[Senate Hearing 115-360]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 115-360

                     NOMINATION OF JOHN M. MITNICK

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

                                HEARING

                               BEFORE THE 

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS


                             FIRST SESSION

                               __________

NOMINATION OF JOHN M. MITNICK TO BE GENERAL COUNSEL, U.S. DEPARTMENT OF 
                           HOMELAND SECURITY

                               __________

                            OCTOBER 3, 2017

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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming             GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota            MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana                KAMALA D. HARRIS, California

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
               Margaret E. Daum, Minority Staff Director
               Donald K. Sherman, Minority Senior Counsel
                     Laura W. Kilbride, Chief Clerk
                   Bonni E. Dinerstein, Hearing Clerk

                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Lankford.............................................     1
    Senator Peters...............................................     2
    Senator Tester...............................................     5
    Senator Hassan...............................................    12
    Senator Harris...............................................    14

                               WITNESSES
                        Tuesday, October 3, 2017

John M. Mitnick to be General Counsel, U.S. Department of 
  Homeland Security
    Testimony....................................................     3
    Prepared statement...........................................    21
    Biographical and financial information.......................    23
    Letter from the Office of Government Ethics..................    39
    Responses to pre-hearing questions...........................    44
    Responses to post-hearing questions..........................    62
    Letter of support............................................    66

 
                     NOMINATION OF JOHN M. MITNICK

                              ----------                              


                        TUESDAY, OCTOBER 3, 2017

                                     U.S. Senate,  
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:35 a.m., in 
room SD-342, Dirksen Senate Office Building, Hon. James 
Lankford, presiding.
    Present: Senators Lankford, Daines, McCaskill, Tester, 
Peters, Hassan, and Harris.
    Senator Lankford. Good morning. Today we will consider the 
nomination of John Mitnick to be the General Counsel (GC) of 
the U.S. Department of Homeland Security (DHS).
    Before we begin, especially since this is a hearing related 
to homeland security and the issues here, I would like for us 
to be able to start with a moment of silence in recognition and 
memory of those lives that were lost in Las Vegas and those 
that are still struggling in the hospital to recover, the first 
responders, and other individuals. So let us have a moment of 
silence.
    [Moment of silence.]

             OPENING STATEMENT OF SENATOR LANKFORD

    Senator Lankford. Thanks. Mr. Mitnick has had an impressive 
career, both the public and private sector, which I believe has 
prepared him well for the role which he has been nominated.
    The Committee takes these nominations very seriously. We 
are pleased to have a strong nominee in front of us.
    Mr. Mitnick is currently the Senior Vice President and 
General Counsel and Secretary of the Heritage Foundation. 
Previously, he served as Vice President and General Counsel of 
the Raytheon Company's Technical Services. Mr. Mitnick has 
spent considerable time in public service as well, first served 
at the Department of Justice (DOJ). Later, he served in the 
Department of Homeland Security during its inception in 2002 
and 2003 and then advanced to become an Associate General 
Counsel for DHS. He also served as an Associate Counsel to 
President George W. Bush from 2004 to 2007. He holds bachelor 
degrees from Emory University and Oxford University and a juris 
doctorate from the University of Virginia School of Law.
    The staff interviewed Mr. Mitnick on an array of issues, 
and he has thoughtfully and competently answered each question.
    The Committee is confident Mr. Mitnick is qualified to be 
the General Counsel of the Department of Homeland Security.
    I now recognize the Ranking Member, Mr. Peters, for his 
opening statement.

              OPENING STATEMENT OF SENATOR PETERS

    Senator Peters. Well, thank you, Chairman Lankford, and 
thank you, Mr. Mitnick, for your willingness to serve. And I 
know you have members of your family here that I am sure you 
will introduce at the beginning of your testimony, and I am 
certainly very pleased and glad that they are here with you 
today.
    Mr. Mitnick, you have been nominated for a position that 
can influence the actions of the Secretary and everyone at the 
Department of Homeland Security, and during this nomination 
process, it is my hope that you will convey the values and 
judgment required to support the DHS mission.
    First and foremost in DHS's mission is to safeguard the 
American people, our homeland, and our values, and this is a 
critical juncture for the DHS, as threats to our national 
security abound from both international and domestic terrorism. 
And our hearts certainly go out to all those affected in the 
Las Vegas shooting this week, and our thanks go out to all of 
the first responders who are providing assistance to those 
victims.
    Millions of Americans have also been affected by the wrath 
of Mother Nature as multiple hurricanes battered several 
Southern States and island territories off the coast of Florida 
in September. Citizens in those areas, particularly in Puerto 
Rico and its neighboring islands, are in dire need of 
assistance, and with many lacking access to potable water and 
food, let alone electricity, these citizens depend on DHS for 
survival for their lives.
    Still others in our country face a threat of being deported 
from the only country that they know. Of course, I am referring 
to the Dreamers who came to the United States as children and 
by no choice of their own.
    If confirmed, Mr. Mitnick, you will be in a position to 
influence DHS response to these threats and the needs of 
American citizens. I found it comforting that you mention in 
your statement your support of your family that is here with 
you today, and I trust that you will see the people in need 
across the country as a collection of families very similar to 
your own as you work tirelessly to protect them and to provide 
for them.
    I will be asking you a series of questions today designed 
to collect a greater understanding of your values and fit for 
this very important job, and as the Ranking Member of the 
Federal Spending Oversight and Emergency Management 
Subcommittee, I look forward to hearing your plans for working 
with Congress in the oversight capacity.
    You and I both have an interest in serving the public, and 
it will be important that we respect one another's roles in 
doing so.
    I further hope to get a sense of your willingness to 
scrutinize Executive Orders (EO) relative to DHS work and 
mission. The General Counsel will often find themselves as the 
line of defense for the civil liberties that our communities 
rely on, and it is an imperative that the individual in that 
role is prepared to protect our Constitution and the people of 
the United States without bias for a particular political 
party.
    Thank you in advance for your time and candor today, and 
should you be confirmed, I look forward to working with you in 
protecting our great nation.
    Thank you.
    Senator Lankford. It is the custom of this Committee to 
swear in all witnesses that appear before them, so if you would 
please stand and raise your right hand.
    Do you swear the testimony you are about to give before 
this Committee will be the truth, the whole truth, and nothing 
but the truth, so help you, God?
    Mr. Mitnick. I do.
    Senator Lankford. Thank you. You may be seated.
    Let the record reflect the witness answered in the 
affirmative.
    Mr. Mitnick, we would be glad to be able to receive your 
opening statement. If you would please also introduce your 
family, and let us get to know them a little bit better and 
then glad to be able to hear about your statement.

