has
    been, ``There are none, there are none, there are none.''
        So let us talk about the limits of the prosecutorial
    discretion power. The OLC memorandum justifies Executive
    amnesty, in part based on prosecutorial discretion.
        Initially that was limited to some 800,000 people in the
    original DACA, then in the subsequent Executive amnesty that
    expanded to 4 or 5 million people.
        My first question to you is, in your understanding of
    prosecutorial discretion, is there anything to prevent that
    from being expanded from 4 or 5 million people to all 11 or 12
    million people who are currently here illegally?
        Ms. Lynch. Well, Senator, as I read the legal opinion, it
    was focusing on how the Department of Homeland Security could
    best execute its Executive discretion in prioritizing removals
    of the most dangerous of the undocumented immigrants among us.
        Then with respect to those who would be a low priority, it
    focused on the legal framework for setting up a deferral
    program. As I also read the opinion, it went through a legal
    analysis that indicated that part of the request did not have
    the requisite legal framework and should not be implemented. My
    understanding is that that particular part of the request was
    not implemented.
        So I think that with respect to any action, certainly,
    should I become confirmed as Attorney General, I would
    undertake a very careful legal analysis based on all of the
    facts presented to me by either the White House or whatever
    agency raises the issue.
        We would look at all of the precedent, congressional
    action, the relevant statutes, and carefully explore whether or
    not the requested action did have a legal framework. If there
    was, in fact, a reasonable basis for it, as was outlined in the
    opinion that I read, that information would be provided. But as
    also was outlined in the opinion that I read, where the legal
    framework did not exist to support the request or the proposed
    action, that would have to be told to the requesting
    Department.
        Senator Cruz. Ms. Lynch, let me try again because you
    described the memorandum, but I asked a pretty straightforward
    question: Would prosecutorial discretion allow the President to
    decline to enforce immigration laws against all 11 to 12
    million people here illegally?
        Ms. Lynch. Senator, prosecutorial discretion, as a tool,
    certainly as I have used it as a career prosecutor and U.S.
    Attorney, would focus on which cases to prosecute and which
    types of charges to bring. It would not apply to the situation
    that you have outlined, so I am sorry if I am not able to
    answer your hypothetical in the way in which you are
    requesting.
        As I have utilized prosecutorial discretion throughout my
    career, it has been with the presentation of cases before me
    and determining the best way to focus limited resources.
        Senator Cruz. Well, and of course this is not simply
    prosecutorial discretion because in addition to stating that
    Federal immigration law would not be enforced with respect to
    somewhere between 4 and 5 million people, the President also
    announced that the administration would be printing work
    authorizations in direct contravention of Federal law.
        Now, are you familiar in your practice as U.S. Attorney,
    when you have declined--when you have used prosecutorial
    discretion to prioritize prosecuting one crime versus another,
    have you ever engaged in printing up authorizations for one set
    of individuals to violate the law, to affirmatively violate the
    law, which is what these work authorizations consist of?
        Ms. Lynch. Senator, in my practice as a career prosecutor
    and U.S. Attorney I have focused on bringing the strongest,
    most effective cases based on the facts and the law that have
    been presented to me, also when referring those cases to other
    law enforcement agencies should my venue not be the most
    appropriate one there.
        With respect to----
        Senator Cruz. Ms. Lynch, I am sorry to interrupt but we are
    on limited time. What I asked is if, in your practice, you ever
    issued authorizations to violate the law. That--I am certain
    the answer is ``no.'' But am I correct in that?
        Ms. Lynch. Senator, in my practice I focus on building the
    most strongest, most effective cases against the perpetrators
    who come before me and referring them to other jurisdictions if
    I am not the appropriate venue. It would not be a part of my
    responsibility----
        Senator Cruz. Ms. Lynch, you are----
        Ms. Lynch. To make a determination in the matter you are
    referring to.
        Senator Cruz. Ms. Lynch, you are a very experienced
    prosecutor. You have asked questions and had witnesses decline
    to answer. This is a simple question: Has your office issued
    authorizations for individuals to violate Federal law?
        Ms. Lynch. Senator, as the U.S. Attorney, our office is not
    involved in issuing authorizations for anyone to work or not
    work, or to engage in various activities. We are not a
    licensing authority so I am just not able, unfortunately, to
    answer the question as put to me.
        Senator Cruz. So your office has not. Are you aware of a
    precedent for the Federal Government doing what the
    administration is doing right now, which, it has hired over
    1,000 people, it is printing millions of authorizations for
    individuals to violate Federal law. That is a remarkable step
    and it is a step that goes much further than simply
    prosecutorial discretion. Are you aware of any precedent for
    hiring over 1,000 people to issue authorizations for
    individuals to violate Federal law?
        Ms. Lynch. Senator, I am not aware of the practices that
    you are referring to now, nor am I aware of how the particular
    remaining portions of the Executive action are being
    implemented. So I am simply not able to comment on the
    hypothetical as presented to me, or the particulars that you
    have given to me. So I am sorry I do not have the information
    to answer your question.
        Senator Cruz. Well, then let me understand the limits of
    the legal theory you are putting forth because you, in prior
    questioning, embraced the prosecutorial discretion argument. So
    Senator Lee asked you a minute ago--let us take the
    hypothetical Senator Lee asked you about. If a subsequent
    President, let us say President Cornyn, is sworn in in January
    of 2017, and if President Cornyn decided that he was going to
    instruct the Secretary of Treasury not to collect any taxes in
    excess of 25 percent, to exercise prosecutorial discretion and
    not collect the taxes. In your legal opinion, would that be
    consistent with the Constitution?
        Ms. Lynch. Senator, before I could render a legal opinion
    on the hypothetical as presented to me I would want to know the
    entire scope of the action, but also have the time to gather
    all of the legal precedent, the cases, congressional actions,
    any other similar or dissimilar actions where that particular
    type of action might have been considered.
        So I would certainly want to have all of that before I
    provided a legal opinion in terms of the hypothetical that you
    have presented to me.
        Senator Cruz. So you are unable to give any legal judgment
    to this Committee today on whether a subsequent President could
    decline to enforce the tax laws as they are written?
        Ms. Lynch. I think with respect to current or subsequent
    presidential action there would have to be, as in every case, a
    thorough review of the relevant law, the precedent,
    congressional precedent, the statues in issue, in conjunction
    with whatever action was being proposed, to see if there was in
    fact a legal basis or whether there was not a legal basis for
    the action being proposed.
        Senator Cruz. Well, and let me ask--and this will be my
    final question--your understanding of prosecutorial discretion.
    Would it allow a subsequent President, President Cornyn, to
    state that there are other laws that the administration will
    not enforce? Labor laws, environmental laws. Would it allow a
    President Cornyn to say, every existing Federal labor law shall
    heretofore not apply to the State of Texas because I am using
    my prosecutorial discretion to refuse to enforce those laws? In
    your judgment, would that be constitutional?
        Ms. Lynch. Well, I certainly cannot imagine President
    Cornyn taking that step.
        [Laughter].
        Ms. Lynch. But with respect to the hypothetical that you
    present, again, Senator, I would have to know what legal basis
    was being proposed for that and certainly I would review that
    law, and if I were the person providing advice to future
    President Cornyn, advise him as to whether or not there was a
    legal framework for it or whether there was not a legal
    framework for it. If there was not, that would be the advice
    that I would provide to him.
        Senator Cruz. I must say, I find it remarkable that you are
    unable to answer that question. I can answer it
    straightforward: It would be patently unconstitutional for any
    subsequent President to refuse to enforce the tax laws, or the
    labor laws, or the immigration laws for the very same reason
    that President Obama's actions refusing to enforce immigration
    laws are unconstitutional. It is discouraging that a nominee
    who hopes to serve as Attorney General either will not--will
    not give a straightforward answer to that question.
        My time at this point has expired, so I recognize Senator
    Franken.
        Senator Franken. Thank you, Senator, Mr. Chairman.
        I am sorry, I am just a little shook up about this
    President Cornyn thing.
        [Laughter].
        Senator Cornyn. It is your worst nightmare.
        Senator Franken. Okay. I got here and suddenly Cornyn was
    President and my world had changed.
        [Laughter].
        Senator Franken. I would like to ask you, Ms. Lynch, about
    something that has been a focus of mine since I first got to
    the Senate. I got there a little early. It took me a while to
    get seated. It is about the financial meltdown and how it
    happened and how it caused the Great Recession.
        And it is about the credit rating agencies and their
    business model. And basically what happened in the lead-up to
    the meltdown was that banks would put out structured financial
    products, subprime mortgaged-backed securities, say. And then
    they would pay--or I am sorry, yes, they would choose a rating
    agency like Standard & Poor's or Moody's or Fitch to rate it
    and give them a rating.
        And they would pay them, but they would choose them and it
    turned out that a lot of junk got triple-A ratings. And this is
    all kinds of--not just subprime mortgage-backed securities, but
    then bets on those derivatives and then bets on the bets and
    then bets on the bets on the bets. So the reason you had a
    house of cards collapse is because you had all these bets based
    on the original piece of junk and there was an incentive, a
    total conflict of interest, which is: The credit rating
    agencies knew that if they gave a triple-A rating, they would
    get the next gig. So that is what they did. And then Chairman
    Levin of the Permanent Subcommittee on Investigations
    subpoenaed some emails from within S&P and they basically were
    emailing each other, we have got to give these things that are
    not good--the financial products--better ratings so we can keep
    our share of the business.
        And I have been fighting to get the--I had actually a
    bipartisan piece in the Senate side of what is now called Dodd-
    Frank, the Wall Street reform bill, to fix this. It has not
    totally been fixed and I am on the SEC to do it. But this is
    what I am getting to: the Department of Justice has a big
    lawsuit against S&P. And I think it is for about $5 billion or
    $6 billion and my understanding is, it may be being settled.
    But, I just do not want this to stop with S&P, with the one
    agency.
        And actually SEC just did a settlement also with S&P on
    this same practice that still exists. So what I want to know
    is, will you take an aggressive approach to holding these
    rating agencies--including, but not limited to, S&P--
    accountable for their role in the financial crisis from before,
    and their current role in what they are doing?
        Ms. Lynch. Senator, certainly with respect to the financial
    institutions, including the ratings agencies, if I am fortunate
    enough to be confirmed as Attorney General, I do look forward
    to taking a very aggressive stance in reviewing their conduct.
    As you indicated, not just past conduct, but current and
    prospective so that we can prevent these types of harms from
    occurring again.
        Senator Franken. Because Minnesotans lost their homes, they
    lost their savings, they lost their jobs, and millions of
    Americans did this because of these guys. And I do not think
    they have learned their lesson, and I do not think they have
    been incentivized to learn their lesson.
        Okay. I am told I have to leave in two minutes. So I just
    want to talk a little bit about transparency in NSA. I have one
    minute. That took a minute, what I did.
        Well, I just want to encourage us to work together if you
    should be Attorney General on transparency in Government
    surveillance because I think that Americans have the right to
    know to the extent that it is not harmful, obviously, what
    surveillance is like. For example, how many Americans' data was
    captured, say, in the metadata, but how much was actually
    accessed. And I think that had we done that, and I voted
    against these two programs, 215 and 702, originally, because
    they did not have enough transparency, and I think it is
    absolutely essential that Americans know to the greatest degree
    possible without jeopardizing our safety what is going on. So
    just your commitment to work together on that.
        Ms. Lynch. Absolutely, Senator.
        Senator Franken. Okay. Thank you, Ms. Lynch.
        Ms. Lynch. Thank you, sir.
        Senator Franken. Mr. President.
        [Laughter.]
        Senator Cornyn. How are you holding up?
        Ms. Lynch. I am fine, sir.
        Senator Cornyn. Hanging in there? Good.
        Forgive me for jumping around a little bit, but there are a
    number--I know there have been a lot of different areas that
    you have taken questions on and I just want to fill in some of
    the gaps.
        First of all, do you recognize the Second Amendment right
    to keep and bear arms as an individual right?
        Ms. Lynch. Yes, Senator. And I believe that has also been
    decided by the Supreme Court as well.
        Senator Cornyn. The Attorney General--the current Attorney
    General and the Department of Justice had been involved in a
    program known as Operation Choke Point that you are probably
    familiar with to some extent. But this is a collaboration by
    the Department of Justice and the Federal Deposit Insurance
    Corporation, who have partnered to discourage banks and other
    financial institutions from doing business with certain types
    of businesses including lawful firearms dealers. Documents from
    Operation Choke Point obtained by the House Oversight Committee
    showed that the DOJ and FDIC used intimidation tactics and
    categorized licensed and law-abiding gun dealers as having
    engaged in ``high-risk activity'' similar to financial scams,
    prostitution services, pornography, racist materials, gambling,
    and drug paraphernalia.
        I would just like to ask you, do you agree that it was
    inappropriate for the Department of Justice and the FDIC to
    associate licensed and law-abiding businesses with these types
    of other obviously illicit activities?
        Ms. Lynch. Senator, I appreciate your concern over any
    Department initiative. My familiarity with the Choke Point
    Initiative is based upon my understanding that it focuses on
    payment processing companies that are involved in defrauding
    consumers. And I am not aware enough of the underlying types of
    businesses that the consumers themselves may have been
    patronizing to know about the fact that you raise.
        Certainly with respect to any initiative that the
    Department of Justice engages in, should I be confirmed as
    Attorney General, there is no room for improper bias or even
    personal views. We must follow the law where it leads us. And I
    certainly hope that should you have concerns about this program
    or any other, that you would feel free to share them with me
    and that I would look forward to working to provide you with as
    much information as we could about them.
        Senator Cornyn. I appreciate that. I have heard from
    constituents back home in Texas from financial institutions
    that they have been unable to continue long-standing banking
    relationships with their own lenders because of some of these
    tactics. And I will take you up on your offer to visit with you
    more about those, the specifics of those cases, as well as the
    topic I mentioned earlier at a later date. I appreciate that.
        Senator Leahy, who just arrived, and I have joined in an
    unlikely partnership on freedom of information areas. He and I
    both agree that it is absolutely critical to the functioning of
    our democratic form of Government that the people have access
    to as much information as they can possibly get, so they can
    make their consent to the laws that are passed informed
    consent.
        And so I want to ask you, in the Department of Justice's
    evaluation of the Eastern District of New York under your
    management, compliance with the Freedom of Information Act was
    one of the few areas to receive criticism. In fairness to you,
    it is one of the few areas in which there have been critical
    comments. But do you believe that the Government should operate
    under a presumption that information should be open to the
    public unless otherwise precluded by law?
        Ms. Lynch. Senator, I share your concern and your view that
    the Freedom of Information Act is an important tool for the
    American people to know about the functioning of all Government
    agencies, including the Department of Justice.
        With respect to my tenure as U.S. Attorney, during the
    evaluation system which I found very, very helpful, I
    specifically asked the evaluator to look at our management
    systems and our support staff systems to make sure that we were
    in compliance and to bring any issues to our attention.
        They raised this issue, which was of great concern to me.
    We immediately took steps to rectify the issues that we found
    within our own office functioning. We have added increased
    personnel to handle Freedom of Information Act requests. We
    work closely with the Department of Justice to ensure that they
    are handled as expeditiously as possible.
        And so I actually found it a very helpful evaluation
    process. And I find that I have learned the most when someone
    has pointed out to me an area in which I might improve.
        Senator Cornyn. And you took corrective action?
        Ms. Lynch. Absolutely, immediately.
        Senator Cornyn. President Obama in 2009 mandated that
    Government agencies--executive branch agencies should operate
    under the presumption that information should be open unless
    otherwise prevented by some rule or some other law.
        The current Department of Justice has taken the position
    that information should be withheld if release of the
    information will cause foreseeable harm. In other words, they
    articulated a different standard than the President himself
    called for in 2009, which is this presumption of openness
    absent some legal prohibition against disclosure.
        Senator Leahy and I have been working on some legislation
    which would actually codify the President's mandate, the
    presumption of openness. Is that a standard that you could
    support, and would you work with us in your administration, if
    confirmed, to make sure that this presumption of openness
    applies across Government agencies and that information would
    only be withheld from the public if some law or other rule or
    regulation precluded?
        Ms. Lynch. Senator, I share your view in the importance of
    the Freedom of Information Act and in transparency. And
    certainly I look forward to working with both you and Senator
    Leahy to review that type of legislation. And I hope that in
    the full and fair exchange that I believe we will have, as we
    have had over the past few weeks, we can discuss ways in which
    to make as much information available as possible while
    protecting vital interests.
        I certainly feel that with respect to the Department of
    Justice, should I be confirmed as Attorney General, one of the
    areas that we always have to be concerned about are ongoing
    investigations and witness safety and security. But I feel that
    through discussing these issues, it is something that we could
    work together on.
        Senator Cornyn. And finally, I know the Chairman alluded to
    the gunwalking program known as Fast and Furious, which was the
    subject of a lot of oversight efforts by this Committee and
    others in the House, and then to our surprise Attorney General
    Holder claimed executive privilege as to certain communications
    and documents, even though the documents in question did not
    involve the President or his staff, and the President himself
    confirmed that claim of executive privilege.
        As you may know, that claim is currently in litigation and
    I would ask your commitment to take a look at that with a fresh
    set of eyes to see whether you believe that the Department's
    defense and continued refusal to deny Congress access to these
    documents is justified under a claim of executive privilege.
    Would you pledge to take a fresh look at that and render your
    own independent judgment about that?
        Ms. Lynch. Well, certainly, Senator, with respect to that
    matter, it is the subject of ongoing litigation and I really do
    not know when it is likely to be resolved. So I do not know
    what stage it will be in should I be so fortunate as to be
    confirmed. Certainly, however, I look forward to learning more
    about it once I am able to, again, should I be confirmed, and
    in reviewing that as well as any other matters.
        Senator Cornyn. Just so we understand each other and this
    will be my last question, if you are the next Attorney General,
    you can decide to settle that case if you decide that the claim
    of executive privilege was not well taken. In other words, if
    there is no legal impediment based on a claim of executive
    privilege to disclosing those documents, you, as the next
    Attorney General could resolve that, couldn't you?
        Ms. Lynch. Certainly. I believe that the ability to resolve
    any number of cases would rest within me should I be confirmed
    as the next Attorney General.
        Senator Cornyn. Thank you.
        Ms. Lynch. Thank you, Senator.
        Chairman Grassley. I hope that when we are done here that
    you do not get this attitude that the way this chaotic place is
    run, why should you be working with a Congress of the United
    States that does not always work this way. So I am just--it is
    a little tongue in cheek. But----
        Senator Leahy. It does not always work this way.
        Ms. Lynch. Well, Senator, it has been a privilege to watch
    the peaceful transfer of power that has gone on this afternoon.
        [Laughter.]
        Senator Leahy. I did not give him the great big gavel.
        [Laughter.]
        Chairman Grassley. Okay. Here we go. Before I read my
    question, I want to kind of tell you, my view is, that there is
    a very legitimate reason for between a counsel that is advising
    the President for that to have a very tight counsel/client
    relationship. Then we get into Fast and Furious and then 64,000
    pages, and I will go into some detail here that I want you to
    comment on that is maybe an argument that was privileged, but
    is it really privileged?
        So let me go to where you maybe had not a direct role, but
    you were Chair--you chaired the Attorney General's Advisory
    Committee. So you had a chance to watch your predecessor
    closely in the job that you are now seeking. And I assume that
    you learned lessons from that experience.
        What is the biggest mistake that Attorney General Holder
    made in the handling of the Fast and Furious controversy which
    involved this privileged information that we are talking about?
    And what would you have done differently?
        Ms. Lynch. With respect to the privileged litigation which
    is ongoing, as a Chair of the Attorney General's Advisory
    Committee and a member before that, I was given general
    information about the nature of the investigation itself and
    the problems that lay therein. Simply put, Senator, the focus
    in terms of providing information to the U.S. Attorney
    community was more on the problems with the actual underlying
    firearms investigation. And so I was not privy and have not
    been privy to any of the decisions or discussions or rationale
    behind the litigation over documents or privilege. That is
    something that has not been shared with the U.S. Attorney
    community. So I am not able to really categorically answer one
    way or the other as to how that has been managed.
        I certainly think that the Attorney General himself has
    said that he's made mistakes in general. And he's been very
    open and frank about that. With respect to that litigation, I
    simply do not have information about that. You are correct, I
    did receive general information about the underlying case
    because it did represent an investigation that certainly the
    review--the Inspector General's report--indicated was not
    handled in the best way and was not the way in which those of
    us in the U.S. Attorney community would have wanted to see that
    case operate at all.
        Chairman Grassley. Okay. Well, then you have probably have
    answered half of that in this sense. Would you have done
    anything differently?
        Ms. Lynch. With respect to the firearms investigation?
        Chairman Grassley. No, the way that the Attorney General
    handled it?
        Ms. Lynch. Well, with respect--certainly I think that
    having the Inspector General review the firearms investigation
    itself and come up with the issues that occurred within the
    office and the handling of the case was something that I think
    will be useful to the Department of Justice as it seeks to
    prevent similar mistakes being made and improved training and
    the like. With respect to the litigation over the documents,
    again, I simply have not been involved in those decisions. And
    so I am not able to say what the options were that the Attorney
    General had that I would have chosen in a different manner. So
    I am sorry for not being able to provide you with a direct
    response to that question.
        Chairman Grassley. Let me go back to the privilege and you
    may have answered this, but I want to read my question anyway.
    In my opinion, one of the Attorney General's biggest mistakes
    was not following through on the President's promise to be the
    most transparent administration in history. Instead, he became
    the first Attorney General in the history to be held in
    contempt of Congress with a bipartisan vote that included 17
    Democrats.
        Attorney General Holder finally delivered 64,000 pages of
    documents to the House three years after the House subpoenaed,
    two years after the contempt vote, and only after the House
    went to court. So when push came to shove, he did not even try
    to argue to the judge that those 64,000 pages were privileged.
        Now, do you think it is appropriate to withhold so many
    documents for so long, especially even if the Justice
    Department admits that there was no valid privileged claim? And
    if so, why? And if not, please explain why you would do it
    differently?
        Ms. Lynch. With respect to any issue where this body seeks
    information from the Department of Justice, certainly in
    documentary form, should I be confirmed as Attorney General, I
    would carefully review the request and work to provide as much
    information as could be provided consistent with our law
    enforcement investigative responsibilities.
        That would be my pledge to you going forward, Senator.
        With respect to every issue of oversight that you would
    bring to my attention, I certainly hope that you would bring
    those issues to my attention.
        Chairman Grassley. Can I ask the same question in my own
    way in the sense of the way you might talk about it at a town
    meeting? So people are mad about, you know, a lot of things the
    President might do that you call Executive edicts or in this
    case withholding information. In this case, the Attorney
    General decided to withhold it.
        Okay. If somebody asks me about Fast and Furious at a town
    meeting, then I get into the fact that as far as I know the
    President knew nothing about it and that this is between me and
    the attorney--or the Attorney General and the Congress, I
    should say. I only say ``me'' because I started this
    investigation before the House took it over.
        Then when they withhold 64,000 pages as opposed to a few
    pages where maybe the President really knows something about
    something that you can legitimately withhold it. Then I say to
    my town meeting, you know, when 64,000 pages are supposedly
    privileged, then I wonder, what does the President know about
    it if they can be protected that way?
        Well, now the Attorney General did not argue that they were
    privileged. They were just given up. So you see the problem it
    causes for me. And how far does executive privilege go? And it
    surely does not go to 64,000 pages; if it does not, can't you
    assume that the President knew a lot about Fast and Furious
    when he says he did not know anything about it? Do you see the
    problem that I have?
        Ms. Lynch. I certainly can understand the frustration when
    any party is seeking discovery or seeking information and
    another party is not able to provide it, based upon the claim
    of privilege or whatever that claim may be. Particularly a body
    that has oversight responsibility over the Department of
    Justice and is seeking to fulfill that obligation and that
    mandate.
        Certainly, with respect to the volume of documents, not
    knowing the documents, I am not able to comment on how
    appropriate or not that would be. And certainly, fortunately,
    it was not civil litigation when it might have been a larger
    number of documents was my experience as a young attorney.
        Chairman Grassley. But I hope you at least understand why
    it is frustrating to me the way this whole thing was handled.
        Let me move on. As Senator Graham mentioned: in 2006, you
    cosigned a Supreme Court brief on partial-birth abortion. I
    believe you told him your primary concern was the impact the
    law would have on law enforcement more broadly if upheld. That
    brief argued the Federal Partial-Birth Abortion Ban Act was
    unconstitutional and that partial-birth abortion ``procedures
    are sometimes the best means to preserve a woman's health.''
    The Supreme Court, along with a majority of Americans,
    disagreed with any position taken in opposition of that
    legislation, I assume as well as your position. The Supreme
    Court held there is ``uncertainty (in the medical community)
    over whether the barred procedure is ever necessary to preserve
    a woman's health.'' Just one question. Judging by your
    questionnaire, it does not look like you have added your name
    to a lot of Supreme Court briefs. Of all the cases that you
    could have become personally involved in, why did you pick this
    particular case? Was that the only case that raised the
    concerns you mentioned to Senator Graham? And I would like to
    get this on record, because I assume you read the brief,
    otherwise you would not have signed it; would that be right?
        Ms. Lynch. Yes, Senator, that would be correct.
        Chairman Grassley. So then can you say why did you pick
    this particular case if you have not done it very often? And
    was this the only case that raised concerns that you mentioned
    to Senator Graham.
        Ms. Lynch. Thank you, Senator. With respect to the amicus
    brief, I joined a group of former Department of Justice
    personnel, former United States Attorneys, as well as former
    Assistant Attorneys General. And our focus was on our concern
    that the way in which the law would be implemented might put
    prosecutors at variance with doctors and their medical
    treatment and might raise an issue that prosecutorial
    discretion had been constrained in some way by the political
    debate.
        We were not focused on the actual issue involving the
    procedure itself. In fact it was our concern that as lawyers we
    did not have medical information or the medical capability to
    evaluate that procedure and could be dealing with a situation
    where a doctor may say something different from what the law
    might require us to do. And that was the concern that was being
    raised in that brief.
        The Supreme Court did resolve the issue on the part of the
    statute itself and certainly that is the law of the land now.
        Chairman Grassley. Okay. Senator Leahy.
        Senator Leahy. Thank you very much.
        Chairman Grassley. And for both your benefit and for the
    nominee's benefit, I have been told that I have two additional
    Members that want to come over to ask a second round.
        Senator Leahy. Are they going to come today?
        Chairman Grassley. They are going to come just as soon--
    yes. I am going to make sure they come today, just as soon as
    the vote is over, I have been told. And you and I will have to
    go vote, too.
        Senator Leahy. Okay. Why don't we just recess and we will
    go vote and then we will come back?
        Chairman Grassley. We will recess. Thank you for being
    patient.
        [Whereupon, at 5:06 p.m., the Committee was recessed.]
        [Whereupon, at 5:12 p.m., the Committee reconvened.]
        Senator Cruz [presiding]. Welcome back.
        Ms. Lynch. Thank you, Senator.
        Senator Cruz. In an exchange we just had earlier this
    afternoon, you detailed a very broad understanding of the
    President's potential authority and, try as I might, I could
    not find a hypothetical that you consider to be beyond the
    power of the President.
        I would like to ask you now a question that I have asked
    Attorney General Holder and that he repeatedly declined to
    answer, and it is in a different context. It concerns the civil
    liberties and privacy rights of Americans and drone policy.
        My question to you is, in your legal judgment, is it
    constitutional for the Federal Government to utilize a drone
    strike against an American citizen on U.S. soil if that
    individual does not pose an imminent threat?
        Ms. Lynch. Senator, certainly, I am not aware of legal
    authority that would have authorized that nor am I aware of a
    policy seeking authorization to do that. If you could, share
    more information with me.
        Senator Cruz. My question is about the constitutional
    limits on the Federal Government's power. Attorney General
    Holder repeatedly declined to answer the question about whether
    it is constitutional for a drone to use lethal force against an
