    [Senate Hearing 117-493]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 117-493

                              CONFIRMATION HEARING
                              ON THE NOMINATION OF
                           HON. MERRICK BRIAN GARLAND
                             TO BE ATTORNEY GENERAL
                              OF THE UNITED STATES

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

                                    HEARING

                                   BEFORE THE

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 FIRST SESSION
                                   __________

                            FEBRUARY 22 and 23, 2021
                                   __________

                               Serial No. J-117-1
                                   __________

             Printed for the use of the Committee on the Judiciary

                      [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                        U.S. GOVERNMENT PUBLISHING OFFICE

    48-356 PDF                 WASHINGTON : 2023

                           COMMITTEE ON THE JUDICIARY

                       RICHARD J. DURBIN, Illinois, Chair
    PATRICK J. LEAHY, Vermont            CHARLES E. GRASSLEY, Iowa,
    DIANNE FEINSTEIN, California             Ranking Member
    SHELDON WHITEHOUSE, Rhode Island     LINDSEY O. GRAHAM, South Carolina
    AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
    CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
    RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
    MAZIE K. HIRONO, Hawaii              BEN SASSE, Nebraska
    CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
    ALEX PADILLA, California             TOM COTTON, Arkansas
    JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
                                         THOM TILLIS, North Carolina
                                         MARSHA BLACKBURN, Tennessee
                 Joseph Zogby, Chief Counsel and Staff Director
          Kolan L. Davis, Republican Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

        February 22, 2021, 9:30 a.m., and February 23, 2021, 10:00 a.m.

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Durbin, Hon. Richard J., a U.S. Senator from the State of
      Illinois:
        February 22, 2021, opening statement.........................     1
        February 23, 2021, opening statement.........................    95
    Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa:
        February 22, 2021, opening statement.........................     5
        February 23, 2021, opening statement.........................    96

                                  INTRODUCERS

    Van Hollen, Hon. Christopher, a U.S. Senator from the State of
      Maryland.......................................................     8
    Duckworth, Hon. Tammy, a U.S. Senator from the State of Illinois.     9
        prepared statement...........................................   122

                           STATEMENTS OF THE NOMINEE

    Witness List.....................................................   121
    Garland, Hon. Merrick Brian, Nominee to serve as Attorney General
      of the United States:
        February 22, 2021, statement.................................    10
        prepared statement...........................................   125
        questionnaire and biographical information...................   128

                                   WITNESSES

    Blackman, Josh, professor of law, South Texas College of Law,
      Houston, Texas.................................................    98
        prepared statement...........................................   235
    Bucella, Donna A., former director, Executive Office for United
      States Attorneys, and former U.S. Attorney for the Middle
      District of Florida, Irving, Texas.............................   103
        prepared statement...........................................   238
    Henderson, Wade, interim president and chief executive officer,
      The Leadership Conference on Civil and Human Rights,
      Washington, DC.................................................    97
        prepared statement...........................................   242
    Starr, Hon. Ken, Judge, U.S. Court of Appeals for the District of
      Columbia Circuit, retired, Waco, Texas.........................   101
        prepared statement...........................................   248
    Tucker, Andrea, parent of students at J.O. Wilson Elementary
      School, Washington, DC.........................................   100
        prepared statement...........................................   253

                                   QUESTIONS

    Questions submitted to Hon. Merrick Brian Garland by:
        Senator Blackburn............................................   375
        Senator Cornyn...............................................   280
        Senator Cotton...............................................   332
        Senator Cruz.................................................   299
        Senator Durbin...............................................   255
        Senator Graham...............................................   278
        Senator Grassley.............................................   258
        Senator Hawley...............................................   328
        Senator Kennedy..............................................   342
        Senator Lee..................................................   284
        Senator Ossoff...............................................   277
        Senator Sasse................................................   326
        Senator Tillis...............................................   343

                                    ANSWERS

    Responses of Hon. Merrick Brian Garland to questions submitted
      by:
        Senator Blackburn............................................   533
        Senator Cornyn...............................................   417
        Senator Cotton...............................................   494
        Senator Cruz.................................................   447
        Senator Durbin...............................................   378
        Senator Graham...............................................   415
        Senator Grassley.............................................   383
        Senator Hawley...............................................   490
        Senator Kennedy..............................................   512
        Senator Lee..................................................   424
        Senator Ossoff...............................................   382
        Senator Sasse................................................   485
        Senator Tillis...............................................   514

      LETTERS RECEIVED BY THE COMMITTEE REGARDING THE NOMINATION OF HON.
       MERRICK BRIAN GARLAND TO BE ATTORNEY GENERAL OF THE UNITED STATES