   TESTIMONY OF JOHN M. MITNICK,\1\ NOMINATED TO BE GENERAL 
         COUNSEL, U.S. DEPARTMENT OF HOMELAND SECURITY

    Mr. Mitnick. Thank you, Senator.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Mitnick appears in the Appendix 
on page 21.
---------------------------------------------------------------------------
    Chairman Lankford, Ranking Member Peters, and distinguished 
Members of the Committee, it is an honor for me to appear 
before you today as the President's nominee to be the General 
Counsel of the Department of Homeland Security.
    I am grateful to the President and Acting Secretary Elaine 
Duke for the trust and confidence they have placed in me, and I 
thank the Committee and its staff for moving forward 
expeditiously on my nomination.
    I would also like to recognize and thank the members of my 
family who are here today. My wonderful daughter Hadley, who is 
taking a few hours off from kindergarten this morning, is 
sitting behind me. Hadley is the light of my life, and I feel 
very fortunate that she can share this event with me and see 
how our government functions. She should have quite a story to 
share with her classmates and teachers when she returns to 
school this afternoon.
    I am grateful to my mother, Dr. Barbara Mitnick, who is 
also here. She instilled in me a love of learning early on 
when, after graduating from Cornell University and having 
children, she resumed her education, ultimately earning a 
master's degree and a doctorate in the history of American art 
and architecture. She went on to a distinguished career in 
scholarship, teaching, and public service, which continues to 
this day. She will undoubtedly give us a memorable tour of the 
Capitol after this hearing.
    I regret that my father, Howard Mitnick, cannot be here 
today. He passed away suddenly in March 2012, and I miss his 
love and wise counsel every day. He was a lawyer's lawyer, an 
astute lifelong student of business, economics, and public 
policy, and a true patriot, and I know that this would have 
been a proud day for him. I carry his memory with me in 
everything that I do.
    At this time, I also want to remember my grandparents, 
Sydney and Nan Jacobs, and Bernard and Sophie Mitnick. All but 
my grandfather Syd were immigrants to our great country early 
in their lives, and Syd was the son of immigrants. Their 
stories of leaving their homelands to seek freedom and 
opportunity in America and working hard to succeed here, while 
typical in many ways of a large number of my fellow citizens, 
are constant inspirations to me. They raised families, became 
pillars of their communities, and built strong foundations for 
the generations to come. Theirs was an extraordinary and awe-
inspiring generation, and I consider myself very fortunate to 
have known all of them well.
    I will always cherish the memory of the day in June 1993 
when my grandfather Syd, who was also an attorney, at the age 
of 88 realized a dream that he had since I was born by moving 
my admission to the U.S. Supreme Court Bar in open court.
    If confirmed, it will be a privilege and an honor for me to 
return to DHS and work side by side with the Department's more 
than 240,000 dedicated professionals to safeguard the American 
people, our homeland, and our values.
    I say ``return'' because I was there at the beginning. As a 
detailee from the Department of Justice in the DHS Transition 
Planning Office, I was one of a small group of attorneys tasked 
with supporting the establishment of DHS in late 2002 and early 
2003. I went on to serve as the Department's first Associate 
General Counsel for Science and Technology (S&T) until I moved 
to the White House in 2004, where I served successively as 
Deputy Counsel of the Homeland Security Council and as 
Associate Counsel to the President with primary responsibility 
for all homeland security legal matters.
    Although it has been many years since I served in DHS and I 
have admired from afar the great strides made by the 
Department, I am generally aware of the ongoing challenges of 
integrating and coordinating its many disparate elements. If 
confirmed, I intend to build upon the good work of my 
predecessors to ensure that the more than 1,800 talented and 
dedicated attorneys in the Office of the General Counsel (OGC) 
provide sound, timely, actionable, and consistent legal advice 
throughout the Department while also ensuring the protection of 
the privacy and other legal rights of Americans.
    In doing so, I will employ my 28 years of experience 
practicing law at the highest levels in government and the 
private sector, which has included supervising senior attorneys 
and serving as an integral member of senior leadership teams 
that managed organizations ranging from several hundred to more 
than 9,000 employees.
    I also understand that oversight activities are essential 
functions of the Congress that are necessary for the exercise 
of its constitutional powers and are also vital to the proper 
functioning of the executive branch.
    Therefore, if confirmed, I will look forward to working 
with you and your staffs in a cooperative manner.
    Chairman Lankford, Ranking Member Peters, and distinguished 
Members of the Committee, thank you again for this opportunity 
to appear before you, and I would be pleased to answer any 
questions.
    Senator Lankford. Thank you, Mr. Mitnick.
    There are three mandatory questions we ask of every 
candidate that comes before this Committee, and then after we 
go through those three quick questions, the Ranking Member and 
I are going to defer to Senator Tester to opening questions 
there.
    Three quick questions, I will need a yes or no answer on 
these.
    Is there anything that you are aware of in your background 
that might present a conflict of interest with the duties of 
the office to which you have been nominated?
    Mr. Mitnick. No.
    Senator Lankford. Do you know of anything, personal or 
otherwise, that would in any way prevent you from fully and 
honorably discharging the responsibilities of the office to 
which you have been nominated?
    Mr. Mitnick. No.
    Senator Lankford. Do you agree, without reservation, to 
comply with any request or summons to appear and testify before 
any duly constituted committee of Congress if you are 
confirmed?
    Mr. Mitnick. Yes.
    Senator Lankford. Great. Thank you.
    Senator Tester, you are recognized.