    American citizen on U.S. soil if that individual does not pose
    an imminent threat.
        Now, let me be clear. I think the answer to this is very
    easy. My question to you is, is it constitutional for the
    Federal Government to do so?
        Ms. Lynch. Senator, I think with respect to the use of
    lethal force by any means, one would always want to look at the
    law enforcement issues involved there. And certainly, if you
    could provide more context there, I could place it in the scope
    of either a case or an issue that I might have familiarity
    with.
        Senator Cruz. Ms. Lynch, it is in the nature of a
    hypothetical. But you are certainly aware that the Federal
    Government is currently using drone strikes overseas.
        The Federal Government also maintains drone surveillance
    domestically here at home. This Senate had an extended debate
    on the limits of Federal Government authority with respect to
    the privacy and civil rights of American citizens.
        And I am asking you, in your view, does the Constitution
    give any protection to American citizens? Does the Constitution
    allow the Federal Government to do what it has done overseas,
    utilized lethal force from a drone, could it do so against an
    American citizen here at home if that individual did not pose
    an imminent threat?
        Ms. Lynch. Senator, with respect to the use of, as I said
    before, of lethal force by any means, be it drone or someone on
    the street, the use of lethal force is generally regulated by
    either police guidance or by the nature of the interaction.
        Based on what you were describing to me, I do not see
    interaction between the American citizen that you are referring
    to and anyone to generate the type of lethal force that you are
    referring to.
        Senator Cruz. I am disappointed that like Attorney General
    Holder, you are declining to give a simple, straightforward
    answer and, in fact, what I think is the obvious answer of
    ``no,'' the Federal Government cannot use lethal force from a
    drone to kill an American citizen on American soil if that
    individual does not pose an imminent threat.
        I do not view that as a difficult legal question and,
    indeed, it demonstrates what I think has been the consistent
    failing of this administration's approach to constitutional law
    is that it always, always, always opts in favor of Government
    power.
        Let me ask you a different question. This administration's
    Department of Justice went before the United States Supreme
    Court and argued that law enforcement could place a GPS on any
    American citizen's automobile with no probable cause and no
    articulable suspicion.
        In your legal judgment, is placing a GPS on the automobile
    of the men and women gathered here with no probable cause or
    articulable suspicion, is that consistent with the Fourth
    Amendment's protections of American citizens?
        Ms. Lynch. I believe the Supreme Court has resolved that
    issue, Senator, and I believe that law enforcement agencies
    seeking to use that type of technique would need to obtain a
    warrant.
        Senator Cruz. You are correct. The Supreme Court resolved
    that issue. It resolved it unanimously, 9-0. It rejected the
    Holder Justice Department's position.
        My question is, if you were Attorney General at the time,
    would you have agreed with that argument that law enforcement
    can place GPSs on any American citizen's car?
        Ms. Lynch. Well, certainly, Senator, I was not involved in
    the legal analysis or discussion then. Based upon the practice
    prior to the Supreme Court argument and the fact that law
    enforcement had used various techniques, this was a new
    technique that was being evaluated and had been used in a
    variety of ways.
        So my understanding was that after a careful consideration
    of precedent and practice, the Department made a strong
    argument. The Supreme Court has reasoned and has ruled that a
    warrant is required, and certainly that is the law of the land.
        Should I be confirmed as Attorney General, that is
    certainly the practice that I would follow.
        Senator Cruz. The Obama Justice Department 22 times has
    gone before the Supreme Court arguing for broader Government
    authority and 22 times it has been unanimously rejected, 9-0,
    the Court has rejected those claims.
        Another case was a case called Hosanna-Tabor, where the
    Obama Justice Department argued before the Supreme Court that
    the First Amendment has no relevance, says nothing about
    whether a church may select its own ministers or pastors.
        Do you agree with that position that was put forth by this
    Justice Department?
        Ms. Lynch. Well, Senator, I have not read the briefs on
    that, so certainly I am not aware of the full articulation of
    that position. But I believe the Supreme Court has spoken and
    has resolved that issue.
        Certainly, should I be confirmed as Attorney General, I
    would follow that precedent.
        Senator Cruz. You are correct again. The Supreme Court
    resolved that 9-0, rejecting the opinion. And I would note
    Justice Elena Kagan, an appointee of this President, said from
    the bench in that argument to the Department of Justice's
    lawyer, ``I find your position amazing that the Justice
    Department would argue the First Amendment does nothing, says
    nothing about a church's ability to appoint its own ministers
    and pastors.''
        Let me ask you. If you are confirmed as Attorney General,
    will you commit to this Committee to provide greater scrutiny
    to the positions the Justice Department takes before the
    Supreme Court and, in particular, to stop the practice over and
    over again of advocating for broad Government power, which has
    resulted in 22 times the Supreme Court unanimously rejecting
    that argument?
        Ms. Lynch. Senator, should I be so fortunate as to be
    confirmed as Attorney General, I will take every case that
    comes before the Department of Justice seriously. I will
    consult with the career prosecutors there, also within the
    Solicitor General's Office, on the facts of the case, the
    relevant law, and, in conjunction with them, provide my best
    judgment as to the approach to take.
        Senator Cruz. Is it your understanding of the role of the
    Attorney General that the Department of Justice should always
    advocate greater Government power?
        Ms. Lynch. Senator, my view is that the Department of
    Justice advocates to defend statutes as passed by Congress and
    that its greatest function is to represent the American people.
        With respect to specific cases, again, I will always do as
    I have done throughout my career as a lawyer, I will carefully
    examine the facts of the case, the relevant law, precedent, and
    make the best reasoned argument that there is to support the
    position that is being advocated.
        Senator Cruz. Let us shift to another area where this
    Department of Justice has not been, in my view, faithfully
    enforcing the law.
        In May of 2013, the Inspector General of the Treasury
    Department concluded that the IRS had wrongfully targeted
    citizen groups for their political views.
        When that news broke, President Obama publicly said he was
    outraged. He said he was angry and he said the American people
    had a right to be angry.
        Ms. Lynch, do you agree with what President Obama said
    then, that the American people have a right to be angry at the
    IRS targeting citizens for their political views?
        Ms. Lynch. Senator, my view is that political views or bias
    have no place in the way in which not only the Department of
    Justice, but all agencies carry out their duties. And,
    certainly, when people hear of something that raises that
    issue, I can understand their concerns.
        Senator Cruz. In the nearly 2 years that have transpired,
    the individual who led the IRS office in question, Ms. Lois
    Lerner, has testified twice before Congress and has pleaded the
    Fifth, which, as you are well aware, means she raised her hand
    and said, ``If I answer your questions, it means I may
    incriminate myself in criminal conduct.''
        In the nearly 2 years since that time has transpired, not a
    single person has been indicted. In the nearly 2 years since
    that time has transpired, many of the victims of the illegal
    targeting have yet to be interviewed by the FBI or the
    Department of Justice. And in the nearly 2 years that have
    transpired, we have discovered that the Department of Justice
    appointed to lead the investigation a partisan Democrat who has
    been a major donor to President Obama and the Democratic Party.
    Indeed, she has given over $6,000 to President Obama and the
    Democratic Party.
        In your view, is it consistent with fairly and impartially
    enforcing the law to have an investigation into the abuse of
    power by the IRS headed by a major Democratic donor?
        Ms. Lynch. Senator, my understanding of that investigation
    is really from public records. I am not familiar with the
    specifics of it.
        I can certainly tell you that complex investigations often
    do take several months, if not a year or more to resolve, and I
    do not know the status of the witness interviews at this point.
    So I am not able to provide you information on that point that
    you raise.
        With respect to how an investigation is staffed, again, I
    believe that while I am not familiar with the details of this,
    certainly my view is that the Department has career prosecutors
    who are devoted to the Constitution and to the fair and
    effective exercise of their judgment and that the Department
    has made the decision as to how to best staff the case and make
    the case.
        I am just not able to comment on the length of time or
    other issues that you raise. Certainly, should I be confirmed,
    I look forward to learning more about the matter and as I have
    said before, Senator, I appreciate your raising concerns with
    me and I hope that you will continue to do so, should I have
    the opportunity to work with you in the future.
        Senator Cruz. One of the terrific things about the
    Department of Justice is that it has a long and bipartisan
    tradition of remaining above the fray from partisan politics,
    of demonstrating a fidelity to law. So that when serious
    accusations of abuse of power and, in fact, of abusing the IRS
    were raised against Richard Nixon, his Attorney General, Elliot
    Richardson, a Republican, appointed an independent counsel to
    investigate those allegations free of any tainted propriety or
    partisan bias.
        Likewise, when serious allegations of wrongdoing against
    William Clinton were raised, his Attorney General, Janet Reno,
    a Democrat, made the same determination to appoint an
    independent counsel, Robert Fiske, to investigate the matter
    free of partisan, bias, or taint.
        The question I would ask you, if you were confirmed as
    Attorney General, would you commit to this Committee to appoint
    a special prosecutor to investigate the IRS abuse of power who,
    at a very minimum, is not a major Obama donor and who can be
    counted on to actually investigate the facts and follow them
    wherever they may lead?
        Ms. Lynch. Senator, again, I am not familiar with the
    investigation in great detail at this point. My understanding
    is that that matter has been considered and that the matter has
    been resolved to continue with the investigation as currently
    set forth.
        Should I be confirmed as Attorney General, I can commit to
    you that I will take seriously every allegation of abuse of
    power brought to my attention and, in conjunction with career
    prosecutors and this body, where appropriate, make the best
    decision about how to handle that investigation.
        Senator Cruz. Ms. Lynch, you are correct that the matter
    has been considered. Indeed, I sent a letter to Attorney
    General Holder laying out the facts and asking him to follow
    the bipartisan tradition of his predecessors and uphold the
    rule of law, and he responded in writing that he was declining
    to appoint a special prosecutor and the basis of his declining
    to do so as the ``discretion of the Attorney General.''
        So despite the internal DOJ rules that require recusal if
    there is even an appearance of bias, the Attorney General
    refused to appoint a special prosecutor.
        You have stated you are not familiar with this
    investigation. I think that is unfortunate, because when you
    and I visited over a month ago in my office, we talked about
    this investigation. I told you it was a very serious concern of
    mine and I asked before your hearing if you would take the time
    to familiarize yourself with what had occurred. And yet your
    answer today is that you are not aware of what is happening.
        Let me ask a more general question. Would you trust John
    Mitchell to investigate Richard Nixon?
        Ms. Lynch. You are referring to former Attorney General
    Mitchell?
        Senator Cruz. Yes.
        Ms. Lynch. Again, Senator--again, based on that
    hypothetical, I would have to know what the issue was and what
    you were requesting him to do.
        Senator Cruz. Would you trust John Mitchell to investigate
    the allegations of wrongdoing in the break-in at Watergate
    against Richard Nixon? Would you trust John Mitchell, who had
    run Richard Nixon's campaign, to investigate the allegations
    that ultimately led to Richard Nixon resigning the presidency?
        Ms. Lynch. Well, I think that matter has been resolved.
        Senator Cruz. Indeed.
        [Laughter.]
        Ms. Lynch. And certainly with respect to how that matter
    should have been handled and Attorney General Mitchell's
    involvement in it, I believe his role in it has been resolved,
    as well.
        So I am sorry, I am just not able--I do not think I am
    understanding the basis of your question, sir.
        Senator Cruz. Ms. Lynch, there are many of us who are
    alumni of the Department of Justice, who have most respected
    the Department when it demonstrated independence from the
    President, when the Department was willing to stand up to the
    President, when the Attorney General behaved not as if he or
    she were the personal lawyer for the President who appointed
    them, but rather when the Attorneys General in both parties
    have behaved as independent, impartial law enforcement officers
    who owe a fidelity to the Constitution and the laws.
        Prior to becoming Attorney General, Eric Holder had a
    reputation as a U.S. Attorney of upholding the law, and I was
    hopeful when he was appointed that he would carry that
    reputation forward as Attorney General. It has saddened me
    greatly that he has not done so.
        And I will say it is disappointing in this hearing that,
    try as I might, there has been nothing I have been able to ask
    you that has yielded any answer suggesting any limitations
    whatsoever on the authority of the President. That does not
    auger well for this Committee's assessment of your willingness
    to stand up to the President when the Constitution and the laws
    so require.
        Do you agree with that characterization?
        Ms. Lynch. Senator, as I have indicated before, I believe
    that the role of the Attorney General is to provide their most
    objective, well-researched, independent legal advice to the
    President or any agency who may come before them with a request
    for an opinion and where there is a legal basis for the request
    being made, to indicate so; but where there is not, to also
    tell the President or any other executive agency that what they
    are asking for is not within the framework of the law.
        I believe that that is the role of the Attorney General. I
    believe the Attorney General must represent the people of the
    United States and, should I be so fortunate as to be confirmed,
    they will be my client and they will be my first thought.
        Senator Cruz. The ``they'' that you refer to as your
    client, just for clarification, to whom did the ``they'' refer?
    I am sorry.
        Ms. Lynch. ``They'' refers to the American people.
        Senator Cruz. And yet, and I will ask again, can you
    articulate any limitations on the authority of the President
    that, as Attorney General, you would be prepared to stand up
    and tell the President ``no, there is some modicum of power you
    do not have''?
        Ms. Lynch. Senator, I believe that the role of the Attorney
    General does encompass the role of advising the President of
    when actions do not have the appropriate legal framework and
    when they may not be undertaken. That is something that I
    believe is an important part of the functions of the Attorney
    General and, certainly, should I be so fortunate as to be
    confirmed, is something that I would not hesitate to do.
        It is part of the function of the Attorney General, even
    though a Cabinet member, to be independent of the President and
    to provide their best independent legal judgment on any issue
    presented to them.
        Senator Cruz. Well, I hope that you will very much carry
    through on that. It is discouraging that in the course of this
    hearing you have been unwilling to say that the President lacks
    the authority to refuse to enforce tax laws, labor laws,
    environmental laws, immigration laws; that you have declined to
    say that the President cannot order a drone strike on an
    American citizen on U.S. soil; and that you have refused to
    commit to a fair and impartial investigation of the IRS abuse
    of power by a special prosecutor.
        I hope, if you are confirmed, that your conduct in office
    differs from the answers you have given at this hearing.
        My time has now expired. I see Senator Leahy is here. So I
    recognize Senator Leahy.
        Senator Leahy. I see Senator Tillis here, too. I will
    withhold my time.
        Senator Tillis. Thank you, Senator.
        Ms. Lynch, I wanted to go back to--and I do apologize for
    all of this cycling. If you saw all the activity over in the
    Senate chamber, you know what we are going through. It is
    certainly not for a lack of interest in this important topic.
        But I want to go back to the idea of the limited resources
    within the DOJ and some matters. I would like to get some sense
    that, if you should be confirmed, that you would take a look at
    and potentially reconsider some of the priorities of the
    current Attorney General, and I will give you one example.
        In North Carolina, we did change the election law, early
    voting. We went from 17 days to 10 days. In that law, though,
    we made it, by law, you could never offer fewer hours of early
    voting than the highest number that you ever offered in that
    particular county.
        And what that had the effect of, in this last election
    cycle, is historic turnout even among minorities. So we have
    got a lawsuit filed by this Department of Justice, where I am
    named in it, questioning that, but then we have 12 States that
    have no early voting whatsoever, and I am wondering why.
        It seems to be inconsistent when you have one State that is
    preserving the most that it has ever had before, other States
    that have never offered it, and in a time of limited
    prosecutorial resources, that we would actually allocate that
    way.
        Given all that has been said today about the limits of
    resources and the need to allocate them to their best and
    highest use, can you give some sense of your thinking on that?
        Ms. Lynch. Well, Senator, with respect to the current
    litigation that has been filed, I have not been involved it in
    to date. I do know that it is proceeding through the courts and
    I believe there will be further action this summer. There may
    be a trial, I am not sure.
        And so I think we will have to wait and see the judicial
    determination on the impact of the changes in the North
    Carolina State law.
        As I indicated earlier, States obviously have grave
    interest and a great interest in both preserving the right to
    vote and protecting the integrity of the vote, and many of them
    do so in ways that are effective throughout several States.
        The Department of Justice will always have a concern if the
    matter is raised as to whether or not there is a negative
    impact, that is to say, a foreclosing of the right to vote, and
    certainly people can differ on the impact that will be had and
    that will always be the issue in a case to be brought along
    those lines. And certainly nothing--I do not believe anything
    would have been personally aimed at you, sir.
        So with respect to that, when the issue is whether or not a
    change in statutes somehow infringes up on this, our most
    important right, it is something that the Department of Justice
    will always review. But certainly, sir, I look forward to
    having discussions with you about the nature of not this case
    that is under litigation, but other matters in which the
    Department is taking an interest and getting views of you and
    others on this Committee on them.
        Senator Tillis. I think it is very important, because
    should you be confirmed, I think, again, I think we will always
    be in this state of not enough resources for all the things
    that we want to do and it just seems to me that this may be one
    example where, if you looked objectively at the Supreme Court
    case--States that are doing everything that they can to respect
    and promote a citizen's right to vote--that to spend our
    additional time and resources re-prosecuting laws does not seem
    to be the best use of resources in the context of the limited
    resources that we have discussed and several Members on this
    panel have discussed today.
        And I would look forward, should you be confirmed, to
    having a discussion with you about how we can be sure that we
    are putting it to the best purposes for the good of the
    American people that you are trying to serve or that you will
    try to serve.
        Ms. Lynch. Thank you, sir.
        Senator Tillis. Thank you.
        Chairman Grassley. Senator Sessions.
        Senator Sessions. Thank you, Mr. Chairman. It is an honor
    to serve with you and also to serve with our former Chairman,
    and I appreciate the opportunity today.
        I just want to pursue, to me, some legal rights here. It
    seems to me that if there are two people applying for a job as
    a truck driver, one is a lawful immigrant or a citizen and
    another is not, under the President's order, the person
    unlawfully here magically, at this moment, becomes eligible to
    compete against an unemployed American truck driver, and I
    think that is bizarre.
        And the idea that there are rights that might attach to
    someone who is here unlawfully to take jobs from Americans
    under difficult working conditions, as we are today, is
    antithetical to common sense.
        So I think that we--somebody needs to be asking themselves
    who is protecting the American worker, the people who are
    paying the salaries of you, the President and all of us, and,
    as a matter of law, the people who elect us or the people we
    are most directly accountable for, and that is the citizens of
    the United States.
        So I am worried about that. What kind of lawsuit, what kind
    of claim--have you thought about this--that might somebody who
    loses out to a person who claims that they are legal to work
    now because of the President's order and they did not become a
    truck driver and the person that was recently legalized did get
    the job?
        Ms. Lynch. Well, Senator, at the outset, I do want to state
    that it is my understanding that--and there is no right to work
    for an undocumented immigrant in the country. So they would not
    have the right to work.
        Senator Sessions. Well, they would under the President's
    order, would they not?
        Ms. Lynch. For those people who can obtain documentation,
    be it a green card or a visa or other cards, they would have
    the ability to apply for positions.
        With respect to----
        Senator Sessions. Could I ask you about that? The President
    is going to give work permits to 5 million. They would be,
    under his theory, entitled to work. He would have created 5
    million persons to compete against 5 million Americans for a
    limited number of jobs, right?
        Ms. Lynch. Senator, I believe that if the process were to
    be implemented, as what I reviewed, there would be criteria set
    up for people to apply for work permits. They would apply.
    There would have to be a decision as to whether or not they
    would receive them and then I do not know what level of
    employment they would be able to apply for, but assume they
    could apply for positions.
        Senator Sessions. Well, the estimates are, I think, from
    the White House, it would be as many as a total of 5 million
    and they would be given work authorization, photo IDs, Social
    Security numbers, and the ability to participate in Social
    Security and Medicare.
        Are you aware--and to me, I find no lawful basis for this.
    And as the Attorney General and the person who supervises the
    Office of Legal Counsel, whose opinion you have basically
    affirmed here today, then you become, in a sense, the point
    person for this effort.
        And some have suggested, well, it is Homeland Security, but
    Homeland Security asked your Department, Attorney General
    Holder's Department, the Office of Legal Counsel for an opinion
    that would allow them to do so.
        So in effect, had the Department of Justice said no, that
    this is not appropriate and cannot be justified, Homeland
    Security would have been bound by that rejection, would it not?
        Ms. Lynch. Homeland Security would have been bound by that
    opinion, as I believe they were with respect to the portion of
    their proposal to which the Office of Legal Counsel did say no,
    there was not a legal basis for another portion that they
    sought to implement, and I believe they did not implement that.
        With respect to the deferral----
        Senator Sessions. I am only talking about what they did
    agree to. That apparently would be to create this new number of
    workers.
        Well, are there plans to--what if somebody not in the 5
    million is arrested for speeding next week, would they be
    deported?
        Ms. Lynch. Well, Senator, I do not know how the Department
    of Homeland Security would manage the removal. Certainly, a
    criminal record, if, were there to be an arrest and a
    conviction, would place someone in jeopardy of losing their
    deferral status if that is what they initially had.
        Senator Sessions. Well, the point is that you are not going
    to deport any of the 7 million either. That is the policy that
    has become clear in the last few years. And so the
    administration, I would suggest, quite plainly is nullifying
    American immigration law to a degree that is breathtaking, in
    effect.
        For example, you are saying that not only will we not find
    the resources, ask for the resources, nobody has asked for more
    resources to enforce the law if they need them; the President
    is not asking for it because he has no intention, if it were
    given to him, to use that money for that effect.
        So that is the problem we have got. That is why the
    American people are wondering who is going to defend them, who
    is going to defend their children who are out trying to find a
    job. African Americans, who have the highest unemployment rate
    among young people, the data is clear.
        This large flow of immigration at this time of lower
    employment is hurting the poor the most.
        So I would say to you that I am not raising this just to
    make an argument about what kind of immigration policy we need.
    I am raising this as a constitutional and legal question of
    incredible importance.
        As I read to you, professors have said this is perhaps the
    greatest presidential overreach in history. The Congress
    refused to pass what the President wanted to do.
        I am not saying that you made that decision, you did not.
    But your Department gave the legal opinion that justified it
    after he 28 times said he did not have authority to do it.
    Really an amazing event.
        So, Mr. Chairman, I respect the nominee. She has got a good
    family I know was raised right, and I appreciate that.
        Maybe you are just in a difficult position that is not
    necessarily your fault, but I am not satisfied that we at this
    point in history can just slide by and let this go.
        I think we need to confront this issue as a Congress that
    needs to use the powers that it has to defend its legitimate
    rights under the Constitution, and that is why I have
    difficulties with your nomination.
        I respect you and appreciate your appearance today and your
    willingness to answer questions.
        Chairman Grassley. Let me, before I go back to Senator
    Tillis for 3 or 4 minutes, call on Senator Hatch. But let me
    assure everybody that Senator Tillis, Senator Leahy, I have got
    a couple requests of you, and then I think we are done.
        Senator Leahy. Thank you. And another roll call vote has
    started and I will be leaving soon. I am sorry there have been
    so many questions that really have nothing to do with your
    qualifications.
        You were shown a book and told it is terrible what is
    happening, the implication being something this administration
    did. The prosecution of Ted Stevens, of course, the last
    administration did that. This administration exonerated him.
        Be that as it may, we talk about immigration, we have had
    millions of people here but every administration knows you
    cannot just remove 10 or 12 million people. President Reagan
    and both President Bushes, they have all taken that same
    position.
        As far as jobs are concerned, the Chamber of Commerce
    strongly supported the immigration bill that this Committee
    passed two years ago and that the Senate passed by a bipartisan
    majority. Grover Norquist, a very conservative economist, said
    it would add billions of dollars, hundreds of billions of
    dollars to our economy and would increase jobs--not decrease
    them.
        I wish the Speaker of the House had allowed it to come to a
    vote over in the other body; it would have passed. But that is
    not an issue for you. The issue is: Are you qualified to be
    Attorney General? I have seen a lot of Attorneys General in the
    40--now going on to my 41st--years that I have been here. Some
    were very good, in both parties.
        I think of Ed Levy, for example, in Gerald Ford's
    administration--I remember one, that all my Republican
    colleagues voted for him. But when he was here before this
    Committee and asked questions, we gave him 50 or 60 of the
    questions in advance, and he answered 70 to 75 times, ``I do
    not know the answer,'' or, ``I am not sure, I cannot answer
    that,'' even though he had had the questions weeks in advance.
    They voted for him.
        I must say that I cannot think of anybody in all these
    years I have been here that struck me so much as being
    qualified to be Attorney General as yourself. I said earlier
    you are a prosecutor's prosecutor.
        I think of the Attorney General as the Attorney General of
    the United States, there for all of us. I referred to my days
    as a young law student being recruited by then-Attorney General
    Robert Kennedy, but I was just too homesick for Vermont so did
    not stay. I am not going to ask further questions because I am
    satisfied with what you said so far.
        You will have my vote, you have my strong support, and I
    hope in the remaining part of this administration that you will
    be there to enforce the laws of the United States.
        Thank you, Mr. Chairman. I have nothing further to say. I
    will put the rest of my statement in the record.
        Ms. Lynch. Thank you, Senator.
        Chairman Grassley. Senator Tillis.
        Senator Tillis. Thank you, Senator. I apologize, I should
    have taken care of this question. But my final question, Ms.
    Lynch, is really around the philosophy that you may bring to
    the Department of Justice. In December 2014, the Government
    Accountability Office issued a report that was titled, ``The
    Department of Justice Could Strengthen Procedures for
    Disciplining Its Attorneys.''
        There were a couple of examples, going back to even, I
    think, the handling of New Orleans police officers related to
    the Hurricane Katrina, where there was either misconduct or
    they had perjured themselves. Would you agree with me that the
    Department of Justice employees who had engaged in this sort of
    activity, either through prosecutorial misconduct or through
    perjuring themselves in court, are they the kind of personnel
    that you would allow to continue to be employed in the DOJ?
        Ms. Lynch. Certainly, Senator, with respect to personnel
    issues, I take very seriously the integrity of every member of
    my staff, and if confirmed as Attorney General would also take
    very seriously the professionalism of the members of all the
    staff of the Department of Justice, all of whom I have found it
    to have been a privilege and a pleasure to work with and to be
    dedicated career professionals and dedicated to not just
    improving their skills, but the highest standards of
    professional conduct.
        When they cross a line, they are dealt with and that will
    continue to happen, should I be confirmed as Attorney General.
    But I will say that with respect to the staff and the attorneys
    at the Department of Justice, they are some of the most
    effective and professional individuals that I have had the
    pleasure to be affiliated with.
        Senator Tillis. Well, should you be confirmed, since this
    report was just dated last month, I hope that it is something
    that you would take into account as you go into the
    organization and look at the resources that you have inherited
    responsibility for.
        Ms. Lynch. Yes.
        Senator Tillis. Thank you. Thank you very much. And thanks
    to the family, in particular. I know it is a long day and those
    seats are not that comfortable, so thank you all.
        And again, congratulations on the honor that you have from
    the President's nomination. Thank you very much.
        Ms. Lynch. Thank you, Senator.
        Chairman Grassley. I have changed my mind. I am not going
    to ask you two questions, I am going to submit them, along with
    some other questions, for you to answer in writing. I thank you
    very much for being patient today.
        It has been a long day and I suspect some Members of the
    Committee were more impressed with your answers than others.
        We are going to recess for the day and have our second
    panel tomorrow. I hope you will count yourself lucky, let us
    say, compared to Judge Mukasey. When he testified, he was
    forced to come back for a second day of questions.
        Finally, I would like to note that after tomorrow's panel I
    am going to give everyone one week to submit questions for the
    record. That is standard practice in this Committee. Once
    again, thank you for being so patient and putting up with the
    chaos that I formerly referred to.
        Thank you. We are recessed now. Thank you.
        Ms. Lynch. Thank you, Senator.
        [Whereupon, at 5:50 p.m., the Committee was recessed, to
    reconvene at 10:00 a.m., Thursday, January 29, 2015.]
        [Additional material submitted for the record for Day 1
    follows Day 2 of the hearing.]