    Adams, Aileen, Esq., Los Angeles, California, et al.,
      professional and personal advocates for victims and survivors
      of crime at national, State, Tribal, and local levels of
      system- and community-based victim service agencies and
      organizations; January 28, 2021................................   568
    Alaska Wilderness League, Washington, DC, and Anchorage, Alaska,
      et al., members of 20 environmental groups; February 21, 2021..   589
    Alliance for Justice (AFJ), Nan Aron, president, Washington, DC;
      February 21, 2021..............................................   587
    American Federation of Labor and Congress of Industrial
      Organizations (AFL-CIO), William Samuel, director, government
      affairs, Washington, DC; March 1, 2021.........................   622
    Constitutional Accountability Center (CAC), Elizabeth B. Wydra,
      president, Washington, DC; February 24, 2021...................   605
    Everytown for Gun Safety, John Feinblatt, president, New York,
      New York; February 23, 2021....................................   597
    Federal Law Enforcement Officers Association (FLEOA), Larry
      Cosme, national president, Washington, DC; February 17, 2021...   572
    Fraternal Order of Police (FOP), Patrick Yoes, president,
      National Fraternal Order of Police, Washington, DC; February
      10, 2021.......................................................   547
    Freeh, Hon Louis J., former Director, Federal Bureau of
      Investigation, and former Judge, U.S. District Court for the
      Southern District of New York; February 19, 2021...............   592
    Gonzales, Hon. Alberto R., former U.S. Attorney General, Hon.
      Eric Holder, former U.S. Attorney General, and Hon. Loretta E.
      Lynch, former U.S. Attorney General, et al., former U.S.
      Attorneys and other senior U.S. Department of Justice
      officials; March 1, 2021.......................................   624
    International Association of Chiefs of Police (IACP), Cynthia
      Renaud, chief, retired, and president, Alexandria, Virginia;
      February 3, 2020...............................................   544
    James, Letitia, Attorney General, State of New York, New York,
      New York, et al., current State Attorneys General charged with
      defending the rights of their States and their citizens and
      committed to protecting and upholding the rule of law; February
      25, 2021.......................................................   614
    Keating, Hon. Frank, former Governor, State of Oklahoma, and
      former U.S. Associate Attorney General; February 21, 2021......   585
    Kennedy, Mrs. Robert F. et al., relatives of the late Hon. Robert
      F. Kennedy, a former U.S. Attorney General and former U.S.
      Senator from the State of New York.............................   612
    Krinsky, Miriam, executive director, Fair and Just Prosecution
      (FJP), New York, New York; February 23, 2021...................   598
    Leadership Conference on Civil and Human Rights, The, Washington,
      DC, et al., organizations committed to promoting and protecting
      the civil and human rights of all persons in the United States;
      February 25, 2021..............................................   576
    Levi, Hon. David F., former Chief Judge, U.S. District Court for
      the Eastern District of California, and Levi Family Professor
      of Law and director, Bolch Judicial Institute, Duke Law School,
      Durham, North Carolina; February 22, 2021......................   581
    Levi, Hon. John G., board chair, Legal Services Corporation,
      Chicago, Illinois; February 22, 2021...........................   583
    Lewis, Hon. Timothy K., Judge, retired, U.S. Court of Appeals for
      the Third Circuit and U.S. District Court for the Western
      District of Pennsylvania, et al., former Federal judges
      appointed by Republican and by Democrat Presidents and former
      trial attorneys and supervisors of the U.S. Department of
      Justice; February 19, 2021.....................................   557
    Major County Sheriffs of America (MCSA), Sheriff Peter
      Koutoujian, president, Alexandria, Virginia....................   594
    Mosby, Marilyn J., State's Attorney for Baltimore City,
      Baltimore, Maryland, et al., local prosecutors committed to
      criminal justice reform, police reform, and racial justice;
      February 3, 2021...............................................   548
    National Action Network (NAN), Rev. Al Sharpton, founder and
      president, Harlem, New York, and Ebonie Riley, bureau chief,
      Washington, DC; February 12, 2021..............................   555
    National Association of Drug Court Professionals (NADCP), Carson
      Fox, chief executive officer, and the divisions of National
      Drug Court Institute, National Center for DWI Courts, and
      Justice For Vets, Alexandria, Virginia; February 10, 2021......   551
    National Coalition on Black Civic Participation (NCBCP) and Black
      Women's Roundtable, Melanie L. Campbell, president and chief
      executive officer, NCBCP, and convener, Black Women's
      Roundtable, Washington, DC; February 21, 2021..................   620
    National Council of Negro Women (NCNW), Johnnetta Betsch Cole,
      Ph.D., national chair and seventh president, Washington, DC;
      February 11, 2021..............................................   573
    National District Attorneys Association (NDAA), Nancy G. Parr,
      president, Arlington, Virginia; January 8, 2021................   566
    National Education Association (NEA), Marc Egan, director,
      government relations, Washington, DC; March 8, 2021............   633
    National Organization of Black Law Enforcement Executives
      (NOBLE), Dwayne A. Crawford, executive director, Alexandria,
      Virginia; February 16, 2021....................................   554
    National Sheriffs' Association (NSA), Alexandria, Virginia;
      Sheriff David Mahoney, Dane County, Wisconsin, president, NSA;
      and Sheriff Vernon Stanforth, Fayette County, Ohio, chairman,
      Government Affairs Committee, NSA; letter to President Joseph
      R. Biden; February 19, 2021....................................   575
    National Urban League, Marc H. Morial, president and chief
      executive officer, New York, New York; February 11, 2021.......   552
    Newtown Action Alliance, families and survivors directly impacted
      by gun violence, Newtown, Connecticut; February 24, 2021.......   607
    People For the American Way (PFAW), Marge Baker, executive vice
      president for policy and program, Washington, DC; February 23,
      2021...........................................................   600
    Taxpayers Against Fraud (TAF), Joseph E.B. ``Jeb'' White, Esq.,
      president and chief executive officer, Washington, DC; February
      4, 2021........................................................   545
    Terwilliger, Hon. George J., III, former U.S. Deputy Attorney
      General and former Acting U.S. Attorney General, Washington,
      DC; January 21, 2021...........................................   536
    Ujima, Inc.: The National Center on Violence Against Women in the
      Black Community, Karma Cottman, executive director, Washington,
      DC; February 22, 2021..........................................   595
    United States Chamber of Commerce, Neil L. Bradley, executive
      vice president and chief policy officer, Washington, DC;
      February 23, 2021..............................................   596
    U.S. Institute Against Human Trafficking (USIAHT), Kevin Malone,
      chairman, Tampa, Florida; February 22, 2021....................   604
    Woods, Grant, former Attorney General of Arizona, et al., former
      State Attorneys General from across the United States regarding
      U.S. Department of Justice nominees; February 1, 2021..........   538