              OPENING STATEMENT OF SENATOR TESTER

    Senator Tester. Thank you, Mr. Chairman, Ranking Member, 
for having this hearing. Most importantly, thank you for being 
here today, Mr. Mitnick, and thank you for your willingness to 
serve.
    There is always a debate in Congress about national 
security and civil liberties and where that balance needs to 
be. Could you give me your philosophy as--and do not take too 
much time--as concisely as you can on where you value each of 
those? Is one more important than the other?
    Mr. Mitnick. Senator, that is a critical question, and I 
think they are both critical issues. And it is important to 
strike that balance.
    The mission of the Department is, of course, to safeguard 
the American people and our homeland and our values, but at the 
same time, we have to do that in a way that--if I am confirmed, 
that respects privacy and legal rights of Americans. And that 
balance has to be struck.
    Senator Tester. So let me give you an example. It has been 
a few years ago now. There was license plate reader technology 
that ICE was planning to expand, and I thought that there was a 
potential for some overstepping by the Federal Government on 
our civil liberties. And so I fought it until the Department 
engaged with the DHS Privacy Office and the Office of Civil 
Rights and Civil Liberties.
    Are you familiar with those two offices, first of all, 
DHS's Privacy Office and the Office of Civil Rights and Civil 
Liberties?
    Mr. Mitnick. Yes, Senator, I am familiar with them.
    Senator Tester. And would it be your intent--let me ask it 
this way. What do you believe the roles of those two offices 
are in regards to your position?
    Mr. Mitnick. I believe those offices have critical roles in 
vetting the actions of the Department to ensure that all of the 
actions of the Department comply with privacy laws, civil 
rights, and civil liberties, and if I am confirmed, I will 
ensure that the Office of the General Counsel coordinates 
closely with the Chief Privacy Officer and the head of the 
Office of Civil Rights and Civil Liberties to carry out that 
vetting. And I will ensure that their views are taken into 
account.
    Senator Tester. And what happens if your boss says, ``John, 
you are way out of bounds here. We do not agree with you. We do 
not think''--on either side, by the way, on the national 
security side or the civil liberties side. What is your 
response going to be?
    Mr. Mitnick. Senator, throughout my 28 years of practicing 
law, I have encountered occasionally situations in which there 
was lack of complete agreement, shall we say, between my 
superiors and me, and in all of those situations I was able to 
resolve those by dealing with the issue objectively and 
reasonably. And usually, an accommodation or a mutually 
acceptable resolution can be found.
    I can envision the situation that might need to be elevated 
at some time, but usually, at every point in my career when I 
have had one of those situations, I have been able to resolve 
them.
    Senator Tester. All right. So this is an important job, 
your role as General Counsel. The decisions that, well, the 
U.S. Customs and Border Protection (CBP) makes at ports of 
entry (POE), for example, and others have the ability to affect 
the law. Do you believe that there is legal training for the 
DHS employees?
    And I know that you are limited in this position, although 
I did not read your vita to find out if you had ultimate 
familiarity with the Department. So you can tell me now. Do you 
believe the training for DHS employees at this moment in time 
is right?
    Mr. Mitnick. Senator, I do not have access to all of the 
information about training that goes on within the Department 
at this point. I have not been there since 2004.
    If I am confirmed, I would look forward to working with my 
colleagues in the Office of the General Counsel and the Acting 
Secretary and the other senior leaders to survey the types of 
training that are provided and to ensure that they are 
adequate.
    Senator Tester. Would you see it in your role to do an 
assessment of the employees across the components of DHS to 
make a determination whether they are properly trained in areas 
of legal matters?
    Mr. Mitnick. Yes. And that is what I had in mind in what I 
just mentioned.
    Senator Tester. Yep.
    Mr. Mitnick. And I think that is a critical role of the 
Office of the General Counsel, and one thing that facilitates 
that role is that virtually all of the attorneys in the entire 
Department, including those in the operational components, 
report up to the General Counsel, so that provides the 
opportunity for the General Counsel to ensure that the proper 
legal guidance is pushed out through all of those elements.
    Senator Tester. And I think that from my perspective and I 
get the impression from your perspective, too, it is a 
critically important component because you can have the best of 
intentions, and the folks on the ground, if they do not know 
the legal parameters which they work under, could overstep them 
pretty quickly.
    Mr. Mitnick. I think that is absolutely critical, and it is 
a critical part of the role of the General Counsel. And if I am 
confirmed, I am going to focus very intently on that role.
    Senator Tester. Well, I appreciate your willingness to 
serve. I can tell you, it is getting back to the first 
question, the question of civil liberties versus national 
security it is tough. But the truth is, in your position, if 
you understand that and you are willing to analyze and apply 
that analysis to the situations, I think we will be fine.
    Thank you. Thank you for your willingness to serve.
    And by the way, Hadley, I hope you have some great stories 
to tell your classes this afternoon. You will have them 
riveted, I am sure. [Laughter.]
    Mr. Mitnick. Thank you, Senator.
    Senator Tester. Thank you.
    Senator Lankford. Mr. Mitnick, let me continue on the line 
of questioning that Senator Tester had on civil liberties. Let 
us talk about some of the things that have come up specifically 
on this issue.
    One of them is personal information for travelers at ports 
of entry. There has been some conversations about individuals 
that are crossing into the United States, what access the 
United States should have to--whether it be cell phones, 
personal information of an American citizen versus a person 
that is traveling into the country that is not an American 
citizen. Do you have a general perspective on how we balance 
out the civil liberties and protecting the Nation there, any 
kind of personal information or especially a cell phone or a 
device?
    Mr. Mitnick. Senator, that is a critical issue. I 
appreciate you raising it, and Customs and Border Protection 
has very broad authority, as does U.S. Immigration and Customs 
Enforcement (ICE), in enforcing the law at the borders, vetting 
people and property coming into the United States, and of 
course, with the advent of technology, it is possible to bring 
an awful lot of information in, in a very small package.
    My understanding is that the authority is fairly broad, but 
it is, of course, critical to ensure that any searches of 
devices respect the privacy rights of Americans and also civil 
rights and civil liberties and things like attorney-client 
privilege. I know that the various bar associations have raised 
concerns about privileged information on those devices.
    So, if confirmed, I look forward to taking a close look at 
the operational protocols and the training provided to the CBP 
and ICE officers at the border to ensure that privacy and civil 
liberties are addressed appropriately.
    Senator Lankford. OK. Yes. I would just tell you that in an 