                          CONFIRMATION HEARING ON THE

                      NOMINATION OF HON. LORETTA E. LYNCH

                             TO BE ATTORNEY GENERAL

                              OF THE UNITED STATES

                                  ----------

                           THURSDAY, JANUARY 29, 2015

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:05 a.m., in
    Room SH-216, Hart Senate Office Building, Hon. Charles E.
    Grassley, Chairman of the Committee, presiding.
        Present: Senators Grassley, Hatch, Sessions, Graham,
    Cornyn, Lee, Cruz, Flake, Vitter, Perdue, Tillis, Leahy,
    Feinstein, Schumer, Durbin, Whitehouse, Klobuchar, Franken,
    Coons, and Blumenthal.

             OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
                 A U.S. SENATOR FROM THE STATE OF IOWA

        Chairman Grassley. For the Members who are present, except
    for the ones that were here already, it will be on seniority,
    and then other people that come in, you will be called on
    according to how our respective staffs keep track of you in the
    order of your appearance.
        Before Chairman Leahy and I give our opening statements, I
    would like to go over some things that I said yesterday.
        First of all, we welcome everybody back to this second day
    of the hearing on Ms. Lynch's nomination to be Attorney
    General. As I said yesterday--and everybody abided by this, and
    I want to thank everybody that was here yesterday for their
    courtesy--I want everyone to be able to watch the hearing
    without obstruction. And if people stand up and block the view
    of those behind them or speak out of turn, it is not fair or
    considerate to the others. So officers would remove those
    individuals, and that is what I want to thank, because we did
    not have any of those incidents yesterday.
        Before we begin the opening statements, I will take care of
    a couple of housekeeping items and explain the process.
        First of all, I want to thank everyone for their patience
    yesterday. It looks like we are going to have more floor votes
    today, so, again, I am asking for your flexibility.
        After opening statements, the plan is to start the first
    round of questions, then recess so Members can vote. We would
    then return after the first series of stacked votes, and I am
    assuming that is going to be around 12:45. But you folks that
    are answering questions for us, you cannot necessarily count on
    that. But then we will keep going through the--there are four
    votes this afternoon. We will not adjourn at that particular
    time. We will do like we did yesterday. We will take turns
    going and voting.
        Senator Leahy and I will now give our opening statements.
    Then we will turn to our witnesses for their opening
    statements. Following their statements, we will begin with the
    first round of questions in which each Senator will have 10
    minutes. After the first round, then we will go to 8 minutes of
    questions. And so then I will give my opening statement.
        Obviously I welcome everybody, the audience as well as
    witnesses, to our second day of hearings on Ms. Lynch's
    nomination to be Attorney General. Yesterday we heard from the
    nominee. I thought she was very engaging, very confident. There
    is no question about her competence from what she has done as
    far as her legal background and her work as U.S. Attorney.
        We appreciated her willingness to stay here through it all
    so we could get done with her in one day and everybody that
    wanted to ask questions verbally could do it. Of course, there
    are going to be a lot of questions in writing for her to answer
    in time.
        She is clearly a skilled and competent lawyer. We asked
    questions yesterday, but I have to say, at least from my
    standpoint--I am not speaking for any other Member--it seemed
    like indirect answers. So I suspect that those will be followed
    up with questions for the record.
        Today we will hear this second panel in front of us right
    now. Many of these will speak to the many ways the Department
    of Justice, under its current leadership, has failed to fulfill
    some of the most basic aspects of its mission. The question for
    me and lot of Members on this side is whether Ms. Lynch is
    committed to leading the Department of Justice in a new
    direction. There are obviously people here that are going to
    speak about the direction of the Department in a different way,
    and we will listen courteously to that as well.
        We will hear from Sharyl Attkisson, as one example of a
    person who was an investigative journalist who has been
    bullied, threatened, and literally blocked from entering the
    Department of Justice, because she had the guts to report on
    issues like Fast and Furious and Benghazi. That is one example
    of something we would like to have a new Attorney General fix.
        We will also hear from Catherine Engelbrecht who was
    targeted by the IRS simply because she is a conservative who
    has had the courage to stand up in defense of freedom and the
    Constitution. The Department has paid lip service to the
    investigation that it is supposedly leading. So I would like to
    know how Ms. Lynch will take seriously the targeting of fellow
    citizens based on their political views.
        Then we have Sheriff David Clarke, from Milwaukee, who will
    testify about how thousands of local law enforcement officers
    across this country feel as though the current leadership does
    not fully appreciate the work that law enforcement does every
    day. So that is important to see how Ms. Lynch might mend the
    broken relationship.
        And then we will hear from Professors Turley and
    Rosenkranz, who will address how the Department of Justice
    under Eric Holder has rubberstamped the President's lawless
    actions--from the unlawful recess appointments to the unlawful
    Executive action specifically on immigration.
        So those people will bring up points that we have made not
    quite as directly as they have or personally as they have in
    hopes that Ms. Lynch will restore the Office of Legal Counsel
    to the impartial role it used to play as a check on the
    President's authority.
        So I look forward to the hearing today, and now it is
    Senator Leahy's turn to give his opening statement.

              OPENING STATEMENT OF HON. PATRICK J. LEAHY,
                A U.S. SENATOR FROM THE STATE OF VERMONT

        Senator Leahy. Well, thank you, Mr. Chairman. This is the
    second day of the Committee's consideration of Loretta Lynch to
    serve as our Nation's Attorney General. We had a long day here
    yesterday. Today we will hear testimony from outside witnesses
    about Ms. Lynch. I would especially be interested in the
    testimony from those who actually know her.
        Yesterday we heard directly from her. Over nearly 8 hours
    of testimony, she testified about the values and independence
    she would bring to the office of the Attorney General. She
    testified how she would make as priorities national security
    and public safety but still preserve the values that we
    Americans, I hope all of us, hold dear.
        I was encouraged when Republican Senators on the Committee
    agreed with me that the key question for voting for a nominee
    to be Attorney General is independence. Some of us remember a
    past Attorney General who told us he was a member of the
    President's staff, and we all had to remind him, no, he is not;
    he is not like the Secretary of Justice. He is the Attorney
    General of the United States and is supposed to be independent.
    Responding to questions on issue after issue, it was clear that
    Ms. Lynch is an independent lawyer of strong character,
    balanced demeanor, and obvious abilities.
        I also want to take a moment to thank Chairman Grassley for
    his handling of yesterday's hearing. It was no easy feat,
    especially when we had 18 votes, I believe it was, yesterday
    afternoon. He kept it going. He made sure that every Senator
    who had a question on either side of the aisle was given the
    time to ask their questions and be heard, and I commend him for
    that. I appreciate the tone of this hearing.
        Chairman Grassley. Thank you.
        Senator Leahy. But I was not surprised at the fairness. We
    have been friends for decades, and I know you well.
        We are going to hear from law enforcement officials who
    actually worked with Ms. Lynch. These are the people who have
    the best knowledge of her. They strongly support her
    nomination. Their presence today will speak to the support Ms.
    Lynch has among both Republicans and Democrats. Similarly, one
    of the finest FBI Directors we have ever had, Louis Freeh, has
    submitted a letter of support on her behalf.
        Now, Barack Obama is not the nominee. That may come as a
    surprise to some who heard some of the questions. Eric Holder
    is not the nominee. Loretta Lynch, the daughter of Lorine and
    the Reverend Lorenzo Lynch, a U.S. Attorney twice unanimously
    confirmed by the United States Senate, one who has been
    applauded for her law enforcement work, that is who we are
    being called upon to consider. I am confident that, after
    hearing her testimony before this Committee and after reviewing
    her record, no one in good faith could question her integrity
    or her ability.
        She said yesterday she looks forward to working with
    Congress to confront the many issues facing Americans today,
    and she has met with over 50 Senators in both parties. So I
    hope we can come together in the Senate and support this
    historic confirmation of an outstanding public servant and to
    move quickly in doing it.
        Thank you.
        Chairman Grassley. Can I ask you, there is no reason to
    make these people stand for an oath, is there? Can't they do it
    sitting down?
        Senator Leahy. Sure.
        Chairman Grassley. Okay. I would like to----
        Senator Leahy. Do whatever you wish.
        Chairman Grassley. Well, I want to know what is legal.
        Senator Leahy. It is okay with me.
        Chairman Grassley. Do you affirm that the testimony-- would
    you raise your hand, please? Do you affirm that the testimony
    you are about to give before the Committee will be the truth,
    the whole truth, and nothing but the truth, so help you God?
        Ms. Attkisson. I do.
        Mr. Barlow. I do.
        Reverend Newsome. I do.
        Ms. Fedarcyk. I do.
        Professor Legomsky. I do.
        Professor Turley. I do.
        Sheriff Clarke. I do.
        Professor Rosenkranz. I do.
        Ms. Engelbrecht. I do.
        Chairman Grassley. Thank you.
        Now I am going to introduce everybody at the table all at
    once instead of separately when one person gets done speaking,
    so be patient with me.
        Sharyl Attkisson is an investigative journalist and author.
    For over 20 years, she worked for CBS News, winning multiple
    Emmy awards for her investigative journalism pieces, including
    her reporting on the 2012 Benghazi report and Fast and Furious.
        Next we have David Barlow, whom we know well. Mr. Barlow
    served as U.S. Attorney for the District of Utah, 2011-2014.
    Prior to his tenure as U.S. Attorney, Mr. Barlow served on this
    Committee as Senator Lee's chief counsel. He is now a partner
    of Sidley Austin, Washington, DC.
        Next is Reverend Newsome. Reverend Clarence Newsome is
    president of the National Underground Railroad Freedom Center
    in Cincinnati, Ohio.
        Next is Janice Fedarcyk. Ms. Fedarcyk served as Assistant
    Director in Charge of FBI's New York Division, 2010-2012. Ms.
    Fedarcyk currently runs Fedarcyk Consulting, Washington, DC. I
    know I pronounced it wrong.
        Next we have Stephen Legomsky, John S. Lehmann University
    Professor at Washington University School of Law.
        Next we have Jonathan Turley, J.B. and Maurice C. Shapiro
    Professor of Public Interest Law, George Washington University
    Law School.
        David Clarke is sheriff, Milwaukee County, and has served
    for over 36 years as a law enforcement professional.
        Next, Nicholas Rosenkranz is a professor of community law
    and Federal jurisdiction, Georgetown University Law Center, and
    a senior fellow at the Cato Institute.
        Finally, we have Catherine Engelbrecht. Ms. Engelbrecht is
    the founder and chairwoman of True The Vote, an election
    integrity organization; the founder of King Street Patriots, a
    citizen-led liberty group; and the co-owner of Engelbrecht
    Manufacturing, a small business she owns with her husband in
    her home State of Texas.
        Now we will start with Ms. Attkisson.

       STATEMENT OF SHARYL ATTKISSON, INVESTIGATIVE JOURNALIST,
                           LEESBURG, VIRGINIA

        Ms. Attkisson. Thank you.
        Chairman Grassley. Oh, if I did not, maybe I should say--I
    think you have all been informed, but we would like to have 5
    minutes.
        Ms. Attkisson. Yes.
        Chairman Grassley. Okay. Go ahead.
        Ms. Attkisson. I have been a reporter for 30 years at CBS
    News, PBS, CNN, and in local news. My producers and I have
    probed countless political, corporate, charitable, and
    financial stories ranging from Iraq contract waste and fraud
    under Bush to green energy waste under Obama to consumer
    stories relating to the drug industry.
        Some of these reports have been recognized for excellence
    in journalism--most recently, investigative Emmy nominations
    and awards for reporting on TARP, Benghazi, green energy
    spending, Fast and Furious, and a group of stories including an
    undercover investigation into Republican fundraising.
        The job of getting at the truth has never been more
    difficult.
        Facets of Federal Government have isolated themselves from
    the public they serve. They covet and withhold public
    information that we as citizens own. They bully and threaten
    access of journalists who do their jobs, news organizations
    that publish stories they do not like, and whistleblowers who
    dare to tell the truth.
        When I reported on factual contradictions in the
    administration's accounts regarding Fast and Furious, pushback
    included a frenzied campaign with White House officials trying
    to chill the reporting by calling and emailing my superiors and
    colleagues, using surrogate bloggers to advance false claims.
    One White House official got so mad, he angrily cussed me out.
        The Justice Department used its authority over building
    security to handpick reporters allowed to attend a Fast and
    Furious briefing, refusing to clear me into the public Justice
    Department building.
        Advocates had to file a lawsuit to obtain public
    information about Fast and Furious improperly withheld under
    executive privilege. Documents recently released show emails in
    which taxpayer-paid White House and Justice Department press
    officials complained that I was ``out of control'' and vowed to
    call my bosses to try to stop my reporting.
        Let me emphasize that my reporting was factually
    indisputable. Government officials were not angry because I was
    doing my job poorly. They were panicked because I was doing my
    job well.
        Many journalists have provided their own accounts.
        The White House made good on its threat to punish C-SPAN
    after C-SPAN dared to defy a White House demand to delay airing
    a potentially embarrassing interview with the President.
        Fifty news organizations, including CBS and The Washington
    Post, wrote the White House objecting to unprecedented
    restrictions on the press that raise constitutional concerns.
        A New York Times photographer likened the White House
    practices to the Soviet news agency TASS.
        Former Washington Post Executive Editor Len Downie called
    the Obama War on Leaks ``by far the most aggressive'' he has
    seen since Nixon.
        David Sanger of The New York Times called this ``the most
    closed, control freak administration'' he has ever covered.
        New York Times public editor Margaret Sullivan said it is
    ``the administration of unprecedented secrecy and unprecedented
    attacks on a free press.''
        Months before we knew that the Justice Department had
    secretly seized AP phone records and surveilled Fox News' James
    Rosen, before Director of National Intelligence James Clapper
    incorrectly testified under oath that Americans were not
    subject to mass data collection, I was tipped off that the
    Government was likely secretly monitoring me due to my
    reporting.
        Three forensics exams confirmed the intrusive, long-term
    remote surveillance. That included keystroke monitoring,
    password capture, use of Skype to listen into audio and
    exfiltrate files, and more.
        Getting to the bottom of it has not been easy. It is
    unclear what, if anything, the FBI has done to investigate.
        The Justice Department has refused to answer simple,
    direct, written congressional questions about its knowledge of
    the case. It has stonewalled my Freedom of Information
    requests--first saying it had no responsive documents, then
    admitting to 2,500 of them but never providing any of them.
        In 2013, Reporters Without Borders downgraded America's
    standing in the global free press rankings, rating the Obama
    administration as worse than Bush's.
        It matters not that, when caught, the Government promises
    to dial back or that James Rosen gets an apology.
        The message has already been received: If you cross this
    administration with perfectly accurate reporting they do not
    like, you will be attacked and punished. You and your sources
    may be subjected to the kind of surveillance devised for
    enemies of the state.
        For much of history, the United States has held itself out
    as a model of freedom, democracy, and open, accountable
    Government. Freedoms of expression and association are, of
    course, protected by the Constitution.
        Today those freedoms are under assault due to Government
    policies of secrecy, leak prevention, and officials' contact
    with the media, combined with large-scale surveillance
    programs.
        The nominee, if confirmed, should chart a new path and
    reject the damaging policies and practices that have been used
    by others in the past.
        If we are not brave enough to confront these concerns, it
    could do serious, long-term damage to a supposedly free press.
        Thank you.
        [The prepared statement of Ms. Attkisson appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Ms. Attkisson.
        If I am accurate, Professor Rosenkranz, you have recently
    had a back operation and if you need to stand, we would not
    object. So whatever you have to do.
        Now, Mr. Barlow.
        Senator Leahy. And I would echo that sitting here--
    recovering from two fractured vertebrae, I know how important
    it is to be able to stand.
        Chairman Grassley. Yes, okay. Mr. Barlow.

                 STATEMENT OF DAVID B. BARLOW, PARTNER,
                   SIDLEY AUSTIN LLP, WASHINGTON, DC

        Mr. Barlow. Thank you, Chairman Grassley, Ranking Member
    Leahy, Members of the Judiciary Committee. It is my privilege
    to appear before you here today in support of the nomination of
    my former colleague, Loretta Lynch, to serve as Attorney
    General of the United States.
        I would be remiss if I did not first thank this Committee
    for the strong support I received in 2011 when my own
    nomination to serve as United States Attorney was before you.
    It was a tremendous honor to serve as U.S. Attorney in the
    Department of Justice. I always will be grateful for the trust
    that you reposed in me when you supported my nomination.
        And it is now my privilege to recommend Ms. Lynch to you.
    You already have heard and read much about her storied 30-year
    legal career. So instead of elaborating on her many
    credentials, I want to take just a few minutes to share a
    couple of personal observations about my former colleague.
        I first met Loretta at a conference of United States
    Attorneys several months after I was sworn in. And what I
    remember most vividly about her was the way she handled a
    portion of the program where U.S. Attorneys were asking
    questions of the Executive Office of United States Attorneys.
    Loretta moderated the session. Some of the discussion regarding
    budgets, resource allocation, hiring authority, and other
    issues understandably became intense as my colleagues and I
    argued our various views and articulated the many needs that
    our districts had during lean budgetary times.
        But Loretta was calm and unruffled. She asked hard
    questions, but she did so in an unfailingly dignified and
    respectful way. Where strong feelings created the risk of
    bringing more heat than light to the conversation, Loretta
    brought only light. She was clearly tough, but also fair and
    gracious.
        That impression of Loretta was confirmed and deepened as I
    served with her on the Attorney General's Advisory Committee,
    the AGAC. As you know, the AGAC is a committee of roughly a
    dozen United States Attorneys who serve as a voice of their
    colleagues to the Department of Justice and provide counsel to
    Department leadership on various management, policy, and
    operational issues. Loretta was the chair of the AGAC during
    the time that I served as a member of it.
        You already know that United States Attorneys are not a
    timid group. All are accustomed to being in charge. All are
    used to expressing their views. And all are, at least in part,
    the products of very different backgrounds, experiences, and
    places. If you put twelve or so United States Attorneys
    together in a room, as the AGAC does, you will get a wide
    variety of ideas and perspectives, often very strongly held.
        It takes someone very special to lead that kind of group.
    For the AGAC to work well, to work as it is intended, that
    someone needs to be smart, insightful, organized, articulate,
    inclusive, and experienced. Loretta was and is all those things
    and more. She was always well prepared. She made sure that all
    points of view were fairly and fully considered. She listened
    far more than she talked. She facilitated consensus wherever
    possible and made space for dissent when consensus could not be
    reached. And by her example and her conduct, she elevated the
    discourse and refined the exchange of ideas in our committee.
    Through these experiences, my initial impressions of Loretta
    Lynch were fully confirmed: She is tough, fair, gracious,
    smart, and independent.
        In conclusion, during my time as United States Attorney, I
    had the privilege of serving with a truly outstanding group of
    U.S. Attorneys throughout the Nation. I learned much from them.
    I was inspired by their service and their commitment. But of
    all of these dedicated and talented public servants, the
    Honorable Loretta Lynch truly stood out. If confirmed by the
    Senate, I am sure she will make an excellent Attorney General
    of the United States.
        Thank you.
        [The prepared statement of Mr. Barlow appears as a
    submission for the record.]
        Chairman Grassley. I will turn to Reverend Newsome.

      STATEMENT OF REV. DR. CLARENCE G. NEWSOME, CINCINNATI, OHIO

        Reverend Newsome. Mr. Chairman and Mr. Ranking Member and
    Members of the Judiciary Committee, it is my pleasure and honor
    to appear before you to support the nomination of Attorney
    Loretta Elizabeth Lynch for the position of United States
    Attorney General.
        I have known Loretta virtually all of her life. Our family
    relationships cover a period of 40 or more years. Her family
    has been associated with several branches of my family by way
    of the Baptist Church connection and the network of educators
    in the great State of North Carolina. Her grandfather was a
    highly regarded and respected clergyman; the same can be said
    of her father and her brother, both of whom have been
    distinguished leaders at the State and the national level for
    some time. For many years her father was a key leader in the
    life of the General Baptist State Convention of North Carolina
    and the National Baptist Convention, USA. Her brother continues
    in that tradition of leadership even now.
        Her father and I have been ministerial colleagues since the
    1970s. It was my privilege to teach her brother during the
    years that I served on the Duke Divinity School faculty. I have
    been able to maintain a warm personal association with her
    mother, an esteemed church leader and educator in her own
    right, for decades. Through her father, brother, and mother and
    mutual family friends, I have been able to stay abreast of
    Loretta's impressive and remarkable rise to a position of
    preeminent leadership in the life of our Nation.
        Loretta is the product of one of the most outstanding
    families in the State of North Carolina. To the degree that
    virtue counts in our society, I am bold to say that she is the
    product of one of the most outstanding families in the United
    States of America. The members of the Lynch family are known
    for their exemplary character, integrity, excellent
    achievement, civic-mindedness, commitment to the common good,
    and deep and compelling sensitivity to the well-being of all
    people.
        Over the years it has been my privilege to witness the
    development and emergence of the best of who we are as a Nation
    in the person of Loretta. In the religious, educational, and
    social circles in which our families have moved, she has had a
    reputation for being stellar in everything she has done. As a
    teenager, she drew the admiration of adults and, more
    significantly, her peers as well. She stood out among them
    without alienating herself from them. She stood out in many,
    many ways. She was as approachable then as she is now. Even
    then she enjoyed a reputation for being levelheaded, balanced
    in her thinking, and wise in her judgments. She evidenced a
    level of maturity that was out of the ordinary but only in
    those ways that garner the respect of young and old alike.
        As a teenager, Loretta was the daughter every parent would
    love to have. Early in life, the quality of her character was
    evident, and this is why the cities of Greensboro, where she
    was born, and Durham, where she graduated from high school with
    valedictory honors, claim her as a daughter who has made them
    proud. All the more proud we North Carolinians will be if she
    is appointed the first U.S. Attorney General in the State's
    history.
        As a student during her pre-college years, she performed at
    such a high level that it only seemed natural that she would
    attend and graduate from Harvard University and Harvard Law
    School. In fact, her career trajectory is consistent with the
    extraordinary intellectual ability and prowess, discipline, and
    even courage she demonstrated during her youth. Early on she
    dared to dream to become the best of the best, and she has
    accomplished this in the field of law and jurisprudence. As her
    professional record shows, she has become the best of the best
    without qualification.
        In the way that her career has taken shape, I can discern
    several attributes that are worth noting at a time such as
    this.
        First of all, she is an informed, independent thinker who
    listens well and studies hard.
        Second, she has the capacity to maintain the strength of
    her own convictions.
        Third, she is morally grounded and highly principled.
        Fourth, she acts decisively and judiciously.
        And, fifth, she is a public servant of the highest order,
    the type that works well with others to bring about good
    results with positive outcomes.
        Thank you very, very much.
        [The prepared statement of Rev. Dr. Newsome appears as a
    submission for the record.]
        Chairman Grassley. Thank you very much, Reverend.
        Ms. Fedarcyk.