                    MISCELLANEOUS SUBMISSIONS FOR THE RECORD

    American Civil Liberties Union (ACLU), Cynthia W. Roseberry,
      deputy director for policy, Justice Division, New York, New
      York, correspondence via email, February 18, 2021, letter......   634
    Blackman, Josh, ``Government by Blog Post,'' FIU Law Review,
      Florida International University College of Law, Vol. 11, No. 2
      (Spring 2016), pp. 389-416, article............................   641
    Cardin, Hon. Benjamin L., a U.S. Senator from the State of
      Maryland, February 22, 2021, prepared statement................   669
    Sciutto, Jim, ``The Capitol rioters speak just like the Islamist
      terrorists I reported on: People who feel robbed of their pride
      and purpose can become dangerous,'' The Washington Post,
      February 19, 2021, perspective.................................   672

                              CONFIRMATION HEARING
                              ON THE NOMINATION OF
                           HON. MERRICK BRIAN GARLAND
                             TO BE ATTORNEY GENERAL
                              OF THE UNITED STATES

                                  ----------

                           MONDAY, FEBRUARY 22, 2021

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:30 a.m., in
    Room 216, Hart Senate Office Building, Hon. Richard J. Durbin,
    Chair of the Committee, presiding.
        Present: Senators Durbin [presiding], Leahy, Feinstein,
    Whitehouse, Klobuchar, Coons, Blumenthal, Hirono, Booker,
    Padilla, Ossoff, Grassley, Graham, Cornyn, Lee, Cruz, Sasse,
    Hawley, Cotton, Kennedy, and Blackburn.