oversight area, we will come back and ask questions about that 
because the unique rights and privileges for Americans to be 
secure in their persons, papers, houses, and effects is a 
constitutionally protected right, and we want to make sure that 
we can continue to abide by that basic constitutional right 
protection for Americans as they travel back and forth across 
the border.
    Talking about borders, in 2006, the Secure Fences Act was 
passed. That started a process of putting about 650 miles of 
fence on our Southern Border. Of all of that area, there is a 
lot of land acquisition as well. 334 cases were filed against 
the Federal Government on that. 243 of those have been resolved 
in an average time of 3.6 years. The remaining cases are still 
pending for an average of 8.5 years. Help me understand how you 
will advise DHS because if there will be additional areas, 
whether that be tethered drones, technology, roads to access, 
or areas where there will be fence or vehicular blocks that 
will be there, all of those are going to require land 
acquisitions along the border. Help me understand how you will 
advise them to keep DHS out of lengthy lawsuits, if at all 
possible, so we can actually have a secure border and not 
lengthy lawsuits.
    Mr. Mitnick. My understanding is that the Office of the 
General Counsel is involved in the exercise of eminent domain 
with regard to the building of infrastructure at the border, 
including the fence, and as a general matter, I think that the 
power of eminent domain is one of the most potentially 
intrusive powers that the Federal Government and other 
governments have. And it needs to be exercised judiciously, and 
it seems to me that it ought to be targeted.
    So if I am confirmed, one thing I would do in my role as 
General Counsel is try to ensure that the impact on private 
landowners is minimized, to the extent possible, and hopefully, 
that would reduce the amount of time needed to work out the 
acquisition of the various property rights.
    Senator Lankford. Yes. It does not help for us to be able 
to pass a bill dealing with security if the way that it is 
implemented creates so many lawsuits that you actually cannot 
get it done and we actually do not have real security. So that 
will be one of the things we will trust that you will stay 
engaged on and will help DHS as they work through the process.
    Two other quick questions that I want to be able to have, 
and then I want to be able to recognize Senator Peters.
    The Federal Emergency Management Agency (FEMA) in the 1990s 
was instructed by Congress to allow not-for-profits to also be 
engaged in emergency disaster relief, so zoos, museums, 
whatever it may be, nonprofits, were allowed to be able to do 
that. At that time, FEMA determined that they would not engage 
with houses of worship or any religious institution, even if it 
was a nonprofit.
    Now, the law just states ``nonprofits,'' but it has been 
redefined to say ``unless you are a church or a synagogue or a 
mosque,'' and then you cannot apply for it, which is very 
ironic because in most disaster situations, those community 
locations that are also places of worship become the place for 
clothing and food distribution and Red Cross shelters and all 
those things. But they are not eligible at the end of it for 
emergency assistance from FEMA.
    The law does not prohibit that. It just says nonprofits. It 
has just been reinterpreted in a way by succeeding FEMA folks 
and by General Counsels to say we want to prohibit that.
    Then along came the Supreme Court. In the Trinity Lutheran 
case, earlier this year, they said in a 7-to-2 decision that 
the government cannot discriminate against a location simply 
because it is a religious location for any kind of benefit. 
That if the benefit is open to all, it is truly open to all.
    So my question to you is they are going to have to 
reexamine this and to be able to determine if a church, a 
synagogue, or a mosque that was destroyed in a hurricane or in 
a wildfire is also open to emergency disaster relief or not.
    I am not asking you to tell me everything about your 
opinion on that, but this will probably land on your desk 
pretty quickly because, as you have probably seen in the 
papers, there are a few disasters that are going on right now. 
Help me determine how you are going to work through that 
process with them.
    Mr. Mitnick. Senator, I appreciate that question. It is a 
very important issue and one that I recall coming up 
occasionally when I was in the White House Counsel's Office. I 
was there for a little over 3 years, and all of the Stafford 
Act emergency and major disaster declarations came through me 
when they came over from FEMA after coming from the Governors. 
And so I have some familiarity with that.
    I am aware, though, from that experience that houses of 
worship have been some of the most active participants in 
providing disaster assistance, and if I am confirmed, I look 
forward to working with the very capable attorneys at FEMA to 
address that issue.
    Senator Lankford. Yes. We look forward to that resolution 
being a clear resolution, consistent with the original law that 
was passed in the 1990s and with the Supreme Court case that 
has already come up, with Trinity Lutheran.
    One quick thing on REAL ID, there are a lot of States that 
are waiting on waiver decisions. This is one of those things 
that is sitting out there. That a lot of States are working 
through the REAL ID process. That some of them have worked very 
hard to be able to accomplish it. Some of them have not worked 
as hard, but all of them are interested to be able to know what 
waiver authorities will be given and the timing that those 
things will occur from multiple States around the country.
    I would only say to you, as you are giving counsel on the 
waivers to the Secretary and other individuals, however the 
decision has to be made on how to do a waiver and what that 
would be, the earlier those decisions can be made the better. 
It creates a great deal of uncertainty in States as they wait 
until the last minute to be able to get an answer, and so 
counsel at the last second is not as helpful as counsel a month 
ahead. And I am fully aware that sitting up here from Congress, 
we are the last people to be able to complain to someone about 
waiting until the last moment. I am fully aware of the irony of 
that conversation, but where it can be controlled, it would be 
helpful to be able to get decisions earlier rather than later 
on any of those waivers on REAL ID.
    Mr. Mitnick. Senator, I am very sensitive to that issue. I 
know that a lot of those extensions are expiring imminently, 
and then there is a date looming out there very soon, I believe 
January 22nd or thereabouts, 2018, at which time those secure 
IDs that comply with the Act would have to be used to access 
Federal facilities and airports.
    So I am aware of the time pressure there, and if I am 
confirmed in time to address that issue, I commit to you that I 
will devote my efforts to that.
    Senator Lankford. That would be very helpful.
    Senator Peters. Thank you, Chairman Lankford.
    Again, Mr. Mitnick, thank you for your willingness to 
serve, and I appreciated the opportunity to spend some time 
with you in my office as well prior to this hearing.
    Mr. Mitnick, do you believe that the DHS should use 
partisan political considerations as a basis for deciding how 
to respond to inquiries or requests for information from 
Members of Congress?
    Mr. Mitnick. Senator, I think that, in general, it is 
incumbent upon the officials and employees of the Department of 
Homeland Security to cooperate with Congress and to respond to 