       STATEMENT OF JANICE K. FEDARCYK, FEDARCYK CONSULTING LLC,
                         CROWNSVILLE, MARYLAND

        Ms. Fedarcyk. Chairman Grassley, Ranking Member Leahy, and
    Members of the Committee, it is my pleasure to appear before
    you this morning to speak about my association with the
    Attorney General nominee, Loretta Lynch. I wholeheartedly
    endorse her confirmation from the vantage point of someone who
    worked closely alongside Loretta in her role as United States
    Attorney of the Eastern District of New York during my 2 years
    as the Assistant Director in Charge of the FBI's New York
    office. I served in that capacity for 2 years, retiring in 2012
    after 25 years of service in the FBI.
        As the Assistant Director in Charge, I was responsible for
    the largest field office in the FBI, and inherent to that are
    the most complex and sensitive investigations in all of this
    Nation's law enforcement. New York was and will remain the
    target for the terrorism activities of individuals and groups
    that espouse their violent agenda. From the World Trade Center
    1 in 1993 to the terrorist attacks of 9/11 and beyond, we
    continue to see this terrorist agenda manifested against New
    York. As a result, the FBI's resources and the considerable
    talents of the United States Attorneys in both the Eastern and
    Southern Districts of New York are almost in a daily
    undertaking to protect this Nation's security.
        I think it is also important that the Committee appreciate
    the magnitude of the criminal violations the New York office
    worked. These violations ranged from the complicated and
    pervasive financial crimes, the insidious and debilitating
    effects of organized crime and public corruption, and the
    violence associated with national gangs and other violent
    offenders.
        Given this challenging environment, it was a necessity to
    establish a substantial and seamless partnership with Loretta
    and her office. Over the course of the next 2 years, we formed
    an effective partnership to address not only the national
    security and criminal threats but also to engage in outreach
    and liaison to make a positive impact in the community.
        The basis for my unquestioned support for Loretta's
    nomination is founded upon the numerous successes our offices
    achieved, the close professional and personal relationship that
    provided me extraordinary insight into Loretta both as a United
    States Attorney and as a person. I was privileged to observe
    her commitment to mission, her personal involvement in issues
    that invariably arose in our work, as well as those within the
    broader law enforcement community. In supporting Loretta's
    nomination as the next Attorney General of the United States, I
    would like to comment on three areas that form the foundation
    of my recommendation:sound judgment, legal acumen, and
    independence.
        In all of my interactions with Loretta, her approach to
    addressing and resolving issues invariably involved gathering
    information to understand the issue, obtaining inputs from
    affected stakeholders, and making a decision based upon the
    facts and the law. As you heard Ms. Lynch yesterday commit to a
    collaborative and deliberative approach, I can assure you based
    on my experience that she will follow through.
        While not an attorney, I do recognize that Loretta was
    nominated and confirmed twice as a United States Attorney in
    the Eastern District of New York; served on the Attorney
    General's Advisory Committee and was named as chair of the
    committee in 2013; and received favorable reviews by the
    Executive Office for United States Attorneys which called her
    ``exceptionally well qualified.''
        Lastly, I have never known Loretta to make a decision based
    upon politics or outside influences. She consistently
    demonstrated fairness, respect for others, and a deep sense of
    duty. Under her leadership, her office embraced those qualities
    in their work.
        As I previously stated, our offices pursued a multitude of
    national security and criminal investigations, including the
    arrest of approximately 138 Mafia figures that represented the
    largest single-day operation against the Mafia in history. But
    other notable accomplishments spanned the spectrum of the
    national priorities and are examples of her successes in the
    Eastern District, including international terrorism, public
    corruption, gang violations, violent offenders, etc.
        Ms. Lynch's recognition that task forces brought the best
    of interagency investigative resources to bear on entrenched
    crime problems was integral to broader and deeper successes
    than would have been the case for any one agency or department
    to achieve alone. These task forces included the Nation's
    largest Joint Terrorism Task Force, the Violent Gang Task
    Forces, the Long Island Gang Task Force, the Health Care Task
    Force, and the Financial Fraud Enforcement Task Force, to name
    just a few.
        In closing, Abraham Lincoln said, ``Character is like a
    tree and reputation like a shadow. The shadow is what we think
    of it; the tree is the real thing.'' Ms. Lynch is the real
    thing.
        Thank you.
        [The prepared statement of Ms. Fedarcyk appears as a
    submission for the record.]
        Chairman Grassley. Thank you very much.
        Now, Professor Legomsky.

     STATEMENT OF STEPHEN H. LEGOMSKY, JOHN S. LEHMANN UNIVERSITY
     PROFESSOR, SCHOOL OF LAW AT WASHINGTON UNIVERSITY, ST. LOUIS,
                                MISSOURI

        Professor Legomsky. Thank you, Mr. Chairman and honorable
    Members of the Committee. Thank you for the privilege of
    testifying this morning. I am here to focus on the concerns
    that some have expressed about the President's recent Executive
    actions on immigration. I do sincerely appreciate that
    reasonable minds can and do differ about the policy decision as
    to precisely what the enforcement priorities are to be.
        But I want to respectfully share my opinion that the
    President's actions are clearly within his legal authority.
    That is not just my opinion: 135 immigration law professors and
    scholars signed a letter just this past November expressing
    that same view in strong terms. This is the mainstream view
    from those of us who have spent our careers teaching and
    researching immigration law.
        The President has not just one but multiple sources of
    legal authority for these actions, and I have submitted a
    detailed written statement that documents each of these. The
    written statement also identifies every legal objection I could
    think of that the President's critics have offered and it
    explains why, in my view, none of them can withstand scrutiny.
    So, with limited time, I will hit just a few key points and
    refer you please to the written statement for all the other
    points.
        First, I think all now agree that in a world of limited
    resources prosecutorial discretion is unavoidable. You cannot
    go after everyone so you have to prioritize.
        In the case of immigration, Congress has made this
    explicit. It charged the Secretary of Homeland Security with
    ``establishing national immigration enforcement policies and
    priorities''--priorities. That alone would seem to suffice.
    But, in addition, year after year Congress knowingly gives the
    administration only enough money to pursue less than 4 percent
    of the undocumented population. That to me is the clearest
    evidence possible that Congress intends for DHS to decide how
    those limited resources can be most effectively deployed.
        In fact, Congress has specifically required DHS to
    prioritize three things: national security, border security,
    and the removal of criminal offenders. And those are exactly
    the three priorities that these recent Executive action memos
    incorporate.
        On top of all that, we have the 2012 Supreme Court decision
    in Arizona v. U.S. where the Court struck down most of
    Arizona's immigration enforcement statute precisely because it
    would interfere with the Federal Government's immigration
    enforcement discretion, which the Court went on at some length
    to emphasize the breadth of.
        Now some critics claim that if the recent Executive actions
    are legal, then that would mean there are no limits at all and
    therefore some future President could suspend enforcement of
    some other law.
        But DACA and DAPA do not even approach the sort of
    hypothetical non-enforcement that that argument conjures up. If
    the President were to refuse to substantially spend the
    resources Congress has appropriated, then I believe we would
    have a serious legal issue. But that is not even close to the
    present reality, because even after DACA and DAPA are fully
    operational, the President still will have only enough
    resources to go after a small percentage. And so as long as he
    continues to use those enforcement resources that Congress has
    given him, it is hard for me to see how that could be called an
    abdication.
        As for deferred action specifically, the program has been
    around for more than 50 years. Not only has Congress never
    acted to prohibit it or even restrict it, Congress has
    affirmatively recognized it by name in several provisions. The
    formal agency regulations also recognize it by name. A long
    line of courts, including the Supreme Court, have recognized it
    by name. Not one of these legal authorities, not one, says or
    even intimates that it is legal if there is a small number of
    people but otherwise not.
        The same is true for work permits. The statute authorizes
    DHS to grant permission to work, and the regulations
    specifically make deferred action recipients eligible for them.
        Now, some have said deferred action is okay on an
    individual basis, but not for a whole class. First of all,
    nothing in the law actually says that. And in fact, almost
    every modern President has granted reprieves from removal and
    work permits to large, specifically defined classes of
    undocumented immigrants.
        At any rate, the Secretary's November memo is filled with
    clear, careful, repeated instructions to officers that, even if
    the general criteria in the memo are all satisfied, they still
    have to make individualized, case-by-case discretionary
    judgments. And in fact, the very form that USCIS officers are
    required to use when they deny deferred action--and they have
    denied it more than 32,000 times on the merits--contains a list
    of the reasons, and one of those specific reasons listed is
    discretion.
        I think this is the way an agency should work. It
    articulates general criteria and then expects its officers to
    use some judgment in applying those criteria to individual
    cases.
        Thank you very much for your time.
        [The prepared statement of Professor Legomsky appears as a
    submission for the record.]
        Chairman Grassley. Thank you. Professor Turley.

       STATEMENT OF JONATHAN TURLEY, J.B. AND MAURICE C. SHAPIRO
    PROFESSOR OF PUBLIC INTEREST LAW, GEORGE WASHINGTON UNIVERSITY
                       LAW SCHOOL, WASHINGTON, DC

        Professor Turley. Thank you, Chairman Grassley, Ranking
    Member Leahy, Members of the Senate Judiciary Committee, I
    thank you for the honor of appearing before you at this
    historic moment in looking for the confirmation of the 83rd
    Attorney General of the United States.
        I want to begin by saying I have great respect for Ms.
    Lynch. As I have said before, her extraordinary career as a
    prosecutor pays great credit to her and to her nomination.
    Indeed, if confirmed, and I hope she is, I believe that she
    could be a truly great Attorney General.
        If great leaders are shaped at great moments in history,
    this could be such a moment for Loretta Lynch.
        The Justice Department is at the epicenter of a
    constitutional crisis. A crisis that consumed her predecessor
    and his Department.
        My focus, therefore, of my written testimony and my oral
    testimony today is less on Ms. Lynch than on the Department she
    wishes to lead. As my academic writings indicate, I have been
    concerned about the erosion of lines of separation of powers
    for many years and particularly the erosion of legislative
    authority of this body and of the House of Representatives.
    That concern has grown to alarm in the last few years under
    President Obama, someone that I voted for, someone with whom I
    happen to agree on many issues, including some of the issues
    involved in these controversies.
        We are watching a fundamental change in our constitutional
    system. It is changing in the very way that the Framers warned
    us to avoid. The Justice Department has played a central and
    troubling role in those changes. In my view, Attorney General
    Holder has moved his Department outside of the navigational
    beacons of the First and Second Articles of our Constitution.
    In that sense, Ms. Lynch could be inheriting a Department that
    is floundering.
        The question is whether she can or will tack back to calmer
    constitutional waters.
        As discussed in my written testimony, the Framers focused
    on one defining single danger in our system and that is the
    aggrandizement of power in any one branch or in anyone's hands.
    They sought to deny every branch the power to govern alone.
        Our system requires consent and compromise. It goes without
    saying that when we are politically divided as a Nation as we
    are today, less things get done. But that division is no
    license to go it alone as the President has suggested. You have
    only two choices in the Madisonian system. You can either seek
    to convince your adversaries, or you can seek to replace them.
    You do not get to go it alone.
        And there is nothing noble about circumventing the United
    States Congress, because it means you are circumventing the
    United States Constitution. And any person who claims that they
    can get the job done alone is giving the very siren's call that
    the Framers warned us against, and one that I hope this body
    resists.
        In my testimony I have laid out examples of how this change
    is occurring. I have divided it between obstruction of
    legislative authority and the usurpation of legislative
    authority. The obstruction of legislative authority includes
    the blocking of the contempt citation, the non-defense of
    Federal statutes. Usurpation includes many of the legislative
    changes that we will be talking about today and has been
    discussed by others.
        The American people, in my view, have been poorly served in
    recent years by the Justice Department. The balance that has
    been sought in recent years has been lost precisely as the
    Framers have feared, the rise of a dominant Executive within
    our system, a type of ``uber-presidency.''
        It is certainly true that the Framers expected much from
    us, but no more than they demanded from themselves. They
    expected this institution to fight jealously over its own
    authority. They gave you that authority not to protect your
    power; the separation of power is designed to protect liberty
    from the concentration of power. It does not matter what party
    we are from and it does not matter if we agree with what the
    President has done. In my view he has worthy ends, but he has
    chosen unworthy means under the Constitution, and the Justice
    Department has been a catalyst for that.
        In exercising the power of confirmation, this body has an
    undeniable interest in confirming that a nominee will address
    these relational breaches, these unconstitutional actions.
        I can only imagine the pride that Ms. Lynch's family will
    have when she raises her hand to take the oath of office. When
    that moment comes, however, there should be a clear
    understanding as to what she is swearing true faith and
    allegiance to as the 83rd Attorney General of the United States
    of America.
        The Department that she leads should be the embodiment, not
    the enemy, of the separation of powers. It is a covenant of
    faith that we have with each other. And I sincerely hope that
    she regains that faith as she takes over, as she may, the
    Department of Justice.
        [The prepared statement of Professor Turley appears as a
    submission for the record.]

              STATEMENT OF DAVID A. CLARKE, JR., SHERIFF,
                 MILWAUKEE COUNTY, MILWAUKEE, WISCONSIN

        Sheriff Clarke. Good morning, Chairman Grassley, Members of
    the Senate Judiciary Committee, and Ranking Member Leahy. I am
    honored to address you this morning about a frequent news
    topic, American policing at the local level.
        These hearings are focusing on the confirmation of possibly
    the next Attorney General of the United States, Ms. Loretta
    Lynch, and I wish her well.
        I want to spend some time critiquing outgoing Attorney
    General Eric Holder's tenure at the United States Department of
    Justice and use it as the framework as a way forward.
        The mission statement of the U.S. Department of Justice
    says, ``To enforce the law and defend the interests of the
    United States according to the law''--let me repeat that--
    ``according to the law; to ensure public safety against threats
    foreign and domestic; to provide federal leadership in
    preventing and controlling crime; to seek just punishment for
    those guilty of unlawful behavior; and to ensure impartial
    administration of justice for all Americans.''
        In my 36 years in law enforcement I have viewed the United
    States Department of Justice as an ally in pursuit of justice.
    Local law enforcement has always been on the front lines in
    preventing and controlling crime and seeking just punishment
    for those guilty of unlawful behavior, as the mission statement
    of the DOJ implies.
        What I have witnessed from the Department of Justice under
    the leadership of Attorney General Eric Holder has been almost
    hostility toward local law enforcement. I have seen this in
    both public statements made about the profession and some of
    the policy decisions that treat police officers as adversaries
    instead of allies in the pursuit of justice.
        Partnering with local law enforcement agencies and ensuring
    the fair treatment of all Americans in the pursuit of justice
    are not mutually exclusive. What we all witnessed in Ferguson,
    Missouri, back in August, was a tragedy, an unfortunate
    incident for Officer Darren Wilson and citizen Mike Brown. What
    followed, however, compounded that tragic situation as people
    across the United States converged on Ferguson to exploit the
    situation for self-serving purposes.
        Suffice it to say that was not America's finest hour. In
    the days and weeks that followed in Ferguson, Missouri, the
    police-related use of force was forefront in the national news.
    There was call for--at that moment when the U.S. DOJ inserted
    itself early into the process--an appeal to reasonableness,
    responsible rhetoric, and cautioning against a rush to
    judgment. Instead, some very powerful people made statements
    that only heightened rising tensions.
        Unfortunately, race is, has been, and will always be an
    explosive issue in America. The incendiary rhetoric used by
    Eric Holder created a pathway for a false narrative that then
    became the rallying cry for cop haters across America. It
    sparked unjustified hatred toward America's law enforcement
    agencies and its officers.
        Without a shred of evidence, a broad brush has been used to
    unfairly malign the reputation of the profession of policing in
    the United States. The accusation has been made that our
    community's finest systematically engage in the practice of
    targeting young Black men because of the color of their skin.
    That claim is patently false and I reject out of hand the mere
    suggestion of it. If I am wrong, then someone needs to show me
    the evidence.
        Officers at the local level put on their uniforms and go
    out every day to make their communities better and safer places
    to live. Without them, our communities would collapse into
    utter chaos. The world that our officers operate in is complex,
    dynamic, uncertain, and one where unfortunately things can and
    do go wrong. When that happens, the American law enforcement
    officer needs to know that after a thorough and transparent
    investigation the facts and evidence of a particular case will
    be applied to the rule-of-law standard for a decision about
    their actions.
        After putting their lives on the line, they do not deserve
    a standard of false narrative, preconceptions, misconceptions,
    emotional rhetoric, or racial demagoguery. Author and scholar
    Thomas Sowell said in a thought-provoking piece on the rule of
    law, ``If people who are told that they are under arrest, and
    who refuse to come with the police, cannot be forcibly taken
    into custody, then we do not have the rule of law, when the law
    itself is downgraded to suggestions that no one has the power
    to enforce.'' So where do we go from here? How do we get beyond
    this damaged or frayed relationship between local policing and
    the U.S. DOJ?
        My suggestion is for the next U.S. Attorney General to
    articulate clearly a renewed commitment to rebuilding trust
    with local law enforcement. That involves open lines of
    communication with an emphasis on listening to the suggestion
    of law enforcement executives, and for the Nation's sake,
    please stop undermining the character and integrity of the
    American law enforcement officer.
        Next, resist at the Federal level to interfere with local
    police training standards. Are cops perfect? No. In fact, far
    from it. But they are our community's finest. Every community
    is unique in what will work and what will not work. We already
    have State standards for training.
        Finally, I want to speak on two emerging issues on the
    radar screen in criminal justice: sentencing and prison reform.
    Any discussion about reform in these two areas that does not
    include a counterview about the consequences of this short-term
    technical fix and its impact on crime victims will have a
    catastrophic consequence in already stressed Black and Hispanic
    communities.
        The recidivist nature of criminals will cause more
    minorities to be victimized by violence similar to what
    happened this past summer in Milwaukee to Sierra Guyton, a 10-
    year-old girl shot in the head and killed while on a school
    playground. The shooters were career criminals.
        The Black community does not have the support structures in
    place for an influx of career criminals sent back into the
    community or to deal with the habitual criminals who currently
    rain terror on neighbors. Adding more crime and violence to
    that mix will only bring more misery to the overwhelming number
    of decent Black, law-abiding citizens just trying to get
    through life against already great odds. Reform that simply
    lowers the bar is nothing more than normalizing criminal
    behavior.
        Thank you very much.
        [The prepared statement of Sheriff Clarke appears as a
    submission for the record.]
        Chairman Grassley. Thank you, Sheriff.

       STATEMENT OF NICHOLAS QUINN ROSENKRANZ, PROFESSOR OF LAW,
                 GEORGETOWN UNIVERSITY LAW CENTER, AND
              SENIOR FELLOW IN CONSTITUTIONAL STUDIES, THE
                     CATO INSTITUTE, WASHINGTON, DC

        Professor Rosenkranz. Thank you, Mr. Chairman, Ranking
    Member Leahy, Members of the Committee. I thank you for the
    opportunity to testify at this momentous hearing. The Committee
    has rightly decided to explore not just the qualifications of
    the nominee, but also the proper role of the office.
        I myself take no position on the ultimate question of
    whether the nominee should be confirmed. Rather, I offer some
    observations about the proper role of the Attorney General, and
    some comments, alas, on the ways in which the current
    administration has fallen short of its constitutional
    obligations.
        You have explored at length the Attorney General's weighty
    responsibility to supervise the various components of the
    Department of Justice. But, as you know, the most important
    responsibility of the Attorney General is not the supervision
    of the tens of thousands who work beneath her; it is the solemn
    counsel that she gives to the one who works above.
        Her most important job is to give sound legal advice to the
    President of the United States. And perhaps the most important
    dimension of this function is to advise the President on the
    scope of his Executive powers and duties.
        The Attorney General should rightly explore all legal
    options for the President to achieve his goals. But at the end
    of the day, if no legal options are available, the Attorney
    General must be prepared to say, ``No, Mr. President, you have
    no constitutional power to do that.''
        The fortitude--the rectitude--required to say ``no'' to the
    President is perhaps the single most important job criterion
    for Attorney General of the United States. I am afraid that it
    is particularly important now, in an administration that is
    inclined to press the outer bounds of Executive power and to
    skirt the obligation to take care that the laws be faithfully
    executed.
        I hope that the Committee will thoroughly explore the
    nominee's conception of faithful execution of the laws, and her
    resolve to advise the President when he risks running afoul of
    this constitutional obligation.
        The Constitution provides that, ``The President . . . shall
    take care that the Laws be faithfully executed.''
        First, notice that this is not a grant of power, it is the
    imposition of a duty: ``the President . . . shall take care . .
    . '' This is not optional; it is mandatory.
        Second, note that the duty is personal. Execution of the
    laws may be delegated, but the duty to ``take care that the
    Laws be faithfully executed'' is the President's alone.
        Third, notice that the President is not required to take
    care that the laws be completely executed; that would be
    impossible. So the President does have power to make
    enforcement choices, but he must make them faithfully. And
    finally, it is important to remember the historical context of
    the clause: English kings had claimed the power to suspend laws
    unilaterally. The Framers rejected this practice.
        With these principles in mind, we can turn to three recent
    examples. Alas, there are many more one could choose.
        First, the Obamacare suspension. On July 2nd, 2013, just
    before the long weekend, the Obama administration announced via
    blog post that the President would unilaterally suspend the
    employer mandate of Obamacare, notwithstanding the unambiguous
    command of the law. The statute is perfectly clear: It provides
    that these provisions become effective on January 1st, 2014.
    This blog post--written under the breezy Orwellian title,
    ``Continuing to Implement the ACA in a Careful Thoughtful
    Manner''--makes no mention of the statutory deadline. Now,
    whatever it may mean ``to take care that the Laws be faithfully
    executed,'' it simply cannot mean declining to execute a law at
    all.
        Our second example, immigration, is almost an exact mirror
    of the first. In this context, rather than declining to comply
    with a duly enacted statute, the President has decided to
    comply meticulously--but with a bill that never became law.
        Congress has repeatedly considered a statute called the
    DREAM Act, which would have exempted a broad category of aliens
    from the INA, but Congress declined to pass it. So on June
    15th, 2012, the President announced that he would simply not
    enforce the INA against the precise category of aliens
    described in the DREAM Act. He announced, in effect, that he
    would act as though the DREAM Act had been enacted into law,
    though it had not.
        Now, this is clearly not an effort to conserve resources.
    After all, the Solicitor General went to the Supreme Court to
    forbid Arizona from helping to enforce the INA. Exempting more
    than 1.76 million people from the immigration laws goes far
    beyond the traditional conception of prosecutorial discretion.
        Now, Professor Legomsky cited an unsurprising consensus of
    liberal immigration law professors approving the most recent
    action. I will cite just one authority, the President of the
    United States, just a few years ago: ``America is a nation of
    laws, which means I, as the President, am obligated to enforce
    the law . . . . With respect to the notion that I can just
    suspend deportations through Executive order, that's just not
    the case, because there are laws on the books that Congress has
    passed . . . . There are enough laws on the books by Congress
    that are very clear in terms of how we have to enforce our
    immigration system that for me to simply through Executive
    order ignore those congressional mandates would not conform
    with my appropriate role as President.'' I would hope that the
    nominee would agree with this statement.
        My final example is IRS targeting. I believe the witness to
    my left is going to talk about that. I would be happy to answer
    constitutional questions on that topic as well.
        Thank you.
        [The prepared statement of Professor Rosenkranz appears as
    a submission for the record.]

              STATEMENT OF CATHERINE ENGELBRECHT, FOUNDER,
                     TRUE THE VOTE, HOUSTON, TEXAS

        Ms. Engelbrecht. Good morning, Mr. Chairman, Members of the
    Committee. I am the founder of True The Vote, a national, non-
    profit initiative to protect voters' rights and promote
    election integrity.
        I am here today because I was targeted by this Government
    for daring to speak out. I am one of the thousands of Americans
    who have become, sadly, living examples of this kind of
    trickle-down tyranny that is actively endorsed by the current
    administration and rigorously enforced by the Department of
    Justice.
        Over these past few years, the Department of Justice has
    made their presence very well known in both my personal and
    professional life. Since filing for tax exemption with the IRS
    in 2010, my private businesses, my non-profit organizations,
    and I personally have been subjected to more than 15 instances
    of audit, inquiry, or investigation by Federal agencies,
    including the IRS, OSHA, ATF, and the FBI. All of these
    inquisitions began only after filing applications for tax
    exemption. There is no other remarkable event or rationale to
    explain how through decades I went unnoticed by the Federal
    Government but now find myself on the receiving end of
    interagency coordination into and against all facets of my
    life.
        I shared that same timeline as a part of testimony given in
    February of 2014 at a hearing before the House Oversight and
    Government Reform Committee. Time did not permit then, nor does
    it now, to give a full account of the cast of characters and
    confluence of events that fill a binder with over 800 pages
    worth of Government subterfuge. But in one way or another, the
    Department of Justice has found its way into almost every
    aspect of my story.
        In my attorney's testimony at last year's House hearing,
    she spelled out for the Committee why we believed that the
    Department of Justice investigation into the IRS targeting
    scandal was in fact a sham. Within hours of her filing, she
    received a phone call from the Department of Justice now
    suddenly wanting to interview me. It was the first time we had
    been contacted in approximately nine months after the
    investigation had purportedly commenced.
        An arrangement was made with the Department of Justice
    Public Integrity Section, but we were then told that the Civil
    Rights Division would also be participating in my interview.
    Now, this is significant because, at the time, that same Civil
    Rights Division was fighting against True The Vote in the
    courtroom back in Texas, trying to prevent us from becoming an
    intervening party for the State in voter ID litigation that the
    Department of Justice had brought against them.
        The DOJ told my attorney that unless I was willing to waive
    my rights and obligations to the involvement of the Civil
    Rights Division that they would not interview me at all. And to
    date they still have not.
        A handful of months later we met the Department of Justice
    in court again, this time as they represented the Internal
    Revenue Service in a lawsuit True The Vote filed against the
    IRS in 2013. The DOJ assured the judge that there was no more
    evidence that could be recovered from any of the hard-drive
    crashes that had befallen IRS employees named in our suit. All
    of the contents from all of the hard drives was certainly and
    irrevocably lost. This purported dead end in discovery went on
    to become a factor in the judge's ultimate decision to dismiss
    our case.
        Yet just one month later, the Treasury Inspector General's
    investigation turned up an additional 2.5 million emails, of
    which 30,000 were Lois Lerner's. Is there the will to ever get
    to the truth behind this nightmare of citizen targeting?
        For six years, the Department of Justice has operated as an
    increasingly rogue agency where preservation of personal
    liberties runs a distant second to preservation of political
    power. Will this new leadership be any different? As the leader
    of a voter rights organization, I was extremely disappointed to
    hear Mrs. Lynch's comments in a speech she made in Los Angeles
    last February when she said that voter ID laws were passed in
    the Deep South so that ``minority voters would be
    disenfranchised.'' And, further, that she applauded DOJ's
    lawsuits filed against those States having ID programs and
    promised that those lawsuits would continue.
        Seventy percent of Americans believe that showing photo
    identification in order to vote is a common-sense safeguard to
    our electoral process. Should we count on continued resistance
    from the Department of Justice led by Loretta Lynch?
        In fact, the most significant voter disenfranchisement
    threat currently facing our country was made possible by the
    President's recent order of Executive amnesty. States are not
    prepared to deal with the coming influx of illegal aliens
    wanting social service programs like Medicaid, welfare, and, of
    course, driver's licenses. Federal law requires that these
    programs offer voter registration opportunities, which is a
    wonderful thing for American citizens. But these programs were
    not designed to verify citizenship, leaving many States without
    the necessary firewalls to ensure that non-citizens do not end
    up as registered voters. And every vote cast by a non-citizen
    disenfranchises the vote of a citizen.
        We know Mr. Holder is a proponent of amnesty. Where will
    Ms. Lynch stand on the issue?
        In a 2009 speech, General Holder called America a ``Nation
    of Cowards.'' Well, if you remember nothing else from my
    comments, please remember this: I am not a coward and I am not
    a victim. I am a messenger for all of those Americans who love
    our country, love our fellow countrymen, and pray for a better
    tomorrow.
        And I am here to say our country, right now, is at a
    tipping point. We have replaced rule of law with mere
    relativism. We have replaced truth with political correctness
    and, in all of the double speak and double think, we have
    become increasingly unsteady about how we the people factor
    into a future left in the hands of our current leaders. So
    please be bold, please choose wisely, because America is
    watching. Thank you.
        [The prepared statement of Ms. Engelbrecht appears as a
    submission for the record.]
        Chairman Grassley. Thank you to all the witnesses and now
    Ms. Engelbrecht.
        I am going to call in just a minute--or in just 30
    seconds--I am going to call on Chairman Leahy to ask the first
    questions because he cannot come back this afternoon, but would
    you go ahead, Senator Hatch? You said you wanted to say
    something.
        Senator Hatch. Well, I just want to mention to you, Ms.
    Engelbrecht, that we are thoroughly investigating this. The
    only reason we have not issued a report so far is that, as you
    mentioned, there were 30,000 more emails finally discovered.
    TIGTA, the investigative arm of the IRS, has not yet released
    those to us, and we are going to have to go through those
    before we issue a final report. But you have my total sympathy
    for what you have gone through.
        Ms. Engelbrecht. Thank you, Senator.
        Chairman Grassley. And he is speaking as Chairman of the
    Finance Committee.
        Senator Leahy.
        Senator Leahy. Well, thank you, Mr. Chairman. I appreciate
    your courtesy.
        I would ask consent that I put in the record----
        Chairman Grassley. Without objection.
        Senator Leahy. I just mentioned a number of the letters I
    will submit--former FBI Director Louis Freeh, whom we all know
    very well, is supportive of Loretta Lynch, and Congressman John
    Lewis, a number of Justice Department officials both in the
    Bush administration and various Democratic administrations, the
    FBI Agents Association. I will not list all of them, but if
    they could all just be part of the record.
        Chairman Grassley. They will be, Senator Leahy.
        [The letters appear as submissions for the record.]
        Senator Leahy. We have nine witnesses here today. Would
    those who oppose Loretta Lynch as Attorney General please raise
    their hand?
        Let the record show no hands were raised.
        Ms. Fedarcyk, you know, it is amazing, your record. You
    started off as a beat cop in Nevada, joined the FBI, and 23
    years later, you were heading up the FBI's largest field
    office. And like many here, I was briefed during that time on
    some of the investigations you had underway, especially in the
    terrorist area. They were remarkable in their complexities.
        You also dealt, as you said, with Loretta Lynch during that
    time. Do you believe that she has the temperament and the
    demeanor to be an Attorney General?
        Ms. Fedarcyk. Senator, my 2 years' exposure working
    alongside Loretta--and I say ``alongside'' because it was truly
    a seamless partnership--I think gives me a little bit of
    background and experience to be able to say that I firmly
    believe that Loretta Lynch possesses all of the necessary
    attributes that the Nation should demand of an independent
    Attorney General. And I wholeheartedly support her nomination
    and confirmation.
        Senator Leahy. I do not want to put words in your mouth,
    but do you find that she would make independent judgments?
        Ms. Fedarcyk. Yes, sir. And, in fact, that was part of my
    opening statement, the fact that one of the three attributes
    that I wanted to touch upon was the fact that she operated
    independently, did not bow to outside influences, looked at the
    facts, looked at the issues. When she was confronted with an
    issue, she gathered input from stakeholders, solicited their
    input, took a look at the law, made sure that her decisions
    were wholly based on the facts and the law and independently
    arrived at.
        Senator Leahy. Your career in law enforcement was a lot
    longer than my career in law enforcement, but I know during my
    years in law enforcement what we wanted was independence, and I
    appreciate that.
        Mr. Barlow, nice to have you back here. I usually would see
    you in the other Committee room. Do you believe that Loretta
    Lynch has the independence to stand up to others in the
    executive branch, including the President, if she feels she is
    in the right and has to stand up to do her job as Attorney
    General?
        Mr. Barlow. Yes, Senator, I do. In my experience working
    with her and working through any number of different issues,
    seeing her in a variety of different circumstances, I have
    always known her to be thoughtful, well prepared, and someone
    who is interested in the facts and the law. I do not believe
    the President or anyone on this Earth could get her to make a
    decision that she did not believe was right and had a firm
    basis in where her duty was at that moment.
        Senator Leahy. In Louis Freeh's letter, he talks about her
    being part of the group that went to Italy for the funeral of
    one of the top Mafia fighters, somebody that both Director
    Freeh and I had known, and he said that she was there with him
    on that because of her attitude about organized crime. So I
    have known her peripherally over the years and more since the
    nomination.
        But, Dr. Newsome, you have known her longer than all the
    rest of us. Do you believe she would stand up for what she
    believes is right no matter who she might be getting pressure
    from--the President, me, Senator Grassley, or you?
        [Laughter.]
        Reverend Newsome. Absolutely, Senator. She would
    demonstrate independence in the most constructive of ways. One
    of her greatest attributes, as has already been noted, is her
    ability to hold forth with the strength of her own convictions,
    having prepared herself thoroughly, thought through matters
    very, very comprehensively, having identified the issues in a
    way that she could communicate her position in a way that would
    garner nothing but the highest of respect.
        Senator Leahy. I talked yesterday about as a young law
    student being recruited by the then-Attorney General of the
    United States to come to work for him, and I had asked him
    whether he would stand up to the President of the United States
    if need be. He assured me he would. Later he did when he
    prosecuted a man who was essential to the election of the
    President. And when I asked him later about that, I said,
    ``Attorney General Robert Kennedy, what was the reaction?'' He
    said, ``I stayed away from family gatherings for a little
    while.''
        [Laughter.]
        Senator Leahy. Professor Turley, many of us have seen you
    many, many times. The House Republicans have hired you to sue
    the administration in another area, and the taxpayers will pay
    your fee. It was said that this could cost as much as $3
    million. They are not paying you $3 million, are they?
        [Laughter.]
        Professor Turley. I am certainly open to that, Senator
    Leahy. But, no, no one has offered me $3 million.
        Senator Leahy. What is the hourly rate you do charge?
        Professor Turley. I think the hourly rate is set by the
    contract, not by me, I think at a top of $500. But I seem to
    recall that.
        I want to correct something. I am actually working not for
    the House Republicans but for the House of Representatives.
    They voted to approve the----
        Senator Leahy. It was a Republican vote. It was a partisan
    vote, as you know. Not to spin it too closely. But do you get
    paid for your testimony here today?
        Professor Turley. Oh, no, of course not.
        Senator Leahy. Thank you. I thought I would ask that out of
    fairness to you.
        I appreciated the answer when no hands went up to the first
    question I asked, and I hope we can move on. Many of you have
    questions about the past operations of the Department of
    Justice. I have some disagreements with that, but I think we
    are talking about the remaining time of this administration and
    the Department of Justice. And, frankly, as one American and as
    a former prosecutor and as the longest-serving Member of the
    Senate and one who has voted on a lot of Attorneys General,
    both for Republicans and Democrats, I feel very, very confident
    in voting for Loretta Lynch as Attorney General.
        And, again, I thank you, Mr. Chairman, for your courtesy.
        Chairman Grassley. You bet.
        I am going to start out with Ms. Attkisson. In your
    testimony, you say that you have a long career of investigative
    reporting. I am sure you have dealt with pushback from powerful
    people before. What makes the last few years different?
        Ms. Attkisson. I defer somewhat to some of my colleagues
    that I quoted in my opening statement who said this was in
    their experience, which is longer than mine, the most difficult
    administration they had dealt with. Ann Compton, another
    correspondent, said this was the most closed President she has
    dealt with in seven Presidents she has covered. And I see it as
    a high point on a trajectory and a continuum, meaning every
    administration seems to be worse than the last. Although they
    come in promising openness and transparency, they seem to pick
    up where the last one left off. And there has not been as much
    pushback, I think, from Congress and the media in some cases to
    keep that balance because, of course, the Government tends to,
    for whatever reason, covet information, separate itself from
    the public, and treat itself kind of as one and apart.
        But we are supposed to help create a balance so it does not
    get out of whack, and I think we have not done a very good job
    at that in the last couple of years.
        Additionally, this administration has employed very
    aggressive techniques that are available to it that were not
    available years ago, such as using social media and surrogate
    bloggers to put out false information to controversialize any
    reporters who dare to do the normal oversight reporting that we
    have done on other administrations. And I think that has been
    somewhat successful.
        Chairman Grassley. You say in your testimony that you were
    once barred from attending a briefing in the Justice
    Department. What reasons were you given?
        Ms. Attkisson. A briefing was called on Fast and Furious,
    and I was sent over to the office, but Tracy Schmaler, the
    press officer, called back immediately and said do not bother
    to come, that she would not clear me in the building, although
    I have a press pass, I have been cleared, you know, through the
    FBI to walk up to the President of the United States, but she
    was not going to clear me through building security. She did
    not give a reason other than to just say they only wanted the
    normal beat reporters to attend. I cannot tell you how improper
    that is, in my view, how improper it is that Government
    officials who control public assets would misuse their
    authority to, in essence, hand-pick the reporters who get to
    cover the story, I think, in essence, the way they would rather
    it be covered and keep out in some cases more knowledgeable
    reporters who have been covering that particular issue. That
    had never happened to me before. I never tried to go there
    afterwards. It did not happen to me afterwards. But I think
    that was a very important thing that was done, and I think it
    was very improper.
        Chairman Grassley. Do you think any of your colleagues and
    fellow journalists pulled punches because they thought they
    might be barred?
        Ms. Attkisson. I do not personally know. I think the
    reporters on the ground do a great job, but I do know there are
    managers and editors--and I have spoken to executives from
    three networks--who have given instances in which they have
    been specifically threatened with loss of some sort of access
    if the news organization takes a particular news course. So
    that threat of access is definitely felt.
        Chairman Grassley. My next question gets to the fact that
    we are not here to talk about her qualifications--I do not
    think anybody questions that--but whether she can make changes
    in the Department of Justice. What do you think needs to be
    done to correct the chilling effect on the press over the last
    few years?
        Ms. Attkisson. Sometimes I think it is more than just the
    physical steps that are taken. It is an action that is seen and
    a message that is perceived. Right now, regardless of steps
    that have been taken to mitigate damage that has been done,
    there is still a large distrust of the Justice Department, and
    in some cases Government in general.
        There are Members of Congress and staff and whistleblowers
    and other journalists who commonly talk about the idea that
    they believe--whether it is true or not--that they believe they
    are being monitored on their phones and/or computers. How you
    get past that suspicion that has been created by the actions
    that we have seen, it is going to be difficult.
        One very tangible thing that could be done and I think
    needs to be done--and I will not belabor it, but it has to do
    with freedom of information law, which is pretty much pointless
    and senseless now in its application at the Federal level. It
    does no good. It has been used--instead of to facilitate the
    timely release of public information, it has been used as a
    tool to obstruct and delay the release of public information.
    It is no good, you know, if you even do go to court to get your
    public documents, that is at taxpayer expense. It still serves
    the purpose of delay that the bureaucracy wishes to serve. And
    at the end, even if they have to pay the plaintiff's fees, that
    is done with our tax dollars, and basically the Federal agency
    gets rewarded for a job well done because they have been able
    to obscure and delay the release of these public documents. So
    FOIA is extremely broken at the Federal level.
        Chairman Grassley. You just describe my last question, so
    you will not have to answer it, but just to make it clear, you
    felt your computer was hacked, you filed for information on it,
    and you still do not have an answer. Is that right?
        Ms. Attkisson. That is right. The FBI, I think something
    like--I filed a request just in general for information 540
    days ago. A response is due in something like 20 business days.
    But this is very typical of FOIA responses.
        I got a very partial, incomplete response last night to a
    FOIA request that I made with the Department of Justice
    Inspector General, which did not include the forensics that
    supposedly came along with some conclusions and summaries they
    made, so that will be a process that--who knows if I will ever
    get the documents I have been asking for for months. But this
    is very typical, reporters will tell you, and citizens and
    consumers, of their efforts to try to obtain easily accessible
    public information or information that should be easily
    accessible.
        Chairman Grassley. Ms. Engelbrecht, in May 2013, General
    Holder announced that he had ordered the Department of Justice
    to conduct a criminal investigation into the IRS for targeting
    conservatives. At the time, the Attorney General called the IRS
    practices ``outrageous and unacceptable.''
        When did the Department of Justice first reach out to you
    or your lawyer to learn the details of your ordeal?
        Ms. Engelbrecht. We had heard nothing from the Department
    of Justice right up until the day before we were to testify
    before the House Committee. My attorney and I were both
    prepared to testify. My attorney filed her testimony in which
    we were very critical of what had happened to that point, and
    it was not hours later that the Department of Justice called
    for the first time to ask to speak with us, so 9 months
    approximately.
        Chairman Grassley. So after 9 months, General Holder
    ordered the investigation, reached out to you, and what
    prompted them to do so? Do you have any idea?
        Ms. Engelbrecht. I think it was that testimony that was
    filed that left no stone unturned about what we already
    experienced.
        Chairman Grassley. So let me get this straight. Attorney
    General Holder announces an investigation into the IRS'
    targeting of tax-exempt groups like yours, and 9 months later
    it takes a congressional hearing for you to be contacted by the
    attorneys at the Department of Justice. You just said ``yes''
    to that.
        Ms. Engelbrecht. Yes, sir.
        Chairman Grassley. That is disgraceful. To your knowledge,
    who did they talk to before they reached out to you?
        Ms. Engelbrecht. Certainly we saw all over the news that
    they were talking to Lois Lerner and others inside the
    Department. I was in very regular contact with lots of other
    leaders of other organizations that had been targeted. To the
    best of my knowledge, no one has been contacted still by the
    Department of Justice.
        Senator Sessions. Mr. Chairman, I would note that the
    Alabama Tea Party leader who was victimized has still not been
    investigated, been interviewed, even though I directly asked
    the FBI Director to do so a long time ago.
        Chairman Grassley. Yes. Then so to date you have not been
    interviewed by the FBI?
        Ms. Engelbrecht. No, sir. They did ask about 9 months ago,
    but it was upon the contention that they would be allowed to
    have the Civil Rights Division in, and I was not willing to do
    that because the Civil Rights Division had already been on
    record opposing my organization.
        Chairman Grassley. Okay. Well, I do not blame you for
    declining to speak to the Department of Justice. If I had been
    subjected to 15 audits and inquiries from four different
    Federal agencies in less than 3 years, I would only want to
    meet with neutral and fair investigators and certainly not a
    person who had been appointed to do this investigation and who
    also had an outstanding record as President Obama's campaign
    donor.
        One final question. Has the Department of Justice, or
    anyone else for that matter, advised you why four powerful
    Federal agencies descended on your doorstep?
        Ms. Engelbrecht. No, sir. But I would sure like to know.
        Chairman Grassley. Okay. Let me check with my staff whether
    I call on Feinstein or Hatch first.
        Okay, Senator Hatch.
        Senator Hatch. Well, thank you, Mr. Chairman.
        I really appreciate what you have gone through. I cannot
    say much about it because of 6103 Authority, but we are going
    to get to the bottom of it.
        Ms. Engelbrecht. Thank you, sir.
        Senator Hatch. We have already gotten quite a bit to the
    bottom of it.
        I want to come back for a least a few minutes to thank this
    panel of witnesses for contributing to the confirmation process
    regarding Ms. Lynch's nomination. I am going to be a strong
    supporter of her nomination, and I believe she is not only
    qualified but exceptionally well qualified and a very good
    person to boot.
        I especially want to recognize David Barlow who is here
    today, who served as a U.S. Attorney in my home State of Utah
    for 3 years and before that worked on this Committee as chief
    attorney for my companion here in the Senate, Senator Lee.
        Professor Turley, welcome back to the Judiciary Committee.
        Professor Turley. Thank you, Senator.
        Senator Hatch. Yesterday I asked Ms. Lynch whether the
    Attorney General has the duty to defend the constitutionality
    of duly enacted laws if there are reasonable arguments to do
    so. You discussed this in your prepared statement, and I would
    like your comment on one specific issue that I raised.
        Attorney General Holder did not decide never to defend the
    constitutionality of the Defense of Marriage Act but to stop
    defending its constitutionality. His own Justice Department
    lawyers had already been making reasonable amendments defending
    DOMA or this bill, and Mr. Holder decided to stop making them.
    And that is what made me say that he has abandoned his duty. Do
    you agree?
        Professor Turley. I agree. I thought that the decision was
    wrong. I happen to agree with the President. I was a critic of
    DOMA. But I thought that the abandonment of the defense of DOMA
    was inimicable to the rule of law. I thought it violated a
    longstanding understanding with this body. You know, there is
    history here, as you know. You are a student of the
    Constitution, and you know that there has always been this
    tension between the Congress and the Justice Department as to
    who can be in court defending things of this kind. The Justice
    Department has always insisted they are the exclusive
    representative----
        Senator Hatch. Had you been Attorney General, you would not
    have stopped that.
        Professor Turley. Oh, absolutely not. I would have defended
    that law.
        Senator Hatch. Even though you did not agree with DOMA.
        Professor Turley. That is right. What is really----
        Senator Hatch. The Defense of Marriage Act.
        Professor Turley. And what is also troubling is that there
    is no definition in the Attorney General's position as to when
    they will abandon a Federal law. I happen to agree with the
    criticism of the law, but there were plenty of people with good
    faith arguments that it is constitutional, including people on
    the Supreme Court. And if this is the standard for abandoning a
    Federal statute, I could see a President doing this in a host
    of different statutes.
        Senator Hatch. You are right about that. I appreciate your
    comments. I am also glad that your prepared statement discussed
    the controversy over recess appointments. The idea that a
    President has the authority to tell the Senate when it is in or
    out of this or that sort of recess is astounding, and I am glad
    the Supreme Court unanimously rejected the administration's
    position on that matter.
        In yesterday's discussion of prosecutorial discretion, the
    administration's defenders repeatedly said that this is really
    only about wisely using limited resources. You refer in your
    statement to the ``ill-conceived litigation strategy of the
    Justice Department'' defending this bizarre position on recess
    appointments. I wonder how many resources the Department uses
    pursuing these extreme positions in court that, as I said
    yesterday, got shot down over and over again, some 20 times. Do
    you agree?
        Professor Turley. Absolutely. I testified before the
    litigation, after the appointments were made, and I said that,
    in my view, even though I thought very highly of the nominee,
    the appointments were flagrantly unconstitutional. There are
    close questions in the Constitution, in my view. This was not
    one of them.
        Senator Hatch. That is one of the reasons I admire you. I
    mean, you are wrong on so many things, but you stand up----
        [Laughter.]
        Senator Hatch. And you are right on a lot of things, too. I
    have got a lot of respect for you.
        Professor Legomsky, your prepared statement refers to a
    November 2014 letter from immigration law scholars. It states
    that the President's action establishing the Deferred Action
    for Parental Accountability program is ``within the legal
    authority of the executive branch of the United States.'' But
    didn't the Justice Department's own Office of Legal Counsel in
    its opinion issued a week earlier conclude that, ``The proposed
    deferred action program for parents would not be a permissible
    exercise of enforcement discretion''? Even OLC, the Office of
    Legal Counsel, which seems to be into efficacy rather than
    analysis these days, disagrees with these scholars on this
    issue.
        Professor Legomsky. Senator, the OLC memo distinguished
    between granting deferred action to those children who had
    arrived at an early age on the one hand, and in addition
    granting it to the parents of U.S. citizens and lawful
    permanent residents, while at the same time suggesting that it
    might not be legal to extend deferred action to the parents of
    the DACA recipients themselves and----
        Senator Hatch. All right.
        Professor Legomsky. I do personally disagree with that
    latter suggestion of OLC, but otherwise, I thought the memo was
    very thoroughly and well articulated.
        Senator Hatch. Okay. Sheriff Clarke, I want to personally
    thank you for your advocacy and leadership for police people
    all over this country and coming here today and giving your
    testimony. As I observed the reactions to the incidents like
    that in Ferguson, Missouri, I, too, became concerned about this
    rhetoric and the broad-brush picture that seemed to be
    developing about all law enforcement.
        We heard elected officials claim that police officers
    across the country were indiscriminately shooting Black men,
    simply out of fear. Those incidents happened at the local level
    and involved local law enforcement. How much do you think that
    the Attorney General of the United States can affect the
    situation, negatively or positively?
        Sheriff Clarke. Thank you, Senator. A lot. The Attorney
    General of the United States has a big stage, and when he or
    she talks, people listen all across the country. And it gives
    the impression that that is the policy of the United States
    Department of Justice, and they have to choose their words
    carefully.
        Senator Hatch. Well, thank you.
        Ms. Attkisson, I do not know what your politics are, but I
    admire you greatly. You are what an investigative reporter
    ought to be. And, frankly, your testimony here today has been
    very profound, very strong, and it ought to wake everybody up
    at the Justice Department and in the administration, and in all
    administrations, both this one and any in the future.
        So you are doing a great public service here and having the
    guts to stand up and take the positions that you have. I have a
    lot of admiration for you.
        Professor Rosenkranz, during the hearing yesterday, I
    acknowledged that prosecutorial discretion obviously involves
    enforcement of resource allocation decisions in individual
    cases. But I said, ``Applying that discretion across the board
    to entire categories of individuals has the same effect of
    changing the law itself.'' Do you agree with that?
        Professor Rosenkranz. Yes, I do, Senator. It is not a clear
    line that one can draw, but when you start to talk about
    exempting millions and millions of people from Acts of
    Congress, this looks a lot more like legislation than like
    enforcement discretion.
        Senator Hatch. Professor Legomsky offers the Supreme
    Court's decision in Arizona v. United States to justify using
    enforcement discretion in a categorical fashion. But the
    Court's opinion uses the word ``individual'' more than a dozen
    times.
        For example, it discusses ``the power to bring criminal
    charges against individuals'' and whether ``an officer has
    probable cause to believe that an individual is removable.''
        In fact, one of the quotes from the Court's opinion that
    Professor Legomsky includes in his prepared statement says,
    ``The equities of an individual case may turn on many
    factors.'' Does that support using discretion for individual
    enforcement decisions in a categorical way which has the effect