requests for information in the context of congressional 
oversight.
    That said, there are some exceptions to that, like 
executive privilege, which is the President's to invoke, and 
also there is occasionally, to my understanding, a need to 
prioritize responses because the Department has, of course, 
limited personnel and resources.
    But I do not think that partisan concerns should apply to 
the response to congressional oversight requests.
    Senator Peters. So would you commit to respond in a timely 
manner to all congressional inquiries and requests for 
information from Members of Congress, including requests from 
Members in the Minority?
    Mr. Mitnick. Senator, I do commit to working cooperatively 
with individual Members of Congress, including Members in the 
Minority, to respond to requests.
    As I mentioned, there could be exceptions to that, such as 
executive privilege, and also there is often a need to 
prioritize.
    So it might be possible in many instances to comply with 
deadlines that are applied--in other instances, we might need 
to work cooperatively with the requesting Member to work out a 
schedule, but I certainly commit to working with all Members to 
satisfy their requests.
    Senator Peters. Well, you have brought up prioritization a 
few times in your answer. How would you prioritize 
congressional inquiries? What is that priority? If you could 
elaborate, please?
    Mr. Mitnick. Senator, if confirmed, first and foremost, I 
would work with the Acting Secretary and the other senior 
leaders of the Department and also including the Office of 
Legislative Affairs to work cooperatively with Members.
    I think, at first, there should be an effort to work with 
the Congress to work out a comprehensive prioritization if 
there are conflicting requests and ask the Members to tell us 
which are the highest-priority requests and which are maybe a 
little bit lower priority.
    If the Department is put in the situation----
    Senator Peters. So what Members would you ask to 
prioritize? Who would make that decision here in Congress as to 
how you would prioritize?
    Mr. Mitnick. Senator, if confirmed, I envision that we 
would work with all of the Members who are seeking documents 
and information.
    Senator Peters. Well, every Member will want to be 
prioritized at the top. So how do you make that decision?
    Mr. Mitnick. Well, then if my first solution to that 
problem does not work, if confirmed, the Department will be 
left to make some sort of decision about prioritization, but 
hopefully, we will be able to arrive at some sort of 
understanding or resolution working directly with the Members.
    Senator Peters. Are you aware of any White House 
instruction that DHS should refuse to respond to inquiries or 
requests for information from certain Members or certain 
parties within Congress?
    Mr. Mitnick. Senator, I am not aware of any direction or 
guidance in that regard, and in fact, I am aware that there has 
been correspondence between Senator Grassley and Mr. Don 
McGahn, the White House Counsel, relatively recently regarding 
the Office of Legal Counsel opinion that was issued on May 1, 
2017. I have read that correspondence, and I did not see 
anything like that in there.
    Senator Peters. Do you commit to reviewing any outstanding 
congressional inquiries and requests for information and then 
reporting back to this Committee on the status of those?
    Mr. Mitnick. Actually, I should note that that letter did 
not come from the White House Counsel. I believe it came from 
Mr. Marc Short, now that I recall.
    Senator Peters. OK.
    Mr. Mitnick. So it was correspondence from Senator Grassley 
and responded to by Mr. Short, I think. I am sorry.
    Senator Peters. So the question is, do you commit to 
reviewing any outstanding congressional inquiries and requests 
for information and then reporting back to this Committee on 
the status of those requests, if confirmed?
    Mr. Mitnick. Senator, I commit, if confirmed, to work 
cooperatively with all Members of Congress to satisfy their 
requests for documents and information.
    Senator Peters. As you know, the DHS has the largest law 
enforcement force in the country, and if confirmed, you would 
certainly play a very critical role in reviewing the guidance 
that is put out to the agency, across the entire agency. What 
would you do to ensure that there is consistent guidance made 
that makes it out, actually makes it out to the field to the 
men and women who are serving?
    We are hearing that guidance that may be coming from 
Washington is not getting to the field, and that the different 
field offices interpret and follow guidance differently, which 
is certainly unacceptable, and I assume that is something you 
would want to pick up and I would love to hear your comments as 
to how you are going to make sure that it is done in a proper 
and consistent manner.
    Mr. Mitnick. Senator, not being at the Department now, I am 
not aware of those specific problems, but as I mentioned in my 
opening statement, I think that it is a critical tool of the 
General Counsel that nearly all of the attorneys in the 
Department, including those at the operational components, 
report up to the General Counsel. And that provides a very 
important opportunity to ensure that not only sound, timely, 
and actionable advice is pushed out to all of the employees of 
the Department, to ensure that the Department complies with 
applicable law, but also provides an opportunity to ensure 
consistency of legal advice throughout the Department.
    So I would work with my colleagues who are actually 
embedded in the operational components of the Department to 
ensure that the advice is not only consistent, but it is also 
provided directly to the very dedicated people who work at DHS 
who need it in their day-to-day operation.
    Senator Peters. Mr. Mitnick, do you believe that religion 
should be a basis for a U.S. counterterrorism or law 
enforcement policy, particularly as it relates to the targeting 
of individuals with ancestry from Muslim-majority countries?
    Mr. Mitnick. Senator, I do not believe that one's personal 
religious beliefs should be considered in that context, and so 
I think that our approach to counterterrorism should be based 
on assessment of risk.
    Senator Peters. So how do you reconcile your belief with 
the travel ban Executive Orders that have been put forward?
    Mr. Mitnick. Senator, I have read the Executive Orders that 
you mention, including the one, the proclamation, that was 
issued by the President on September 24th, I believe, and I do 
not see any reference in those orders to the religious 
background of anyone who might be affected by those orders. 
They are directed at specific countries based on specific 
objective security criteria.
    Senator Peters. Well, what would you do if you found a 
policy to be inconsistent with current law and inconsistent 
with the belief that you just expressed to me?
    Mr. Mitnick. Senator, it would depend, I believe, where the 
policy originated. With regard to Presidential guidance, a 
Presidential policy, I would hope to be--if confirmed--a 
participant in the Administration's policy development and 
implementation process, with which I am very familiar from my 
time in the White House, and participate in that to ensure that 
issues like that are addressed in the policy development 
process.
    If it is something within the Department alone, if I am 
confirmed as General Counsel, I would hope that I would have 
some direct impact in giving advice on how those policies 
should be crafted and contoured in order to avoid legal issues.
    Senator Peters. Thank you.
    Senator Lankford. Senator Hassan.