    of changing the underlying statute itself?
        Professor Rosenkranz. I quite agree with you, Senator. I
    think the traditional conception of prosecutorial discretion
    has always been case by case.
        Senator Hatch. Okay. Your prepared statement says that the
    most important dimension of the Attorney General's function
    ``is to advise the President on the scope of his Executive
    powers and duties.'' Does that function happen on a blank
    slate? Or do the essential principles of our system of
    Government actually counsel special attention to the limits of
    presidential power?
        Professor Rosenkranz. Quite right, Senator. I think the
    core of that responsibility is for the Department of Justice
    and the Attorney General in particular to think hard about the
    meaning of faithful execution of the laws and to counsel the
    President when he is close to the line of unfaithful execution.
        Senator Hatch. In other words, is the Attorney General
    there to find some plausible, theoretical justification for
    whatever the President wants to do? Or is she there to enforce
    the real, substantive limits on power that are necessary for
    all of our livery?
        Professor Rosenkranz. The Attorney General should help the
    President to find legal ways to do what he wants to do, but at
    the end of the day, it is essential for the Attorney General to
    be able to say, ``No, Mr. President, that is something you
    cannot do.''
        Senator Hatch. My time is up. Thank you.
        Chairman Grassley. Senator Feinstein.
        Senator Feinstein. Thanks very much, Mr. Chairman. I am
    going to be very brief.
        This is really a hearing to discuss the qualifications of a
    nominee--in this case, a very distinguished, very exceptionally
    well-qualified nominee, on virtually any area that one can
    state. I really do not want to see that diminished by a
    critique by various people of the administration, and to me,
    Loretta Lynch is an outstanding role model, not only for women
    but for all of us in this arena, because as you can see, so
    much of this arena has become so partisan that here is the use
    of a hearing on the qualifications of a nominee to be used to
    criticize the administration in areas that Loretta Lynch had
    nothing to do with. I guess that is the coin of our realm here,
    but I remember other nominations where, if the issue was
    independence, where nominees fully admitted--and the Ranking
    Member mentioned this--that they were a wing of the staff to
    the President.
        So I think we have a very special nominee in front of us,
    very skilled, very determined, but most importantly, I think
    she has used her life so well to be that combination of, what
    was said by one newspaper, combination of velvet and steel, and
    to see the impact of that on the strong support that she has
    for all of us in this arena I think is a kind of role model as
    how you--there are a lot of people that know how to separate
    everybody. There are very few people that know how to bring
    people together again and really develop a kind of consensus
    that can lead us forward. And because this institution is so
    split, the role of Loretta Lynch in this day and age I do not
    think can be underestimated.
        So the fact that when Senator Leahy asked the question--and
    I forget how he put it--you know, which of you is in opposition
    to Loretta Lynch, no one raised their hand. And I think it is
    that way throughout the Nation. I think we should get on with
    the business. We should see this woman confirmed as quick as
    possible. Thank you very much. That is my statement, Senator
    Whitehouse.
        Senator Whitehouse [presiding]. Before I start claiming my
    time, let me say where we stand in terms of what is going on
    here, because the Chairman has just had to leave for a vote and
    he has left me instructed that if Senator Lee arrives or if
    another Republican arrives at the conclusion of my time, then
    they will be recognized. But if no one else is here, then we
    will recess at that point until 1:00 p.m.; is that correct?
        Okay. Good.
        Let me take my time to review the bidding where we are. No
    witness present today opposes Ms. Lynch as the nominee for
    Attorney General. Ms. Attkisson is here as a litigant against
    the United States with her lawyer sitting beside her. Her
    testimony never mentions the nominee. And I would ask,
    actually, unanimous consent that the redacted version of the IG
    report related to her claims be made a matter of record, which
    without objection it will be.
        Mr. Barlow supports the nominee enthusiastically. Reverend
    Newsome supports the nominee enthusiastically. Ms. Fedarcyk, to
    use her phrase, whole-heartedly endorses the nominee. Professor
    Legomsky is here mostly to talk about immigration. His
    testimony does not make clear whether he does or does not
    support the nominee. May I ask you if you do?
        Professor Legomsky. I certainly do. Thank you for asking,
    Senator.
        Senator Whitehouse. Very well. That is now clear.
        Mr. Turley says that his interest today is not to discuss
    Ms. Lynch as much as the Department she wishes to lead. But he
    goes on to say that he has no reason to doubt the integrity and
    intentions of Ms. Lynch, who displays obvious leadership and
    strength of character.
        Sheriff Clarke is here and wishes the nominee well. But he
    goes on in his testimony to say, ``I want to spend some time
    critiquing Eric Holder's tenure.''
        Professor Rosenkranz takes no position on the nominee, but
    comments on the tenure of Eric Holder; is that correct,
    Professor?
        Professor Rosenkranz. [No audible response.]
        Senator Whitehouse. And Ms. Engelbrecht, have I said that
    right? Ms. Engelbrecht is an advocate for voter identification
    laws who would like Ms. Lynch to agree that voter
    identification laws are not efforts to suppress voting but took
    no specific position on the nominee; is that correct?
        Ms. Engelbrecht. No specific position, sir. I have all the
    hope in the world that----
        Senator Whitehouse. Very good.
        Ms. Engelbrecht. It will work out.
        Senator Whitehouse. So let me say two things: one, some
    many years ago George Washington set for himself what he called
    his Rules of Civility and Decent Behavior. He wrote 110 Rules
    of Civility and Decent Behavior to help him guide his own
    conduct in upright and honorable ways. I think it was Rule 89
    of those Rules of Civility and Decent Behavior that George
    Washington kept that said the following: ``Speak not evil of
    the absent for it is unjust.''
        There are plenty of forums where the Attorney General would
    have an opportunity to defend himself. This is not one. There
    is no forum here, there is no opportunity here for Attorney
    General Holder to answer these various charges that have been
    made. I think that is fundamentally unjust. And I think it is
    frankly beneath the dignity of this Committee at a time when we
    have a very significant and solemn charge before us to
    determine the fitness of a specific individual to be Attorney
    General of the United States to launch a series of unanswerable
    attacks.
        I have no problem with the attacks. My problem is that
    choosing this forum for them where the individual in question
    has no chance to answer I think fails President Washington's
    test that one ``speak not evil of the absent for it is
    unjust.''
        With respect to the other issues, I think we will have
    plenty of time to ventilate those in other forums. I am sure we
    will have plenty of time to address immigration, address voter
    ID and voter suppression, address surveillance, address all of
    those things. But, once again, in this forum, there is no
    opportunity for another side to be presented. And I regret that
    this hearing and this solemn occasion has been corrupted to
    that extent and turned into what appears to be a sound bite
    factory for Fox News and conspiracy theorists everywhere.
        We actually have a nominee in front of us. She appears by
    all measure to be a terrific person. I think we should get
    about the business of confirming her and get about the business
    of voting on her. And if people have the strength of view that
    Attorney General Holder is not a good leader of the Department
    of Justice, the very best way to act on that would be to
    confirm Ms. Lynch as quickly as possible.
        Now, I happen to disagree with that view. I am proud of
    what Attorney General Holder has done and I would once again
    reference that he did not inherit a Department of Justice that
    was in good order.
        The Office of Legal Counsel had written opinions that were
    so bad and so discreditable that even that administration was
    forced to withdraw them once they saw the light of day and
    received peer criticism.
        U.S. Attorneys of Republican and Democratic persuasions and
    appointments alike rose in irritation and anger about the
    effort to manipulate the United States Attorneys that exploded
    into a scandal. There was that other creepy, midnight assault
    on a sick Attorney General in the hospital when White House
    lawyers came over to try to get his signature on a document and
    thankfully now-FBI Director Comey put a stop to that nonsense
    and ultimately the Attorney General of the United States was
    forced to resign from that office.
        So stepping into that mess--and there were plenty of other
    features I could add--I think that Attorney General Holder is
    entitled to great credit for having put that Department back on
    its feet. I understand that he made decisions that people
    disagree with. I, for one, believe that those decisions are
    within the bounds of legitimate debate. I am not suggesting
    that my colleagues need to agree with them, but I think to
    personalize them so much as to say that it shows a moral or
    personal defect on his part reflects really more the narrowness
    of a specific ideology than any true judgment about the merit
    of a man who has served his country as a United States
    Attorney, as the Deputy Attorney General, as a Judge, and as
    Attorney General with what I consider to be great distinction.
        So with that I will conclude my remarks. I see my friend
    and former Attorney General colleague, Senator Cornyn, is here
    as well. So under the Chairman's direction, as I yield my time
    it will go, as I understand it, to Senator Cornyn. Okay. I
    yield my time.
        Senator Cornyn [presiding]. Thank you. I would thank my
    colleague whom I work with on a number of important matters. We
    are working on some important prison reform legislation,
    demonstrating that dysfunction has not taken over everything
    here in Washington--that we can actually work on things even
    though we have other differences.
        But I just have to disagree with him, and I guess he
    disagrees with himself, because while he criticized the
    criticism of Attorney General Holder, he seemed to recall with
    great clarity the problems with the Bush Justice Department, or
    at least the things that he disagreed with. But that is the
    great thing about the United States Senate and about our great
    country, where all of us ought to be free to express our views
    without fear, certainly of Government intimidation.
        And, Ms. Engelbrecht, I am glad to see you personally, but
    I find your testimony, once again, chilling and I admire your
    courage. And it cannot be easy for a citizen to fight their
    government with all the vast resources arrayed against you. And
    I just want to assure you, you are not alone. And Senator
    Hatch, who is Chairman of the Finance Committee which has
    jurisdiction over the Internal Revenue Service, he's an
    honorable man and I know you can count on his commitment as
    well to get to the bottom of some of the matters that you refer
    to, but particularly regarding the Internal Revenue Service. So
    thank you again for your courage and your willingness to stand
    up to, and I would say also, inspire a lot of Americans who
    feel like Government has gotten too big and too intrusive and
    is crushing the spirit and the voice of a lot of individual
    citizens. So thank you for being here.
        And, Ms. Attkisson, I have to tell you how much I am
    chilled by what you have to say. When I was in college, I was a
    journalism student before I lapsed into the law and became a
    lawyer. But the idea that you would be targeted and surveilled,
    intimidated, or attempt to intimidate you from doing your job,
    and I know you are a skewer of power on an equal opportunity
    basis. I can tell, from some of your testimony, you are not
    picking sides, but you are trying to do your job and it is
    repugnant to me that Government should try to array its power
    against the freedom of the press to intimidate people like you.
    And I appreciate the fact that you are not intimidated.
        I told Senator Leahy, whom I partnered with on a number of
    Freedom of Information reforms, he and I are the Senate's odd
    couple when it comes to that, people who ideologically are
    bookends, but who agree in the public's right to know, and
    certainly we want to work with anybody who has got a good idea
    how we can make the system better. So I welcome that
    opportunity.
        I just want to say that Ms. Lynch appears to be an
    outstanding example of the American dream and somebody who has
    got a distinguished career as a United States Attorney. The
    challenge is--for her and for everybody who takes on a job as a
    member of the President's Cabinet--is you are no longer just a
    prosecutor, you are somebody who is responsible for
    implementing policies, implementing policies of this President.
    And that has been the subject of a lot of discussion here
    today. And as I told Ms. Lynch privately, you have got two
    choices. You can take the job and implement the policies, or
    you can say, ``Mr. President, I think what you are trying to do
    is improper, even illegal, unconstitutional'' and quit, or not
    take the job in the first place. I do not see any middle ground
    on any of that.
        And while I have the same reaction to Ms. Lynch's testimony
    that I had to Sarah Saldana's testimony, who was a United
    States Attorney from Dallas, Texas, whom Senator Kay Hutchison
    and I recommended to the President for appointment, and who is
    now the Director of Immigration and Customs Enforcement, I told
    her the same thing: You were a prosecutor, you have done an
    outstanding job, but now you are going to be in a policy
    position where you are going to be asked to implement policies
    that I disagree with and you may in fact disagree with. So you
    will be left with that Hobson's Choice.
        So while I hear some of my colleagues talk about the
    independence of the Attorney General, well, it is perhaps some
    independence, but it really is the independence of one's
    personal conviction not to cross that line and to be able to
    tell even somebody as powerful as the President of the United
    States ``no'' when he's gone too far. Professor Rosenkranz, I
    would be interested in your views on whether you think the
    Attorney General can truly be independent.
        Professor Rosenkranz. Well, I do not think ``independence''
    is quite the right word. The Executive power is all vested in
    the President and that is as it should be. But the President
    has delegated to the Attorney General the function of advising
    him on legal issues. And that gets delegated again to the
    Office of Legal Counsel. And it is crucial for that function to
    be performed with as much integrity and independence as
    possible.
        At the end of the day, the President can disagree with the
    Attorney General, can overrule the Attorney General, can even
    fire the Attorney General. But it is essential for the Attorney
    General to say ``no,'' if necessary, to say, ``Mr. President, I
    have explored every legal option, and this is something you
    cannot do. This violates the Constitution.''
        Senator Cornyn. Professor Turley, I know that Senator
    Grassley asked you questions about your representation of the
    United States House of Representative in a lawsuit. As you
    probably know, there is also a lawsuit pending in Brownsville,
    Texas, brought by 26 different States challenging the
    President's Executive action that we have been discussing here
    this morning. And obviously, any lawsuit that is brought, the
    plaintiff has to establish standing to sue a claim of harm to
    them and not to the public generally. I remember that much of
    my law school.
        But my point is, the policies of the Federal Government
    have a direct and very negative impact on State and local
    governments and on citizens who live--particularly in border
    States like mine--where just not that long ago we had what the
    President himself called a humanitarian crisis. Tens of
    thousands of unaccompanied children coming from Central America
    drawn by the magnet of a promise that if you can make it here,
    you are going to be able to stay here, something that a lot of
    people would like to do.
        So I am not going to ask you to opine about the merits of
    that particular lawsuit. The judge there will probably make a
    decision here in the coming weeks, but do you see anything
    inappropriate about people who are aggrieved or suffering harm
    as a result of the actions by the President of the United
    States going to court and asking the court to make a decision?
        Professor Turley. No, I do not. But I have long been a
    critic of the current standing doctrines that have been
    developing over the years. I think Walter Dellinger put it best
    when we testified in the House recently together and he said
    that he had spent his career as a standing hawk. And I have
    spent my career as a standing dove in that sense. I actually
    believe that it is important to give access to the courts,
    particularly for States. I think it is rather absurd to say
    that States have effectively no skin in the game, that they
    have no injury when you have these Federal pronouncements
    essentially coming down and imposing considerable costs upon
    them. And I think that you really see it in a sharp relief when
    these States have trouble even being heard on the merits.
        And so when we look at all of these cases in terms of the
    effort to keep the merits from being heard, I think that has a
    really dysfunctional effect. I think that is one of the reasons
    we are seeing so much chaos--is the lack of definition in the
    separation of powers and these constitutional rules. That can
    be rectified if we give greater access in the courts.
        Senator Cornyn. Well, of course, from my perspective,
    coming from Texas, I see the policies of the Federal Government
    particularly with regard to immigration as having a very direct
    and real impact on taxpayers and citizens who are forced to pay
    the price in terms of healthcare, education, law enforcement,
    and the like, and they really have no recourse because they do
    not have the ability to do that for ourselves, something that
    is committed in the Constitution to the Federal Government's
    responsibility. And when the Federal Government does not do its
    job, the Federal Government does not necessarily feel the
    negative impacts; it is people who live in those places like
    Texas where it is very real.
        I want to just maybe ask one last question and not to get
    too far down in the legalese, but Ms. Attkisson, as a result of
    the investigations that have been done here in Congress on the
    Fast and Furious gunwalking debacle, we were met with a claim
    of executive privilege by the Attorney General that was then
    embraced by the President of the United States even though
    there was no indication whatsoever that the President or higher
    level people at the White House were actually involved in this.
    But, could you just describe the sort of obstacles that you
    have run into in the course of your investigation of the Fast
    and Furious scandal?
        Ms. Attkisson. Well, some of this, which is already sort of
    in the public record, when I began covering this story, the
    Justice Department employees put out internal emails that said
    the story was false and the whistleblowers were not telling the
    truth, which we now know it has been proven they were and the
    Justice Department has admitted it. But they put out a series
    of false implications and information along the way. They
    launched a campaign in my view of calling superiors, bosses,
    colleagues, social media using the bloggers that cooperate with
    them and work with them, in some cases directly, to disparage
    the reporting as if it were not true, repeating the false
    talking points in many cases.
        And it was, you know, an all-out effort to try to chill the
    reporting and to stop other reporters that might be pursuing
    it. You can see from internal emails that have recently been
    released--after a lawsuit has been filed--that were withheld
    under executive privilege, the extent of the lengths to which
    public affairs officials inside the Government went to try to
    stop this line of reporting on a story that they clearly
    thought was proving to be very damaging for them.
        Senator Cornyn. Thank you. I am advised that another roll
    call vote has been called on a series of votes that we are
    having on the floor of the Senate. So at the request of the
    Chairman, the Committee will stand in recess until 1:30.
        Thank you.
        [Whereupon, at 12:02 p.m., the Committee was recessed.]
        [Whereupon, at 1:41 p.m., the Committee reconvened.]
        Chairman Grassley. I want to thank everybody for
    understanding the chaotic way the Senate is run when we have
    all these votes and we have this important issue before us of
    who should be the next Attorney General. So thank you all for
    your flexibility, as well as my Members.
        Before we turn back to questions, I want to take a moment
    to comment on some criticism that we heard this morning from
    one Member on the Democratic side about some of the witnesses
    who are here today in this hearing.
        I will not speak for any other Member of the Committee, but
    I, for one, find it absolutely disgraceful how our Government
    has treated some of our fellow citizens; and the Department of
    Justice, under its current leadership, has failed--really
    failed--to meet some of its most basic responsibilities.
        Every single one of these witnesses, every one of them,
    speaks directly to Ms. Lynch's nomination, because the question
    in my mind is, as I stated yesterday, will she take these flaws
    seriously? Will she fix them? And I note that it was not too
    long ago that Democrats agreed that it was perfectly
    appropriate to call witnesses to address what they viewed as
    problems at the Department.
        So I would note to the naysayer on the other side of the
    aisle, it was not beneath the dignity of the Committee when
    they were in charge, so why would it be now? And I would make
    reference to Judge Mukasey's hearing before he was approved to
    be Attorney General. The other side called witness after
    witness who testified regarding issues that occurred at the
    debarment while he was serving as a Federal judge in the
    Southern District of New York.
        So, for instance, maybe it does not bother you that the IRS
    targeted conservatives and the Department does not seem to have
    taken the issues seriously, but it bothers me a great deal, and
    I want to know if Ms. Lynch is committed to tackling this
    problem and a range of others.
        Senator Sessions.
        Senator Sessions. Thank you, Mr. Chairman.
        And the Office of Attorney General is a big deal, and we
    need people who are able to take questions. The Department is
    entitled to be criticized and they are not perfect.
        And I love the Department of Justice. I served in it 15
    years. I was an Assistant United States Attorney for over two,
    and United States Attorney for 12, and I loved that job and I
    loved the people in it, and I so admired this Department. And
    as I told Ms. Lynch in private conversation, you have to
    understand the reputation of this great Department is being
    eroded. The situation is not good in this country. It has got
    to be re-established. We are not going to allow this to become
    a political body that just conducts its work in haphazard,
    political, reactive ways.
        And I think Senator Hatch raised one of the questions that
    still galls me, and that is the failure to defend DOMA, the
    Defense of Marriage Act. That was a defensible act, and
    everybody that has ever been Attorney General or in such an
    office knows you have a duty to defend the laws passed by
    Congress. That is the Attorney General's duty.
        Eric Holder and President Obama failed to do so, and it was
    shameful and disgraceful, an abandonment of the rule of law.
    And more and more people understand that. So I am not happy
    about what has happened to my Department of Justice.
        And Ms. Englebrecht, I think it should be investigating
    these matters. They have not yet contacted people in Alabama,
    and I specifically requested it. Is this politics? Why not? Do
    you not go to the victims first--that is my experience--and get
    their story?
        Well, Professor Turley, I thank you for your comments on
    what is happening with regard to executive overreach and
    congressional weakness. I think it is a--I know we all--you
    know, I do not deny that I am a Republican conservative, but I
    believe this is not a--just a partisan matter.
        I mean, this is a huge erosion of constitutional powers of
    the United States Congress when the President of the United
    States, in contradiction to law, gives lawful status to people
    who are here unlawfully under the law, and not only that,
    creates a Social Security number for them, a photo ID, and an
    authorization to work and a right to participate in Social
    Security and Medicare. I mean, this is a stunning event, and we
    are in denial here, a lot of people, about the seriousness of
    it.
        So I wanted to ask you about your testimony in the House.
    You say this: ``The center of gravity is shifting and that
    makes it unstable''--and you are talking about the separation
    of powers--``and within that system you have the rise of an
    uber-presidency. There could be no greater danger for
    individual liberty, and I really think that the Framers would
    be horrified by that shift, because everything they have
    dedicated themselves to was creating this orbital balance, and
    we have lost it. It is not prosecutorial discretion to go into
    a law and say an entire category of people will no longer be
    subject to the law. That's a legislative decision.'' And you go
    on at great--that is just a portion of your--I think, correct
    dissection of the fundamental issues at stake.
        Would you--I guess you stand by that? Do you have any
    further comments you would like to make on that subject?
        Professor Turley. Well, I certainly do stand by it. The
    interesting thing about the Madisonian system that we have is
    that--is the three branches are effectively locked in an orbit,
    like three bodies. In fact, the interesting thing about Madison
    is he was fascinated by Newton and the types of ways that
    bodies would interact. And our system reflects that.
        And what happens is, if you have a tripartite system that
    is based on a principle of balance and then you introduce a
    dominant branch, it does not just fall out of kilter, it
    creates a very dangerous circumstance.
        There are many legitimate questions that come out of the
    Constitutional Convention, but the one thing that returns over
    and over again is the collective view of the Framers--
    federalist and anti-federalist--that the thing we have to fear
    most in this system is the rise of a concentration of power in
    one individual. And they knew a lot about it, because they had
    just gotten rid of a person who had that type of concentrated
    power.
        Senator Sessions. King George.
        Professor Turley. Exactly.
        Senator Sessions. And I had the Congressional Research
    Service look at that matter of fact, and they concluded that
    King George III--at the time of the American Revolution--was
    unable to enact or repeal any laws without the approval of
    Parliament. And this was the heritage we had from the British,
    and that is what part of the Revolution was about. It is a
    fundamental principle of the formation of our Government that
    the Executive does not get to make laws. And I appreciate that.
        Professor Rosenkranz, briefly if you do not mind, do you
    agree with that, that we are at--I think Professor Turley once
    said--a tipping point in the question of Executive and
    legislative power, and it is a matter of grave importance to
    the republic?
        Professor Rosenkranz. I think it is certainly a matter of
    grave importance, and I think we have seen dramatic examples of
    executive overreach in the last several years, things that are
    unprecedented, things we have never seen before.
        Senator Sessions. Well, and do you agree with Professor
    Turley that one of the most significant overreaches is the
    President's Executive actions with regard to amnesty?
        Professor Rosenkranz. Yes, I absolutely do. I think it is
    inconsistent with his obligation to ``take care that the Laws
    be faithfully executed,'' in particular, the Immigration and
    Nationality Act.
        Senator Sessions. Well, it seems to me that they are
    arguing that ``take care that the laws be executed'' means you
    have to do the best you can to enforce the laws under the
    circumstances, which has some legal basis. But in truth, don't
    they go well beyond that and create whole new laws that are not
    even on the books? They are not authorized to do that, are
    they?
        Professor Rosenkranz. You are quite right. This action
    looks a lot more like a legislative action than like Executive
    discretion.
        Professor Legomsky. Senator, may I jump in and comment on
    that, please?
        Senator Sessions. Yes.
        Professor Legomsky. Thank you. We have heard a lot of very
    broad, general statements to the effect that separation of
    powers is important, which of course it is. That the President
    is not above the law, and of course he is not. But I have yet
    to hear any specific rebuttals to the points that I was making
    earlier about the specific sources of authority that Congress
    has provided.
        We do have this legislation which specifically says it is
    the responsibility of the Secretary of Homeland Security to
    establish ``national immigration enforcement policies and
    priorities.'' And not only that, but Congress has specifically
    directed the administration to prioritize three things: border
    security, national security, and the removal of criminal
    offenders--and those are precisely the priorities reflected in
    the recent Executive actions.
        Senator Sessions. Well, I appreciate that, but I do not
    agree. Congress laid out 500 pages of detailed law involving
    immigration. Many of them are mandatory, and they are not being
    followed. And we had the--yesterday, Professor Rosenkranz, I
    asked Ms. Lynch who has more right to a job in this country, a
    lawful immigrant who is here, a citizen, or someone who entered
    the country unlawfully? And her answer: I believe that the
    right and obligation to work is one that is shared by everyone
    in the country, regardless of how they came here. And certainly
    if someone is here, regardless of status, I would prefer they
    would be participating in the workplace.
        Do you think that contradicts immigration law of the United
    States?
        Professor Rosenkranz. I do think this work authorization
    aspect of the President's action is perhaps the most troubling
    aspect of it. The traditional view of prosecutorial discretion
    is inaction; it is the President deciding not to do something
    to someone. But this affirmative action of giving folks
    permits, that is something that is unheard of in traditional
    prosecutorial discretion.
        Senator Sessions. I agree with that. As a prosecutor, I
    know what prosecutorial discretion is. Everybody that has to
    deal in the real world uses that on a case-by-case basis.
        And I further asked her: I want to have a clear answer to
    this question, Ms. Lynch, do you believe the Executive action
    announced by the President on November 20th is legal and
    constitutional, yes or no? And Ms. Lynch said: As I have read
    the opinion, I believe it is, Senator.
        So we are being asked here to consider her nomination. Mr.
    Rosenkranz, when we decide who to vote for in the United States
    Senate to confirm somebody to the United States Cabinet, do you
    think it would be improper for the voting body, the United
    States Senate, to consider whether or not we believe that
    person will be an advocate for and a supporter of laws we think
    are unconstitutional and offend the policies Congress has
    established? Should we consider that when we decide who to vote
    for?
        Professor Rosenkranz. I think that is absolutely the sort
    of thing that you should be considering, yes.
        Senator Sessions. Well, I do too. And I believe Congress
    has a duty to defend its legitimate constitutional powers. It
    has several powers of its own. One of them is the power of the
    purse; one of them is the power of confirmations.
        I do not see any need for this Congress to confirm somebody
    to be the chief law enforcement officer of this Nation who is
    at that table insisting that she intends to execute a policy
    that is contrary to law and to what Congress desires and what
    the American people desire, and says that someone here
    unlawfully is as much entitled to a job in this country as
    somebody who is here lawfully. It is just beyond my
    comprehension. Are we through the looking glass? Can't we see
    plain fact?
        So everybody wants to talk about the politics. Well, the
    President can do this; he's shutting down Homeland Security.
    All these complaints. But the real question is fundamental:
    What are we going to do to defend our constitutional heritage?
    And what will this Congress be able to say to subsequent
    Congresses if we acquiesce in these kind of activities? I think
    it has permanent ramifications for the relationships of the
    branches of government.
        Mr. Chairman, you have got a meteoric rise there, I see. I
    am impressed.
        [Laughter.]
        Senator Sessions. But I have got to say, no one could
    handle it better. I am proud of you.
        [Laughter.]
        Senator Sessions. I am over my time. Thank you very much.
        Senator Lee [presiding]. Thank you very much, Senator
    Sessions. And thanks to all of you for joining us today. I
    deeply enjoyed your testimonies this morning before we had to
    go and vote, so thank you for being here. Thank you for sharing
    with us your opinions, which are helpful and informative.
        I want to begin my remarks just by commenting on some
    concerns that I have heard expressed from my colleagues on the
    other side of the aisle. Some have suggested that what we
    really ought to be doing here should be focused almost
    exclusively on Ms. Lynch's impeccable public service record and
    on the fact that she has served her country well, has served
    her clients well, that her resume is not just amazing, but that
    it is extraordinary--and it absolutely is; that we ought to be
    focused on those kinds of qualifications and that we ought not
    be focused on the Department of Justice and on some of the
    things that are going wrong with it.
        I have a somewhat different view of that in that I think
    both are relevant. For example, if we were running a company,
    if we were running a business and we were looking for a new
    CEO, if we were looking perhaps more appropriately for a
    general counsel, we would probably want to know what someone's
    view of the organization as it existed might be. We would
    probably want to know whether that person acknowledged the
    problems within the company, whether they were legal problems
    or other types of problems that the company faced.
        So I think we are kidding ourselves if we suggest that we
    should not ask a nominee, someone who has been nominated to be
    the Attorney General of the United States, about problems
    existing within the U.S. Department of Justice. I think that is
    absolutely essential. And previous hearings in this Committee
    have borne that out--previous hearings in this Committee where,
    for example, this Committee reviewed Michael Mukasey after he
    was nominated to be the Attorney General of the United States
    in the last presidential administration. I think those hearings
    bore that out.
        Now, yesterday we heard from Ms. Lynch. I am very impressed
    with her legal abilities, with her analytical abilities. Very
    impressed with her resume and her strong record of public
    service. I was, however, very disappointed yesterday in the
    fact that in response to many hypothetical questions that were
    asked of her, we did not get a straightforward response,
    particularly when it comes to excesses of Executive power,
    particularly when it came to questions about prosecutorial
    discretion and so forth.
        For those of you who may be watching this hearing who are
    not burdened with a law degree, hypothetical questions are the
    bread and butter of the American legal education system. To a
    very significant degree, especially in appellate litigation,
    they are the bread and butter of the practice of law.
        One thing that I think all of us were taught in law school
    is that even when you do not want to answer a hypothetical
    question, even when it does not have an easy answer, you need
    to try to answer the question. If you do not, the judge will be
    very unhappy. I was disappointed yesterday that when I asked
    some questions of Ms. Lynch, she refused to give me a direct
    answer.
        In an attempt to try to elicit an answer from her, I made
    the hypothetical increasingly simpler, increasingly clearer,
    asking questions like the following: Imagine a hypothetical
    State in which there is a 55-mile-an-hour speed limit. Imagine
    that the public is crying out for relief from that law; there
    is pretty widespread agreement that the speed limit ought to go
    up at least to 65, maybe to 75, and that within the legislature
    there is also widespread support for that. But the legislature
    cannot agree on the exact speed limit to which it ought to be
    increased. So the governor, seeing an opportunity, then says,
    well, I am just going to come out with a new policy, and my
    policy is going to say if you want to exceed the 55-mile-an-
    hour speed limit, all you need to do is write to the governor's
    office and I will send you back a permit, a permit that says
    for the next three years, while I am the governor, I will not
    give you a ticket if you drive faster than 55 miles an hour, as
    long as you do not go faster than 75.
        And I asked Ms. Lynch: Would that be appropriate? Would
    that be consistent with the rule of law? Would that be an
    appropriate exercise of prosecutorial discretion?
        I did not get what I perceived to be a direct, one-word
    answer out of that, nor did I get a five-word answer out of it.
    I did not get an answer that I thought was satisfactory. What I
    did get was a response that said: I would really need to know
    more about that. But the more facts I added to the
    hypothetical, the more assumptions I added to it, it did not
    seem to make a difference.
        So let me start by asking two of our professors who we have
    got here, Professor Turley and Professor Rosenkranz, is that,
    in your opinion, a difficult hypothetical question, such that
    if a student in either of your classes refused to answer that
    hypothetical or said it was too hard, would that be an
    appropriate answer that you would accept in your class?
        Professor Turley. No, I would not accept it. I think that
    it is a straightforward question. I also think the question of
    whether--or, what the rule would be for the defense of Federal
    statutes yesterday was also a question that should be able--
    that someone should be able to answer.
        I also commend you, Senator, on your view of confirmation
    hearings. Too often people talk about these hearings as sort of
    job interviews where you just look at the credentials. These
    hearings have a very significant role for separation of powers.
    As agencies become more independent, this is the moment that
    Congress tends to get answers to questions--is when you are
    looking at someone who will head the agency. And as I have said
    in my academic writings, it is not often enough that Senators
    use these hearings to try to rebalance or at least get answers
    from agencies, particularly one like the Department of Justice
    that has been so difficult to get material or answers from.
        Senator Lee. I appreciate your thoughtful response to that,
    and I want to get back to that in a moment. I have just been
    informed of an error. No sooner had I taken the temporary gavel
    in this Committee hearing than I discovered that Senator
    Blumenthal was actually supposed to be next at bat. So my
    apologies for the error. We are going to push pause on my
    questioning, and as soon as Senator Blumenthal is ready, we
    will turn the floor over to him, then we will resume with me in
    a moment.
        Senator Blumenthal.
        Senator Blumenthal. I really appreciate that, Mr. Chairman,
    and----
        Senator Lee. My apologies for the error.
        Senator Blumenthal [continuing]. Like our friend Senator
    Sessions, I applaud your meteoric rise--within limits.
        [Laughter.]
        Senator Lee. Thanks for the clarification.
        Senator Blumenthal. But thank you for your courtesy and
    your deference.
        I would like to ask Professor Legomsky to expand, or
    explain a little bit, why the examples involving enforcement of
    the speed limit may not be really an exact or valid comparison
    to what we have here.
        Professor Legomsky. Thank you, Senator. I think it was a
    fair hypothetical to throw out, but I definitely feel that
    there is no simple answer, mainly because there are two pieces
    of information we would certainly need. The big thing is that
    every statutory structure is different, and so the first thing
    I would want to know is what does the State statute say? How
    much discretion does it actually give the executive branch to
    set highway safety priorities?
        In the case of the Executive actions we are comparing it
    to, for example, again, as I mentioned earlier, Congress was
    very specific. It gave the Secretary the explicit authority to
    establish national priorities and policies, and in addition
    even indicated what those policies and priorities are.
        In addition to that, the other point I would make is that
    it matters what the particular priorities are. They have to be
    rational in one way or another. I think most Americans, if
    asked, would say the President's priorities look like pretty
    much common sense to me.
        He's prioritizing national security, border security, and
    the removal of criminal offenders over the destruction of
    American families, the destruction of long-term community ties
    by people who have otherwise lived peaceful and productive
    lives in the United States. And since you cannot do everything,
    because the resources are limited, those strike me as
    reasonable priorities. I would ask the same question with
    respect to the speed limits. It has the----
        Senator Blumenthal. So maybe the comparison would be more
    like the governor of Utah deciding that on a flat straightaway
    in the middle of the State that going over the 65-mile-an-hour
    speed limit would not be enforced unless the person was doing
    something in addition dangerously, like weaving back and forth,
    but in more congested areas, that the 65 speed limit would be
    enforced rigorously.
        In other words, defining other characteristics, not just
    saying we are not enforcing this law.
        Professor Legomsky. I think that is an excellent point,
    Senator, with all respect. And that is very analogous to what
    the President has done with his recent Executive actions
    because, as you know, both the prosecutorial discretion memo
    and the recent DAPA memo draw all kinds of fine gradations. And
    that I think accommodates the point that you were just making.
        Senator Blumenthal. And just to clarify, there has been a
    suggestion that the President's exercise of discretion does not
    permit case-by-case decision-making. In other words, that it is
    a broad, across-the-board exception for all cases. But in fact,
    what the President's doing is really an exercise of delegation
    of discretion, prosecutorial discretion, for case-by-case
    decision-making. Is that a fair characterization?
        Professor Legomsky. I think that is a very fair
    characterization. I am thrilled to have the opportunity to
    answer that question, because that is something that has
    concerned me a great deal about some of the criticisms that
    have been offered.
        The Secretary's memo says not once, not twice, but over and
    over again, that officers on the ground are instructed to look
    at the facts of each individual case, to evaluate them on an
    individualized basis, and specifically to exercise their
    discretion. Not only that, but as I mentioned this morning, the
    form that the USCIS adjudicators are required to use when they
    deny a DACA case lists the possible reasons for denial and it
    specifically lists exercise of discretion.
        There was one other thing I was going to mention, and that
    is that if anybody doubts that these instructions are actually
    being obeyed, more than 32,000 denials have already occurred on
    the merits. This does not count things that are rejected at the
    lockbox for a failure to pay a fee. These are actual denials on
    the merits.
        And I must say--and I hope this does not sound snarky,
    because I really do not mean it that way--that I worked at
    USCIS for two years, and I can assure everyone in this room
    that the USCIS adjudicators are not a corps of open-borders
    advocates who are looking for ways to systematically disobey
    the Secretary's explicit instructions. They take their job
    seriously, and they do exercise the discretion the Secretary
    has told them to.
        Senator Blumenthal. I appreciate that clarification. Of
    course, I would invite any of the other panel members to
    disagree if they wish to do so. But before my time expires, I
    would just like to clarify a point that was made earlier by my
    colleague and friend, Senator Sessions.
        Loretta Lynch, I think yesterday, clarified that she does
    not believe there is a Federal right to work for immigrants who
    are not in a lawful status. I believe that the record will show
    that she did clarify that point.
        And with that, if any of the other panelists want to
    comment on the question that I raised earlier, I would invite
    you to do so.
        And thank you for your explanation, Professor.
        Professor Rosenkranz. Well, Senator, I guess I would just
    say I think the proof is going to be in the pudding. But people
    who have looked at this, at the structure of the proposed
    policy--it appears that the case-by-case discretion that is
    built into this policy may well prove to be largely illusory.
        Senator Blumenthal. And I think you have just really hit it
    on the head. You just really hit it on the head, that the proof
    will be in the pudding as to what actually is done--as it is
    for every prosecutor. As a U.S. Attorney, as a State Attorney
    General, if I had decided I was not going to enforce any law,
    rightly I would have been criticized. And the proof will be in
    the pudding. In the same way as I had to make prosecutorial
    decisions, as every former prosecutor, as a member of this
    panel--and at least one is here now--it will be in what the
    record shows.
        And we do not disagree if, in fact, the result is to make
    an across-the-board, wholesale, unexceptional rule; that would
    be wrong. If the President decides as a matter of his
    discretion that across the board this--these laws are not going
    to be enforced, I agree with you. And when you say it is
    illusory, it will be--the proof will be in the pudding.
        Professor Rosenkranz. Well, Senator, I do think we can try
    to evaluate the proposed policy just on the terms of the
    proposal, and I think there is reason for skepticism, even as
    the policy has been proposed. But you are quite right; the
    facts will develop on the ground.
        Senator Blumenthal. Thank you. Thank you, Mr. Chairman.
        Senator Lee. Thank you very much, Senator Blumenthal.
        Let us sort of pick up where we left off. I want to
    respond, first of all, to a couple of those points that I think
    are relevant.
        With respect to the straightaway in Utah, this is somewhat
    familiar to us. We have these salt flats in Utah where they
    take cars out that can go hundreds of miles an hour. I assume
    he means a straightaway on a national or State road.
        But there is a difference between deciding not to post a
    police officer there and issuing a permit saying you may exceed
    the speed limit and if you are caught going up to 75 miles an
    hour, even though that is in excess of the lawful posted speed
    limit, you will not get a ticket. There is a distinction there.
        There is, moreover, the fact that another hypothetical
    question that I brought up that I was disappointed that she did
    not agree to address head-on was one involving a hypothetical
    future President, maybe a Republican, maybe a Democrat, I do
    not know, but somebody who decides, you know what, I do not
    like our top marginal tax rates and I think it is morally wrong
    to enforce a marginal tax rate above 25 percent at the top
    marginal rate. So I am going to issue a series of letters to
    people, request them, saying you can pay at the 25 percent rate
    and no higher and nothing is going to happen to you.
        I agree, moreover, Professor Legomsky, that something more
    like the answer that you provided would have been helpful. I
    did not have even that and had she provided that answer, we
    could have then gotten into a deeper discussion about whether
    or not Congress has, in fact, done this or whether or not
    Congress did, in fact, based on analysis of the text, create
    something that could create an exception to allow many, many
    millions out of the, I do not know, 11 million or 12 million
    people who are estimated to be inside the United States
    illegally--did Congress really create something that could
    create an exception that potentially swallowed the rule or
    comes very, very close to it.
        Let us turn now to Professor Rosenkranz. You have not had a
    chance to chime in on this issue. Tell me what you think about
    my hypotheticals. What would you do if somebody in your class
    refused to answer it?
        Professor Rosenkranz. I was just going to say, Senator, I
    think your tax hypothetical is exactly right and
    indistinguishable from the current situation. I do not
    understand a principled way on which to distinguish those two
    cases.
        I would think a Republican President would be absolutely
    within his rights to cite this precedent and do as you suggest,
    if this were constitutional. I think it is not.
        Professor Turley. Senator, I should clarify that we are
    more demanding at GW than at Georgetown in terms of how our
    students answer questions.
        [Laughter.]
        Professor Turley. So you have to put that into your
    consideration.
        Senator Lee. Good. Good. I hope you make that clear on your
    applications to law school, too, about how demanding you are.
        [Laughter.]
        Senator Lee. Everybody hates, especially in their first
    year of law school, to get called upon in class. Another point
    that I think deserves to be mentioned here is that within this
    framework there has been discussion of the fact that there
    remains some discretion on the part of our immigration
    enforcement authorities in this country, even after the
    November memorandum, even after DACA and DAPA and so forth.
        It is different than the way prosecutorial discretion
    normally works. The way prosecutorial discretion normally works
    is that you say we have got finite resources, we are not going
    to prosecute everybody. We are going to sometimes not do it
    because perhaps we think the circumstances of the case do not
    trigger any kind of moral outrage and we are just not going to
    go in that direction.
        There is also just the practical reality effect. You are
    not going to be able to get everybody. But that operates as an
    exception to the normal rule that if you break the law, you can
    expect that prosecution is at least some possibility.
        Whereas here, even to the extent you can say that there
    might be some discretion to decide not to enforce the law, they
    still make clear, these presidential--these Executive decisions
    still make relatively clear that they intend, as long as these
    criteria are satisfied, to not enforce the law, that they are
    not going to enforce the law, and they do issue documents
    saying you may work.
        So I refuse to accept this as just an act of either
    ordinary garden variety prosecutorial discretion and I also
    refuse to accept as an article of faith the fact that Congress
    would have ever--would ever or did, in fact, in this
    circumstance give so much discretion to the President of the
    United States, to the Attorney General, to the Secretary of
    Homeland Security so as to create a loophole that could swallow
    a very substantial chunk of the entire rule.
        This is just not consistent with the way the Constitution
    of the United States has historically functioned.
        I am getting back to how I opened. I do think that these
    are relevant questions. Yes, they are different in kind than
    the kinds of questions that deal with someone's resume or
    someone's professional qualifications, but we are looking here
    at a very specific kind of job, someone who is taking the role
    as Attorney General of the United States.
        We have seen--we have heard testimony from several of you
    today that this is a Department that has some real serious
    problems right now, problems that really make the hair stand up
    on the back of my neck sometimes, and that was reiterated today
    with some of the testimony that I heard.
        So I walked into that hearing yesterday wanting, hoping,
    frankly expecting to really like Ms. Lynch, and I do like her,
    and she met with me in my office before the hearing and I liked
    her. I expected that I might be able to go either way on this,
    that I might well end up supporting her.
        I did not feel comfortable at the end of the day yesterday
    with the idea that I could vote for her because of the fact
    that I did not get answers to questions that I find very
    troubling. And I found it a somewhat cavalier answer, a
    somewhat cavalier response to suggest that she needed more
    facts when some of these were very basic questions.
        I see my time has expired. Do we have any Democrats here?
    Just making sure we did not have anybody in the anteroom. I am
    told that Senator Cruz is next at bat.
        Senator Cruz. Thank you, Mr. Chairman. I want to thank each
    of the members of this panel, a very distinguished panel to
    come together and address some very important issues facing
    this country.
        I want to, at the outset, extend my apology that earlier in
    the hearing, the Senator from Rhode Island characterized the
    testimony that we have heard from witnesses on this panel as
    ``conspiracy theories and sound bites for Fox News.''
        I do not think that is an accurate characterization of the
    learned testimony that this panel of witnesses has given to
    this panel and I apologize that you are subjected to having
    your character impugned in that manner by a United States
    Senator.
        I think this panel has focused on some very important
    issues, issues that need to be highlighted. I would note that
    Ms. Engelbrecht is a constituent of mine and a friend. I have
    long thought highly of your commitment to public engagement,
    your volunteer efforts to make a difference in our political
    discourse.
        I wanted to ask you, as a citizen who engaged in the
    political process, how did it make you feel to be targeted by
    the Government for persecution?
        Ms. Engelbrecht. It takes your breath away when you do not
    know quite where true north is and it begs the bigger question
    of what is this country really and where am I raising my
    children, where is their safe harbor. And that is why I think
    that this panel and these questions that we are discussing here
    today are critical. We have to understand what we have just
    come through, what we are still in, if we know where we want to
    head, and I hope we want to head in a decidedly different
    direction.
        Senator Cruz. It was some decades ago that President
    Richard Nixon attempted to use the IRS to target his political
    enemies. He did not succeed in those attempts, but he was
    nonetheless roundly decried in a bipartisan manner.
        In this instance, the attempt, sadly, bore fruit and it has
    been well over a year since the news broke.
        Let me ask you, Ms. Engelbrecht. Do you feel, in the over a
    year that has transpired, do you feel that the truth has been
    uncovered and that justice has been served?
        Ms. Engelbrecht. Oh, no, absolutely not. Just the fact
    alone that I have still not been interviewed or met with nor
    have any of the other groups that I know of that were part of
    this targeting scandal, how you can continue on under this ruse
    that that is ever going to arrive at any kind of conclusion is
    mystifying to me.
        We seem to continue to find more and more evidence and it
    continues to get further and further buried until I guess they
    hope people just forget, and that is why I keep showing up. I
    hope they do not forget.
        Senator Cruz. Yesterday I asked Ms. Lynch if she thought it
    was appropriate to have the Department of Justice investigation
    into the IRS targeting and abuse of power led by a major Obama
    donor and Democratic donor who has given over $6,000 to
    President Obama and the Democratic Party, and she said she
    found nothing objectionable about that and she flat out refused
    to appoint a special prosecutor, much as Eric Holder has
    refused to appoint a special prosecutor.
        Let me ask you, as a citizen, do you have faith in the
    impartial administration of justice with an investigation being
    led by a major Democratic donor?
        Ms. Engelbrecht. I take so much exception to that
    appointment and to the way that that division has conducted
    itself that I, quite frankly, do not even know where to begin.
        Yes, I think that there is an awful lot wrong with it and
    it is just sad that they are not held to account to explain
    their actions.
        Professor Rosenkranz. Senator, I might just mention a
    constitutional dimension of this particular scandal.
    Discriminatory enforcement would have horrified the Framers,
    and this kind of discrimination would have horrified them more
    than any other: discrimination on the basis of politics.
        The single most corrosive thing that can happen in a
    democracy is for incumbents to use the levers of power to
    stifle their adversaries and entrench themselves. It casts
    doubt on everything that follows.
        So it really would have been their deepest, deepest concern
    constitutionally.
        Senator Cruz. Thank you, Professor Rosenkranz. I certainly
    agree with that observation and I would note that
    discriminatory prosecution is often intended to have the effect
    and, in fact, has the effect of stifling further speech.
        Ms. Engelbrecht, have you heard concerns of other citizen
    activists that perhaps they should not speak out or get
    involved because they, too, might be targeted?
        Ms. Engelbrecht. Absolutely. The IRS is arguably the most
    feared agency in possibly the world and there are an awful lot
    of folks out there that just packed up their tent and stopped
    their little community organizations because they did not want
    to be a party to what they saw unfolding.
        Senator Cruz. I have to say it was disappointing yesterday
    that Ms. Lynch also expressed no concern about the First
    Amendment rights of citizens, about the effect of the IRS
    targeting citizen speech, and about the effect of both bias and
    conflict of interest and the appearance of bias and conflict of
    interest on the impartial administration of justice.
        I want to shift to a different set of issues, which is the
    pattern of lawlessness of this administration, and I want to
    focus on a line of inquiry that we had yesterday with Ms. Lynch
    concerning prosecutorial discretion. I want to address this
    question to Professor Turley.
        Let me say, Professor Turley, I commend you for having the
    courage to speak out about your concerns about the
    constitutional dimensions of the conduct of the Executive. I
    recognize that that has not been easy for you to speak out and
    I suspect you have heard more than a little grief in the
    faculty lounge for having done so.
        So let me say thank you for having the courage of your
    convictions. I wish we saw a lot more Members of this body with
    similar courage of convictions.
        Yesterday I asked Ms. Lynch if she agreed with the
    reasoning of the Office of Legal Counsel that under the theory
    of prosecutorial discretion, the administration could decline
    to enforce immigration laws against 4 million to 5 million
    people in a categorical manner and, beyond that, could
    affirmatively issue work authorizations, print documents that
    purport to authorize them to violate Federal law and work in
    direct contravention to Federal law.
        Ms. Lynch said that she found that OLC reasoning
    persuasive.
        Do you agree with that assessment?
        Professor Turley. I have serious problems with the
    reasoning for a couple of reasons of my own. First of all, much
    of what we do when we look at separation of powers is to look
    for limiting principles. We are in a system of government that
    is shared and limited in its nature.
        And part of the problem that I have with the
    administration's position on things like immigration is that it
    lacks that type of limiting principle.
        To respond to my colleague, whom I have a great deal of
    respect for, I do not see this as a matter of discretion. First
    of all, I am not too sure if it really does mean what my friend
    said, why they bothered even saying it, because that would make
    it just a standard prosecutorial discretion of people who are
    boots on the ground. I do not know why you would even issue
    this if it meant what my friend has said.
        But, second, if you look at that letter from immigration
    faculty, as I did, once again, it raised this issue--what is
    the limiting principle? The letter seemed to suggest that as
    long as you are deporting one person, everything before that
    point is a matter of discretion. I cannot believe that could
    possibly be true.
        If that were true, then virtually any law could be shut
    down except for one case and you could claim you are just
    exercising discretion.
        I do criminal defense work when I am not teaching and I
    think if I went to a prosecutor and said, look, I would like
    you to basically give my guy a walk because this whole category
    that he is a member of really should not be subject to this
    type of enforcement, I think most would look at me like I had
    two heads. They certainly would not give me much help on that.
        There is a legitimate question of prosecutorial discretion,
    but this is not one that I recognize. But my concern really, as
    a constitutional scholar, is if this is prosecutorial
    discretion, I do not know what would not be prosecutorial
    discretion.
        And this notion that is developed from prosecutors, is not,
    obviously, in the Constitution, would swallow the obligations
    of the President. Any discretion that my friend talked about in
    terms of setting policies and priorities has to be defined
    within the context given to the administration by Congress.
        Senator Cruz. Professor Turley, I very much agree. And my
    time is expiring, but I want to ask one final question, which
    is I agree with you that the question is where do you draw the
    line.
        If the President can, through discretion, simply refuse to
    enforce a major portion of immigration laws as it concerns
    millions of individuals, what other laws can the President
    unilaterally refuse to enforce?
        And yesterday I asked Ms. Lynch about a couple of examples.
    Number one, could a subsequent President instruct the Secretary
    of the Treasury: ``Do not collect taxes in excess of 25
    percent''; and, number two, I asked could a subsequent
    President instruct the Department of Labor: ``You shall not
    enforce any of the Federal labor laws on the books against the
    State of Texas; the State of Texas is hereby immune from every
    Federal labor law that has ever been passed.''
        To both of those hypotheticals, Ms. Lynch refused to
    answer, refused to say what I think is the obvious
    constitutional answer, which is, of course, a President cannot
    do that.
        So the question I want to ask Professor Turley and I want
    to give an opportunity for everyone on this panel, anyone on
    this panel who wants to engage: Does anyone on this panel
    disagree that it would be unconstitutional for the President to
    refuse to enforce the tax laws or the labor laws or the
    environmental laws? And if you think that would be
    unconstitutional, does that not necessarily lead one to the
    conclusion that the President's Executive amnesty is likewise
    unconstitutional?
        Professor Turley, we will start with you.
        Professor Turley. I believe those examples would be
    unconstitutional if the President claimed that authority.
        Professor Legomsky. I actually agree with both Senator Cruz
    and Senator Lee that there is a difference between saying we
    simply will refrain from prosecuting and saying we will give
    you deferred action and a work permit.
        But on the specific question that you have asked just now,
    I do think that a decision to not enforce the entire
    immigration laws or not enforce the entire tax laws would
    clearly exceed the President's legal authority.