              OPENING STATEMENT OF SENATOR HASSAN

    Senator Hassan. Thank you, Mr. Chairman.
    Good morning, Mr. Mitnick. It is nice to see you again, and 
I note, among others, that there is a particularly young family 
member in the audience, and I just wanted to say good morning, 
and thank you very much for sharing. I was not here earlier. 
Daughter? Father?
    Mr. Mitnick. Yes. This is my daughter, Hadley.
    Senator Hassan. OK. So thank you for sharing your dad with 
the rest of us. We are very grateful he is willing to serve.
    I wanted to ask you, Mr. Mitnick, about a topic that you 
and I discussed when we met in my office, which is domestic 
terrorism.
    We have been struggling, it seems to me, with what 
constitutes domestic terrorism versus international terrorism. 
If an American on American soil cites a thought or ideology 
that originated outside of the United States but acts inside 
the United States, for instance, is that domestic or 
international terrorism? So do you have a definition, a working 
definition, of what distinguishes the two?
    Mr. Mitnick. Senator, that is a very important issue, and I 
believe it was one that was discussed at the hearing last 
Wednesday----
    Senator Hassan. Yes.
    Mr. Mitnick [continuing]. Which involved Acting Secretary 
Duke----
    Senator Hassan. Right.
    Mr. Mitnick [continuing]. And the Federal Bureau of 
Investigation (FBI) Director Christopher Wray.\1\
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    \1\ The hearing referenced is HSGAC's September 27, 2017, hearing 
``Threats to the Homeland''.
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    I would defer to Director Wray, of course, on that issue, 
and I believe that, notwithstanding the definitional issue, his 
view was that there are more than adequate authorities for the 
FBI to go after domestic terrorists under current law.
    Senator Hassan. Well, but I think that kind of begs the 
question whether the Department of Homeland Security has a role 
to play in countering efforts by domestic terrorists to launch 
terrorist attacks in the United States. Do you think it does?
    Mr. Mitnick. Senator, I do believe that the Department has 
a very critical role to play, and for example, I am aware that 
the Department has a countering violent extremism (CVE) effort 
that is fairly robust. I think the funding is relatively 
limited but certainly could be expanded.
    Senator Hassan. In your view, is it just a funding issue, 
or are there other limitations to the Department's role in 
stopping domestic terrorism?
    Mr. Mitnick. Senator, not being at the Department now, I am 
not aware of any deficiency in legal authorities that the 
Department has with regard to addressing domestic terrorism 
within the scope of its mission and its role.
    Senator Hassan. Right.
    Mr. Mitnick. And if I am confirmed, I certainly would be 
very interested in becoming more knowledgeable on that and 
addressing any possible deficiencies.
    Senator Hassan. Well, I think one of the things that we 
began to talk about last week with Director Wray was the issue 
that there is not actually a criminal offense of domestic 
terrorism the way there is international terrorism, and it does 
seem to me that this is squarely within the Department's area 
and scope of responsibility and should be a part of its 
jurisdiction. Domestic terror threats are considerable, and we 
have seen a growing presence in our country.
    So I would urge you, should you be confirmed, to be looking 
at this issue with the Department's leadership because I think 
we want to make sure that Americans are safe from both domestic 
and international terrorism, and that the Department, with all 
of its resources and expertise--in concert, obviously, with law 
enforcement, which is the way you operate, anyway--could be 
taking on a greater role, and I think needs to be paying more 
attention to the issue of domestic terrorism. So I would look 
forward to working with you on that.
    Mr. Mitnick. Senator, I appreciate that, and I look forward 
to working with you as well.
    My understanding is that there is very robust information 
sharing going on between the FBI and DHS and other law 
enforcement entities and the intelligence community (IC).
    My understanding is also, though, that the Homeland 
Security Act specifically accords the law enforcement function 
with regard to terrorism to the Justice Department and the FBI. 
So, within those constraints, I certainly look forward to 
working with you if I am confirmed to address that issue.
    Senator Hassan. Well, and I would look forward to hearing 
from you if, as you identify those constraints or others, there 
are ways that if we all think it makes sense, we could change 
some of those constraints. And I think we are at a critical 
juncture. I think we need to be doing more on the domestic 
terrorism front. I think we can do that without compromising 
our efforts on the international terrorism front, but we should 
always be looking for ways to improve and strengthen, and so I 
look forward to getting your best assessment, should you be 
confirmed, about ways we can make sure the Department has not 
only the resources it needs but the authority it needs.
    Thank you.
    Mr. Mitnick. Thank you.
    Senator Hassan. And I yield the rest of my time.
    Senator Lankford. Thank you. Senator Harris.

              OPENING STATEMENT OF SENATOR HARRIS

    Senator Harris. Thank you. Good morning.
    Mr. Mitnick. Good morning.
    Senator Harris. As you know, the Deferred Action for 
Childhood Arrivals (DACA) program was created over 5 years ago, 
and it has allowed thousands upon hundreds of thousands of 
hardworking young people to have status that defers their 
deportation, if they have submitted information about 
themselves and undergone an analysis and an investigation about 
who they are, their background, are they productive, have they 
committed a crime or not. And if they clear that vetting, then 
they received DACA status.
    You are familiar with the DACA program, I take it?
    Mr. Mitnick. Yes, Senator.
    Senator Harris. OK. And you are also aware, then, that on 
September 5th, without any administrative notice, the Attorney 
General (AG) of the United States indicated that the DACA 
program was being terminated?
    Mr. Mitnick. I am aware that it was rescinded and it is 
being wound down. Yes, Senator.
    Senator Harris. What do you believe is the significance of 
the announcement, given that there was no administrative 
notice?
    Mr. Mitnick. Senator, not being at the Department now, I do 
not have access to the information that was considered and the 
legal advice that was given with regard to, for example, 
whether the Administrative Procedure Act (APA) or other 
requirements were applicable or not.
    I am familiar with what was announced publicly, however.
    Senator Harris. Those of the DACA recipients that their 
DACA status was set to expire by March 5th were given 30 days 
to renew, to apply for renewal of their status.
    I am asking you this question now as a colleague, a 
professional in the law. Part of our responsibility, especially 
as public lawyers serving the public interest and with the 
public trust, is to concern ourselves with fairness. Would you 
agree with that?
    Mr. Mitnick. I believe it is incumbent upon any public 
servant and particularly an attorney to act with fairness.
    Senator Harris. So these young people were given 30 days to 
renew their status, and within that 30 days, they would then, 
in order to comply with the renewal process, have to gather a 
lot of documentation and come up with $495. And I am sure you 
know Federal minimum wage is $7.25 an hour, so it is a lot of 
money.
    What is your perspective on the fairness of that, and do 
you have any perspective on whether or not it would be fair to 
extend that deadline to give those young people more time to 
comply with the requirement that they renew their status?
    Mr. Mitnick. Senator, not being at the Department now, I do 
not know all of the constraints and all of the issues that were 
considered by the leadership, and it would be inappropriate, I 
think, for me to express an opinion or second-guess the 
leadership of the Department, particularly the Acting 
Secretary, in the decision that was made.
    I do understand that the Attorney General sent a letter to 
the Acting Secretary, I believe, on September 4th expressing 
his opinion that the DACA program, as initiated in 2012, is 
unconstitutional, and so I do appreciate the fact that the 
Department's leadership was operating under some significant 
constraints in this regard.
    But not being there, I do not know all of the details.
    Senator Harris. And I appreciate your point.
    The point of my question is to also just have some sense of 
what you believe your role would be, if confirmed, and what 
your role and responsibility would be to advise your client on 
what is not only legally, but based on black-letter law, 
appropriate and constitutional, but also what is fair in terms 
of the Administration of the great powers of that Department.
    So, for example, another related issue is that Acting 
Secretary Duke was here recently and testified that the DACA 
grantees would need to renew their status by October 5th but 
were never individually notified of the change in the policy. 
So there were press conferences, but there was never any direct 
notification to DACA recipients that the program would be 
terminated and they had one month to renew their status. What 
is your perspective on the fairness of that process?
    Mr. Mitnick. Senator, let me say that my personal belief is 
that the DACA recipients are among the most sympathetic of 
those who are in this country without legal status, and I 
believe that my role as an attorney transcends black-letter 
law, as you said, although a distinction must be drawn. In the 
private sector, I am accustomed to distinguishing between legal 
issues and business issues----
    Senator Harris. Sure.
    Mr. Mitnick [continuing]. And the analog to that in 
government would be a distinction between legal issues and 
policy issues, and if I am confirmed, I would hope to have a 
seat at the table with the other senior leaders of the 
Department and express my views not only on black-letter law 
but also on fairness and compassion and acting as public 
servants.
    Again, I do not know the details or the specific 
constraints under which the Department was operating in this 
regard, so I cannot really express an opinion about the 
specific issue you raised.
    Senator Harris. I appreciate your perspective and, in 
particular, your understanding of the responsibility we all 
have to look at the broad picture and not just the technical 
component of the work that we do, so thank you for that.
    And then I have a question about the responsibilities which 
you would undertake, if confirmed, which are, quote, 
``protecting the rights and liberties of any Americans who come 
into contact with the Department.''
    And increased enforcement and border operations by ICE and 
CBP have led to growing reports of racial profiling, 
particularly of Latinos. What specifically would you do to 
address implicit bias and racial profiling where and when it 
exists?
    Mr. Mitnick. Senator, I think it is absolutely critical 
that the Department of Homeland Security carry out all of its 
functions in strict compliance with privacy rights and other 
rights of Americans, including civil liberties, and if I am 
confirmed, I look forward to reviewing all of the guidance, 
including protocols and operational legal guidance provided to 
the operational components, including specifically CBP and ICE 
and particularly those who have direct contact with the 
American people on a daily basis to ensure that all of their 
actions and activities comply with those rights.
    Senator Harris. And I just have one more question.
    Mr. Mitnick. And by the way I think it is critical that I 
work with the Chief Privacy Officer and the head of the Office 
of Civil Rights and Civil Liberties in that regard.
    Senator Harris. I agree.
    And one more question which is, will you commit to this 
Committee that, if confirmed, you will specifically take a look 
at the best practices around training law enforcement on 
implicit bias and procedural justice, as the FBI has done that, 
for example, as another Federal agency, and commit that you 
will urge that all of the members of the Department and 
particularly those in the field be trained on implicit bias and 
procedural justice?
    Mr. Mitnick. Senator, if confirmed, I will look at that 
policy and others and ensure to the extent I can within my 
authority as General Counsel of the Department that proper 
guidance is given and that proper training is given on that 
guidance, but of course, I will have to work with the heads of 
those components and the other senior leaders in that regard.
    Senator Harris. Thank you.
    Senator Lankford. Thanks, Senator Harris.
    I have a few more questions to be able to wrap up, and then 
we will give you an opportunity to make any final statements, 
if you choose to make those.
    Will you cooperate with the Inspectors General (IGs) as 
they work with each individual area of DHS and to make sure 
that they have access to the information that they need access 
to?
    Mr. Mitnick. Senator, I look forward, if confirmed, to 
working cooperatively with the Inspector General in the 
Department. I recognize that the Inspector General has a 
critical role in audits and investigations under the Inspector 