        But that is not even close to what we have here. As I
    mentioned a moment ago, even after these new policies are fully
    operational, there will still remain in this country at least--
    and this is a conservative estimate-- 6 million to 7 million
    undocumented immigrants to whom these policies do not apply,
    and the President still will have only enough resources to go
    after fewer than 400,000 of them, which means that nothing in
    these policies will prevent the President from continuing to
    enforce the law to the full extent that the resources that
    Congress provided him will allow.
        Senator Cruz. Let me briefly ask a clarification on your
    example. The reason you said the Executive amnesty is
    constitutional is because there exists some substantial subset
    of people against whom the laws are enforced. Well, let us take
    the labor law example. If Texas were exempted, there would be
    49 States, a whole bunch of people you could enforce the labor
    laws against. So would that satisfy the test you have just put
    forth?
        Professor Legomsky. If I understood the hypothetical
    correctly----
        Senator Cruz. Hang on one second. In the interest of time,
    after he answers this one, we are going to have to turn to
    Senator Franken. We have got votes coming up, so we have got to
    keep moving. Thank you.
        Professor Legomsky. I just wanted to make sure I understood
    the hypothetical correctly. And your hypothetical is the
    President enforcing the law in one State, but not in the other
    States or vice versa.
        One of the limitations I think is that the particular
    priorities have to be rational. I think the discrimination
    against the residents of one State would fail that test.
        Along similar lines, my friend, Mr. Turley, says that the
    law professor's letter was making the claim that as long as
    even one person is deported, then it is okay. There was no such
    claim in the letter, which I know very well.
        There was certainly no implication in the letter that all
    you would have to do is deport one. The point the letter makes
    is that the President is fully spending all the enforcement
    resources that Congress has provided. The President is not a
    magician. He cannot spend resources he does not have, and that
    is why that example is very different from the ones that have
    been hypothesized.
        Senator Cruz. Thank you very much.
        Mr. Franken.
        Senator Franken. Thank you. I want to thank all the
    witnesses for being here today and for your testimony and your
    patience.
        I just want to talk to some of you who know Ms. Lynch. Mr.
    Barlow, thank you for your service to the Justice Department
    and for coming here today to speak on behalf of Ms. Lynch.
        As you know, the Attorney General must be both an excellent
    leader and an open-minded collaborator. The Attorney General
    must develop and coordinate policies among the various
    components of the Justice Department with other agencies.
        Based on your experience serving with Ms. Lynch on the
    Attorney General's Advisory Committee, how would you
    characterize her leadership style?
        Mr. Barlow. She is a leader among leaders, Senator. I would
    describe her style as being inclusive, thoughtful, careful,
    deliberative, and she is someone who is seeking consensus
    wherever it may be found.
        I have also seen her recognize that occasionally the
    consensus cannot be reached and, when it could not be reached,
    making sure that there was space for dissent so that all parts
    of the issue could be fully examined.
        Senator Franken. Thank you.
        Ms. Fedarcyk, thank you for your service to the FBI and for
    being here today. You served with the FBI's New York office for
    25 years and have worked with many U.S. Attorneys. In your
    testimony, you noted a wide range of cases that you worked on
    with Ms. Lynch and the window that this gave you into her legal
    acumen, her leadership style, her character.
        How would you rate Ms. Lynch's performance as U.S. Attorney
    and could you elaborate on the skills that you have observed
    that would speak to her ability to serve in the role of
    Attorney General?
        Ms. Fedarcyk. Thank you, Senator. And just by way of
    clarification, I was in New York for 2 years before I retired
    and during those 2 years had the opportunity to work with
    Loretta in her capacity as the United States Attorney.
        Senator Franken. Oh, sorry.
        Ms. Fedarcyk. We undertook any range of significant and
    complex investigations ranging from national security through
    the complex financial frauds, all the way through the panoply
    of the criminal violations that include violent gangs and other
    types of violent offenders.
        I had a very close opportunity to observe Loretta during
    the course of these investigations, but also beyond the conduct
    of making decisions about cases and timelines for take downs
    and the operational considerations, although those were
    extraordinarily important, clearly, because the symbiotic
    relationship is such that the New York office and, I would
    argue, the FBI writ large cannot do its job without that kind
    of symbiotic relationship with the U.S. Attorneys.
        So my observation of Loretta in that role was that she led
    from the front. She instilled qualities within her office, gave
    them the resources, the opportunities to take on and grow
    themselves as leaders within the office. But she was not afraid
    to become intimately involved because she wanted to know what
    was going on with the cases and not to micromanage.
        And I think that is one quality of a true leader, to
    empower her people to do a great job by backing off a little
    bit, but still staying involved with the cases and knowing what
    is going on within her office.
        I think one of the other characteristics that I noticed
    that I do not think I see a lot in executives is her ability to
    understand vertical organization, but at the same time develop
    horizontal relationships, particularly within the community.
        So in a very structured environment, she was very
    comfortable whether she was talking with an executive or all
    the way down to, let us say, a brick agent or a line police
    officer; the ability to talk to individuals, make them feel
    immediately at ease, make them feel that they are actually
    contributing and that she is listening to what she is talking
    about and what they are talking about.
        Likewise, when we talk about the horizontal view across a
    community, she was very engaged with not just the law
    enforcement community from local, State, Tribal, Federal, but
    also the communities that we were serving. And, again, that
    leadership of leading her office to understand the concerns of
    these communities was integral to supporting the successes of
    the offices.
        So I think she brings a lot of----
        Senator Franken. Let me ask you about that, because that is
    about community engagement. So let me ask you about that style.
    I think that is very important with the U.S. Attorney. I see
    how important it is in Minnesota.
        What was her style of engagement in terms of the community?
        Ms. Fedarcyk. Very engaged and someone who was not afraid
    to engage many different community groups and have very frank
    discussions about concerns and issues, giving everybody an
    opportunity to provide input, and that I think is incredibly
    important because understanding the community you serve is part
    and parcel of representing the system of justice and making
    sure that if there are disparities in those communities, if
    there are issues in those communities, that you understand what
    they are so that you can help drive a change to make the system
    of justice better in addressing those concerns.
        With respect to the law enforcement community, she was
    actively involved in many of the task forces, very supportive
    of them as a concept that brought departments and agencies,
    large and small, together to tackle entrenched crime issues,
    terrorism, and would personally attend executive briefings.
        And her philosophy was that we were all in this together,
    that it was incumbent on law enforcement across the board to
    work shoulder-to-shoulder to really protect this country and to
    tackle issues that no one agency could do by themselves.
        So I personally thought that her leadership skills were
    outstanding. I viewed her as somebody that I could go to for
    sound judgment, as a sounding board, and receive sage and
    reasoned advice in return.
        Senator Franken. Reverend Newsome, I am getting the picture
    of a very impressive leader with those kinds of impressive
    skills. But you came to testify today I think on where that
    comes from in a moral sense.
        Can you speak to where that comes from in terms of her
    compassion and----
        Reverend Newsome. Well, I think I can, Senator. Thank you,
    Senator, for the opportunity. Let me try to be as succinct
    about this as I possibly can.
        Senator Sessions, glad to be reunited with you. We worked
    on a church-burning project some years ago when I was Dean of
    the Howard School of Divinity, very effectively. Thank you.
        But the word impressive does not get it. She is a rare
    individual. I study people from the standpoint of a religious
    biographical perspective. So that when you begin to look at
    what I might call at this point in time the genius of
    character, you try to sense if it has come down through the
    generations.
        I mentioned in my written statement that her grandfather
    was a Baptist minister, but three grandfathers before then, and
    they served their congregations and their communities with
    daring, with distinction, and, above all, wisdom, and that
    wisdom was borne of a depth of insight into human nature as to
    how leaders should best behave and be effective in garnering
    the following, and leading in a way that works for the good of
    all.
        Loretta, and I have seen this throughout the years, is the
    kind of person who can relate transparently enough to inspire
    trust and confidence. So that you do not have to work a long
    time wondering if what you are seeing is truly honest.
        And this plays its way out in the sense that she is a due-
    diligence kind of person. I understand the hypothetical kinds
    of issues and questions, but my own background as a scholar
    would say, well, at best, a hypothetical only approximates a
    real-life situation and in a real-life situation, character
    really comes forth when you do the kind of due diligence that
    puts you in a position to make the quality of judgments that
    makes for a positive difference.
        This is in her bloodline. This is in her spiritual DNA. I
    do not know if her father is still in the room, but I can tell
    you that it has played out in the way that he has provided
    leadership in North Carolina. Whether he had to stand alone or
    stand with 1,000, it was the truth, the truth, the right thing
    and the right thing, and character and character and character
    over again.
        I do not want to trivialize this process by using a sports
    metaphor, but I am an old broken-down football player that
    played at Duke when we were still winning games.
        Senator Franken. That was quite a while ago.
        [Laughter.]
        Reverend Newsome. Quite a while ago. But we tend to think
    in terms of a franchise kind of player. She is an exceptional
    human being and I cannot avoid the sense of passion I feel
    right now for the good that would come to our Nation in having
    a person who would be good, absolutely superb, and even healing
    our Nation through the responsible discharge of her duties as
    the U.S. Attorney General.
        Senator Franken. So you would be for her being confirmed.
        [Laughter.]
        Reverend Newsome. I will be mildly for her, yes.
        Senator Franken. Although you cheapened it with a sports
    metaphor, it was powerful testimony.
        [Laughter.]
        Senator Franken. Thank you. Thank you, Mr. Chairman.
        Senator Cruz. Thank you, Senator Franken.
        Senator Sessions.
        Senator Sessions. Thank you for calling for us. A lot of
    people we have disagreements with can be wonderful people and I
    do sense that about her and I told her that--well, I was
    talking about her, I believe--but she was raised right, I can
    tell that.
        So sometimes you just get caught up in things. Issues
    become big and an individual becomes a focus of the
    controversy.
        Sheriff Clarke, thank you for your leadership. Now, I had
    here right in front of me--and I have it now--a piece put out
    just some time ago saying that there were 36,000 convicted
    criminal aliens in detention that were released and that group
    of people convicted were convicted of crimes such as homicide,
    sexual assault, kidnaping, and aggravated assault.
        And I notice one individual was just arrested for murdering
    a 21-year-old convenience store clerk in Mesa, Arizona, on
    January 22nd of this year after having been in ICE custody on a
    drug and gang-related felony burglary conviction, but was
    released on bond after a few days.
        If you release 36,000 people who have been convicted of
    crimes, based on your experience in law enforcement, can't we
    expect that that group is likely to commit the kind of crimes I
    just mentioned? Isn't that pretty predictable?
        Sheriff Clarke. Thank you, Senator. Yes, if for no other
    reason because of the recidivist nature of crime regardless of
    what demographic is involved with it. I would say releasing
    3,600 into communities that do not have the support structures
    is, at best, dangerous policy.
        Like I said, they do not have the support structures in
    place. And then the thing about the--when we start talking
    about the criminal aliens, the first thing they are going to do
    is flee. That is the first thing they are going to do.
        My experience in working with ICE--we do not enforce
    immigration law, but we do cooperate with Federal agencies in
    the pursuit of justice like we do any other Federal agency. But
    they come with many aliases, difficult and it takes a long time
    to identify them, but they realize, the individual that is
    released on bail, they realize that it is in their best
    interest to flee. And then they turn up in another community--I
    will just speak to Milwaukee County.
        We have had those same horror-type stories of individuals
    who have been brought to ICE's attention and, for whatever
    reason, they decided not to put a detainer on them or had a
    detainer and released it; the individual is let out on bail and
    then goes on to engage in an even more heinous act.
        And, sure, the easy ones, Senator, are the ones who are
    involved with murder, sexual assault. Those folks are probably
    not going to get out on bail. We do not have to worry too much
    about them.
        Senator Sessions. Well, as this report indicated, a number
    of them, like 193 of the 36,000 that were released included--
    were homicide convictions. So you are right to assume that
    serious crimes--it would be almost unbelievable that they were
    being released, but data shows that a lot of them are the most
    serious crimes--are being released.
        Sheriff Clarke. Yes. I think sometimes some of the reports
    or some of the rhetoric used in a discussion is on the lenient
    side. They call them low-level offenders, but some of the stuff
    that I see that they have been involved with are not literally
    low-level offenders.
        Senator Sessions. Well, Sheriff Clarke, let me just say you
    are responsible for protection of people in Milwaukee and that
    area and the Federal statute says someone convicted of a
    serious felony shall be deported. It does not say that ICE has
    an opinion about this, it says they shall be deported. Does it
    make your life more difficult, does it place the people of
    Milwaukee at greater risk if the officials are not following
    the law and deporting people who have been convicted of serious
    crimes?
        Sheriff Clarke. Sure it does. In my limited knowledge of
    legal language, ``shall'' is not discretionary. So I find that
    problematic when that happens.
        Senator Sessions. So do you not think it is common sense
    and just that if a person's in the country illegally and on top
    of that they commit a serious crime, they should be deported?
        Sheriff Clarke. Yes. I think it is beyond common sense. I
    think we have a duty, a duty to protect people.
        Senator Sessions. And the law, of course, requires that. It
    is just too often not being followed in an effective way.
        Professor Legomsky. Senator, may I just add that I think--
    --
        Senator Sessions. Yes.
        Professor Legomsky. Sheriff Clarke has just made one of the
    strongest arguments in favor of the President's Executive
    actions. The main point of the new prosecutorial priorities is
    to be able to focus resources on precisely the individuals whom
    he is describing, and hopefully it will have that effect.
        I do not know in this case why the State authorities
    released a person. If it was while the person was pending
    trial, they must have thought that it is safe to release them.
    So I am not sure why the onus is shifting to ICE, but that
    aside, this is what the administration is trying to accomplish.
        Senator Sessions. Well, this is not a matter of discretion,
    Mr. Legomsky. I know you served with the USCIS. This part of it
    is mandatory, the point I am raising. We are entering into an
    utterly lawless system here. Nothing Congress passes,
    apparently, has the ability to be effectuated in reality. That
    is the problem.
        Congress will pass things and they do not happen. We
    mandated a fence, 700 miles. It has not happened. We said there
    should be an exit/entry visa, which the 9/11 Commission has
    hammered us for not completing as law required, and it still
    has not been completed.
        Are you aware that the group that you worked with, the
    Federation of Government Employees, who represent USCIS, has
    opposed this bill vigorously?
        Professor Legomsky. Yes.
        Senator Sessions. And say it will not work and is not
    helpful.
        Professor Legomsky. Well, this is the very same group whom
    some people are suggesting will refuse to obey the Secretary's
    instruction to exercise discretion and will instead rubberstamp
    these cases. So I think----
        Senator Sessions. Well, let me ask you about discretion.
    That is Professor Eastman. In his testimony before the House on
    discretion, he says there is nothing in the memo to suggest
    that immigration officials can do anything other than grant
    deferred action to those meeting the defined eligibility
    criteria.
        Indeed, the overpowering tone of the memo is one of woe to
    line immigration officers who do not act as the memo tells them
    they should, a point that has been admitted by the Department
    of Homeland Security officials in testimony before the House.
        In the House, Chairman Goodlatte of the House Judiciary
    Committee, said, ``DHS has admitted to the Judiciary Committee
    if an alien applies and meets the DACA eligibility criteria,
    they will receive deferred action. In reality, the immigration
    officials do not have discretion to deny DACA applications if
    the applicants meet these criteria.'' I think, Professor
    Rosenkranz, you indicated it might be an illusory thing here.
    Isn't that proof that really it is illusory discretion? In
    fact, it is mandatory.
        Professor Rosenkranz. Absolutely.
        Professor Legomsky. Well, the memo says precisely the
    opposite, Senator, with respect. It says that these are cases
    that ``present no other factors that, in the exercise of
    discretion, make the grant of deferred action inappropriate.''
    At the very end there is even more explicit wording: ``the
    ultimate judgment as to whether an immigrant is granted
    deferred action will be determined on a case-by-case basis.''
    So the memo refers explicitly to discretion.
        Professor Rosenkranz. Senator----
        Senator Sessions. Well, we said we are going to do an exit/
    entry visa and it is not. The truth is that officials are going
    to approve the people if it meets the DACA--meets the
    memorandum standards.
        Professor Rosenkranz. The important thing to notice is that
    it flips the presumption, right? The presumption is that the
    law will not be enforced and somebody might have discretion to
    enforce the law in a particular case, but this is turning
    prosecutorial discretion on its head. The presumption in
    general is that law will be enforced and discretion will be
    used to create an exception to the rule. Here, the enforcement
    is clearly going to be the exception to the rule, if it happens
    at all.
        Professor Legomsky. Except that the entire deferred action
    memo is the exception, right? The norm is that you do get
    deported if you fall within one of the deportability grounds.
    This memo lays out an exception: If you meet the following
    criteria, then USCIS officials would have the discretion, on a
    case-by-case basis, to defer your----
        Senator Sessions. Well, just briefly, if the people do not
    meet the standards and somebody does get turned down--well, the
    projection is a little less than half the people, 5 million out
    of 11. What if somebody is turned down, are they going to be
    deported?
        Professor Legomsky. Generally, I would think, yes. If they
    bring their presence to the attention of the enforcement
    authorities and if it fits within the prosecutorial discretion
    priorities, then I cannot think of any reason that ICE would
    not----
        Senator Sessions. Well, they are not going to be deported.
    The only ones that are being deported today is, as I think you
    know, people who commit serious crimes, and we find out even
    they are not being deported. We have reached a lawless stage in
    immigration and the American people are not happy about it.
    They have a right to demand that their laws be enforced and the
    President's actions are some of the most dramatic steps to
    violate plain law that I have ever seen in my experience.
        Thank you, Mr. Chairman. My time is over. You are kind.
        Senator Lee. Thank you, Senator Sessions.
        As we were preparing for yesterday's hearing, I found a
    quote that I would like to talk about in a minute for a moment,
    a quote from a speech given by Ms. Lynch about a year ago in
    which she made the following statement. It caught my attention
    because it raises some alarm bells.
        It says: ``Fifty years after the March on Washington, 50
    years after the civil rights movement, we stand in this country
    at a time when we see people trying to take back so much of
    what Dr. King fought for. We stand in this country. People try
    and take over the Statehouse and reverse the goals that have
    been made in voting in this country. But I'm proud to tell you
    that the Department of Justice has looked at these laws and
    looked at what's happening in the Deep South, and in my home
    state of North Carolina, has brought lawsuits against those
    voting rights changes that seek to limit our ability to stand
    up and exercise our rights as citizens.''
        When I read this, for obvious reasons, I immediately became
    concerned. I was wondering what it was that she was talking
    about, what laws there were out there, what legacy of the civil
    rights era that was trying to be overturned. Ms. Engelbrecht,
    can you guess as to what she might have been talking about
    referring specifically to her home State of North Carolina?
        Ms. Engelbrecht. I cannot. And I reviewed the same comments
    that you referred to, which was, I think, taken from a speech
    in February out in Los Angeles. What continues to boggle the
    mind is that the vast majority of Americans want, understand,
    and appreciate the need to try to safeguard our elections. The
    thought that asking a voter to prove they are who they say they
    are is somehow discriminatory just--you know, it seems to me to
    be much more about pushing a political agenda than protecting
    the people.
        Senator Lee. You know, I wondered about this so I asked one
    of my colleagues who was on this Committee with me, Senator
    Thom Tillis from North Carolina, who as it turns out at the
    time she gave this speech was the Speaker of the House in North
    Carolina.
        I asked him what this was about, what she was referring to.
    These are pretty bold statements and if someone is going to
    accuse a State legislative body of moving to undo the legacy of
    Dr. Martin Luther King, of trying deliberately to diminish
    voting rights in this country, I feel like we need to know what
    that is.
        He suggested to me that it might have been directed toward
    a voter ID law that was passed by the State of North Carolina
    at the time that Senator Tillis was the Speaker of the North
    Carolina House of Representatives. I asked him about this law a
    little bit and he told me that when it came forward there was
    concern about voter fraud, about the risk of voter fraud in
    North Carolina.
        He said, look, I want to find the most fair statute that
    there is on the books anywhere in this country and I want to
    make it that much fairer. I want to put the belt and the
    suspenders, and another belt and another set of suspenders, on
    it to make sure that no one's voting rights are diminished at
    all.
        So they started with the model of an Indiana statute, a
    model that was itself quite cautious. It continues to allow no-
    excuse absentee voting without an ID, it accommodates
    individuals with religious objections to photography, providing
    them with a way, an alternative means, of proving their
    identity, pays for an ID issued by the Department of Motor
    Vehicles without any charge to the voter.
        So they started with that as the model and then they added
    a whole bunch of additional protections that neither Indiana,
    nor any other State that has adopted any law like this; it had
    a two-year ramp-up period, a special North Carolina program
    designed to allow home-bound individuals to get a photo ID,
    another Government program that not only pays for the
    Government-issued ID, but also allows for documents for a
    register of deeds or the Department of Health and Human
    Services that can be used to verify ID. It establishes a
    million-dollar trust fund to reach out to those people who
    might not have IDs, and this list goes on and on and on. This
    is the most cautious, carefully protective statutory scheme
    that I can imagine in this area.
        If in fact this was the target of this description, do you
    think it is fair to describe this legislation that way, as an
    attempt to undo the gains of the civil rights movement and the
    gains of Martin Luther King and those who fought with him
    valiantly to protect voter rights in America?
        Ms. Engelbrecht. Absolutely not. I do not think that it is
    appropriate or fair, and if that is truly the belief that is
    held, we need to understand what is behind that because it
    belies anything that you have just read in making sense.
        Senator Lee. With your involvement in efforts to prevent
    voter fraud, what would you say to those who have made the
    argument that there is no such thing as voter fraud and
    therefore we need not be concerned about it, and that the only
    reason somebody could push for it would be because they
    subjectively want to undermine voting rights? What would you
    response to that be?
        Ms. Engelbrecht. I mean, I think that our history is
    replete with examples of voter fraud and I think that it is
    something that we should take very seriously because you do not
    need a whole lot of fraud. You just need a little bit in the
    right places. And the less that you create a system that
    secures everyone's vote, the more open it is, obviously, to
    these kinds of manipulations that just further divide our
    country in ways that serve no purpose.
        Senator Lee. Thank you.
        Sheriff Clarke, I wanted to talk to you a minute about the
    relationship between the Department of Justice and law
    enforcement right now. How would you describe the relationship
    between law enforcement and the Department of Justice?
        Sheriff Clarke. Thank you, Senator. Frayed. I am not going
    to engage in hyperbole or exaggerate, but we cannot have even a
    frayed relationship. The mission statement that I cited early
    on, you know, talks about partnerships and, just from the
    Milwaukee experience, anyway, we need the help of the U.S.
    Attorneys' Office in the Eastern District of Wisconsin to deal
    with instances of the violent crime, the repeat offender.
        We are not talking about the first-time offender, we are
    not talking about people who may deserve some sort of remedy
    for some transgression they made. I talked about the 10-year-
    old, Sierra Guyton. Both of those individuals, felons,
    convicted felons. The prohibition of not being able to be
    armed--or a firearm anyway--as a convicted felon, means nothing
    to them.
        The State has not shown a willingness at the State level. I
    think it is a legitimate question to ask, What are they doing
    at the State level with some of these cases? Too much leniency.
    I will tell you one thing from a deterrent standpoint, Senator:
    Criminals fear the Federal system; they just do.
        So if we were to have, for instance, cases of--it was very
    creative legally, a case in Milwaukee where the--Jim Santelle,
    the Assistant U.S. Attorney, who we do have a great
    relationship with, used the Hobbs Act to charge career hold-up
    men who have gone on a robbery spree. One of them I believe
    recently received a 15-year sentence. Plus, they used a firearm
    in the commission of those crimes.
        But they do not have to charge all of them. I know they do
    not have--I heard about the prosecutorial discretion. But I
    think if we take this elephant and try to eat it one spoonful
    at a time--the elephant being violent crime that is ravaging
    all kinds of urban centers in America--but if we take the worst
    offenders and subject them to Federal sanctions, that is going
    to first of all ensure--get a better chance at a conviction and
    you have got a better chance at a more lengthy sentence for the
    person who just has not cared, if you will, about any State
    sanctions that have been applied.
        So that is the sort of help we need from the Federal
    prosecutor's office in Milwaukee. Straw purchases is another
    one. I will not really rap the U.S. Attorney's Office for straw
    purchases, but law enforcement is really not bringing in the
    cases. The ones they are, they are dealing with very well. But
    the armed violent offender is the one I would like to see go
    the Federal route.
        Senator Lee. Thank you.
        Today we have heard from a number of witnesses who have
    testified as to Ms. Lynch's qualifications, which are
    themselves impressive. It is great in particular to see my
    friend David Barlow. I know of no finer lawyer or human being
    any more than David, so it is always great to see you. Each of
    you have put a lot of thought into your testimonies. I
    appreciate both your written testimonies and what you have
    spoken to us today.
        The record for this hearing will remain open for one week
    for Members to submit written questions for the record.
        The hearing will be adjourned. Thank you.
        [Whereupon, at 3:04 p.m., the hearing was adjourned.]
        [Additional material submitted for the record for Day 1 and
    for Day 2 follows.]

                                A P P E N D I X

                  Additional Material Submitted for the Record

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                   Prepared Statement of Ms. Sharyl Attkisson

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               Prepared Statement of Rev. Dr. Clarence G. Newsome

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                     Additional Submissions for the Record

    A list of material and links can be found below for Submissions for the
                                     Record
     not printed due to voluminous nature, previously printed by an agency
                                     of the
       Federal Government, or other criteria determined by the Committee:

        Attorney General's Advisory Committee, December 19, 2014, working
    draft
         agenda--redacted,
         Part 1:
            https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
             2014)_Part1.pdf
         Part 2:
            https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
             2014)_Part2.pdf
         Part 3:
            https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
             2014)_Part3.pdf
         Part 4:
            https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
             2014)_Part4.pdf
         Part 5:
            https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
             2014)_Part5.pdf

        Legal and Administrative Management Evaluation, United States
    Attorney's
         Office, Eastern District of New York, January 23, 2015, draft
    report--
         redacted:
            https://www.judiciary.senate.gov/imo/media/doc/EARS_Redacted
             %20FINAL.pdf