General Act and also the relevant provisions of the Homeland 
Security Act of 2002, and so I would look forward to working 
with the Inspector General in a collegial and cooperative 
manner and, within the scope of my authority as General 
Counsel, ensure that the Inspector General has all of the 
resources needed to accomplish the Inspector General's 
function.
    I am aware that there is existing guidance within the 
Department that I think was issued by the Secretary back in 
2008 that provides for cooperation and provision of documents 
and information to the Inspector General. So, if confirmed, I 
look forward to looking at that, seeing if maybe it needs to be 
updated, and working with the Inspector General in that regard.
    Senator Lankford. Terrific. Yes. We are on the same team 
here, and what I do not want to have is the situation where the 
Inspector General is seen as an adversarial role. We are all 
trying to deal with all issues there, whether it be 
whistleblower protection or whether that be waste in government 
or whether that be fraud within an entity. I never want to see 
one of our agencies try to protect themselves by blocking out 
the Inspector General from their investigation.
    DHS has a very unique role in our Federal Government in 
working with States for voting and to be able to help those 
States in their voting. One of the key criteria, though, is 
States run their voting systems, not the Federal Government. 
Any counsel that you would give initially or any concerns that 
you have to make sure that States are protected to be able to 
make decisions that they have to make as States without the 
Federal Government trying to overstep its clear boundaries 
there?
    Mr. Mitnick. Senator, that is a critical issue. I 
appreciate you raising it, and I am acutely aware that the 
elections in 2018 are looming and there is a need to be 
proactive, if I am confirmed.
    My understanding, Senator, is that the election 
infrastructure--although as you said, it is primarily the 
responsibility of State and local governments--was added as an 
element of critical infrastructure by the Department, and that 
the Department, therefore, is ready, willing, and able, to my 
understanding, to work with State and local governments who 
request assistance, particularly in addressing possible 
cybersecurity threats that could compromise the election system 
and election technology.
    So if I am confirmed, I would look forward to working with 
Acting Secretary Duke and other senior leaders in the 
Department to ensure that that assistance is lawfully provided.
    Senator Lankford. Yes. We look forward to that as well. 
Cybersecurity is also an area that is squarely within DHS. It 
is also one of the thorniest issues of the law because 
everywhere where you get into the leading edge of technology, 
law and policy tend to lag behind on it. Again, this goes back 
to one of our earlier questions about Americans being secure in 
their houses, papers, persons, and effects. It is a basic 
constitutional protection, but you get into the area of 
cybersecurity, and attacks both from outside the United States 
and within the United States, is a very critical issue for us 
in the long term in just our economic security as a nation as 
well as our private information and security of that.
    Any insight that you can give us into your legal mindset on 
cybersecurity issues and any boundaries that you could lay out 
in front of us?
    Mr. Mitnick. Senator, my personal opinion is that 
cybersecurity is one of the greatest threats that we face as a 
Nation, and it is a critical role of the Department of Homeland 
Security.
    I was involved in cybersecurity work when I worked in the 
White House, including crafting Presidential direction. Of 
course, that was 10 or 11 years ago. So, if confirmed, I look 
forward to becoming more knowledgeable about exactly what the 
Department's activities are right now.
    I do know that the Department has a critical role in 
safeguarding the dot-gov domain and has very critical 
authorities there and has regulatory authority in that regard, 
and I understand that the Department has an absolutely critical 
role in working with the private sector and State and local 
governments on information sharing with regard to 
cybersecurity. And my understanding is there is liability 
protection that Congress enacted, which also is assisting now 
in the information sharing back and forth between the 
Department and the private sector, but I look forward to 
working on that issue, if I am confirmed.
    Senator Lankford. Great. Terrific.
    Senator Harris, do you have any final questions?
    Senator Harris. No, thank you.
    Senator Lankford. I have one final question on this, and it 
is extremely important. I saw in your background, you are a 
baseball fan. So Indians or Dodgers in the World Series? Who do 
you call? Are they both there and if they are there, or if you 
have another option who is in the World Series and who wins it?
    Senator Harris. The Giants. [Laughter.]
    Senator Lankford. You can pick another option, if you 
choose to. I know this is the toughest question of the day.
    Mr. Mitnick. Well, being in Washington and having lived 
here for 16 years, I have been transformed into a Nationals 
fan. So I do not want to say anything that might prejudice--not 
that my statements would have any bearing on their success in 
the post season, but I do not want to say anything that would 
have a negative impact in any way on the Nationals and their 
prospects.
    I have to admit that I was very impressed by that run that 
the Dodgers went on this season until they came back down to 
earth, although they still ended up pretty well. It looked to 
me like they were going to set a record for number of wins in a 
regular season, but they are a formidable team.
    Senator Lankford. Pretty remarkable.
    Mr. Mitnick. I should mention the Indians had a pretty good 
run.
    Senator Lankford. Yes, they had a pretty good run as well.
    Mr. Mitnick. Yes.
    Senator Lankford. Any other final statements that you want 
to make before this Committee?
    Mr. Mitnick. Senator, I do not have any prepared remarks, 
but I do want to thank you for considering my nomination and 
the rest of the distinguished Members of this Committee and 
also Ranking Member Peters for being here today and meeting 
with me yesterday.
    I have enjoyed this process, and if confirmed, I look 
forward to working cooperatively with all of the Members of 
this Committee and other Members of Congress.
    Senator Lankford. Terrific. Yes. Thank you for making 
yourself available for both meeting with me and the office and 
just going through so many questions with some of the other 
Members on the dais as well and to be able to go through those 
things in our office, in that setting, so we can go into 
greater depth on these issues.
    We do need a strong counsel there, and so look forward to 
having a good, strong counsel in that spot because we need 
decisions. We need them made rapidly but accurately as well 
through the process.
    Just to be able to make this final closing statement, the 
nominee has made financial disclosures and provided responses 
to biographical and prehearing questions submitted by the 
Committee. Without objection, this information will be made 
part of the hearing record, with the exception of the financial 
data, which are on file and available for public inspection in 
the Committee offices.\1\
---------------------------------------------------------------------------
    \1\ The information of Mr. Mitnick appears in the Appendix on page 
23.
---------------------------------------------------------------------------
    The hearing record will remain open until noon tomorrow, 
October the 4th, for the submission of statements and questions 
for the record. However, if Members wish to receive responses 
to their questions from Mr. Mitnick prior to the Committee vote 
tomorrow, they must submit questions for the record by 5 p.m. 
today.
    Thank you again, Mr. Mitnick, for your work and for being 
here and going through this process.
    The hearing is adjourned.
    [Whereupon, at 10:31 a.m., the Committee was adjourned.]

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