              OPENING STATEMENT OF HON. RICHARD J. DURBIN,
               A U.S. SENATOR FROM THE STATE OF ILLINOIS

        Chair Durbin. This hearing will come to order.
        Today the Senate Judiciary Committee will hold a hearing on
    the nomination of Judge Merrick Garland to be the 86th Attorney
    General of the United States. Judge Garland, I want to welcome
    you and your family. I want to welcome you back to the Senate
    Judiciary Committee. I know this return trip has been a long
    time in planning, and you are here finally.
        This will be the Judiciary Committee's first hearing of the
    117th Congress. Before I turn to my opening remarks, I would
    like to just take a few minutes to make some acknowledgements.
        I want to welcome my friend, Senator Chuck Grassley, as the
    Committee's Ranking Member. When I first came on the Senate
    Judiciary Committee 24 years ago, I was the Ranking Member on a
    Subcommittee with you, and we dealt with the issue of
    bankruptcy. Now, Illinois and Iowa sit next to each other, and
    so did Durbin and Grassley. We have our differences, but
    Senator Grassley and I have worked together on important
    legislation over the years, most recently on criminal justice
    and sentencing reform. I look forward to continuing that work
    in this Congress.
        I want to recognize the outgoing Chair and Ranking Member:
    Senator Lindsey Graham, who will join us remotely this morning,
    and Senator Dianne Feinstein.
        Senator Graham, as is true of Senator Grassley, while we do
    not always agree, has always been a welcome partner on many
    issues, including one of the most challenging issues,
    immigration.
        Senator Feinstein I want to commend for leading the
    Committee Democrats with grace and resolve over the past 4
    years. I know she will continue to be an important voice on
    this Committee on a host of issues, including in her new
    capacity as the Chair of the Human Rights and Law Subcommittee,
    which I was proud to chair in past Congresses.
        I also want to welcome our new Committee Members who will
    either be here in person--I see one in person and one probably
    remote: Senators Padilla and Ossoff on the Democratic side,
    Senator Cotton on the Republican side. I look forward to
    working with each of you.
        There are some historic firsts in the Judiciary Committee
    this year.
        Senator Padilla, our new Senator from California, will be
    chairing the Subcommittee on Immigration, Citizenship, and
    Border Safety. I am honored that he is the first Latino Senator
    to chair that Subcommittee, and we look forward to his
    leadership.
        Senator Cory Booker of New Jersey will chair the
    Subcommittee on Criminal Justice and Counterterrorism. He is
    the first Black Senator to chair a Judiciary Subcommittee, and
    we could not imagine a better choice at the helm of this
    particular Subcommittee.
        To all of our other Members who are returning to serve on
    the Committee, welcome back.
        I want to thank all the Committee Members for agreeing to
    hold this Committee hearing and vote on Judge Garland's
    nomination. It is a great honor to serve on this Committee. The
    Senate established the Judiciary Committee by resolution on
    December 10th, 1816, making it among the very first standing
    Committees of the Senate. This Committee has seen many
    consequential debates and approved many important nominations
    and landmark legislation.
        In the Committee's history, there has only been one prior
    Illinois Senator to serve as Chair, Judge Garland: Lyman
    Trumbull, who led the Committee from 1861 to 1872, and during
    his term of service was a Democrat, a Republican, a Radical
    Republican, and a Democrat again. He was the most bipartisan
    Senator you can imagine. His tenure was also distinguished by
    passage of historic legislation: the Thirteenth, Fourteenth,
    and Fifteenth Amendments to the Constitution, the Freedman's
    Bureau Acts of 1865 and 1866, the Civil Rights Act of 1866. The
    last of these was introduced by Trumbull and ultimately became
    the Nation's first civil rights law.
        As Chair, Trumbull saw a Nation torn apart by original
    sin--slavery--and widespread violence and injustice that
    continued even after the Thirteenth Amendment's passage, as
    African Americans throughout the Nation faced racism. Our
    Nation is still dealing with the consequences of these
    injustices. People of color face systemic racism, and we are
    still working to rid this Nation of the horrific legacy of
    slavery and Jim Crow. This Committee can make a difference. We
    have the jurisdiction and the opportunity to do it through
    legislation, oversight, and nominations, including this
    nomination of Merrick Garland to serve as our Nation's next
    Attorney General.
        There have been few moments in history where the role of
    Attorney General and the occupant of that post have mattered
    more. Judge Garland, should you be confirmed, and I have every
    confidence you will be, you will oversee a Justice Department
    at an existential moment. After 4 tumultuous years of intrigue,
    controversy, and brute political force, the future of the
    Department is clearly in the hands of the next Attorney
    General. Under Attorney General Sessions and his successor,
    Bill Barr, the Justice Department literally became an arm of
    the White House, committed to advancing the interests of
    President Trump, his family, and his political allies. It came
    as little surprise then that the U.S. Department of Justice
    became the Trump Department of Justice.
        General Barr stated clearly that he believed the Attorney
    General was the President's lawyer, not the Nation's, and what
    were the results? Too many in the Department's senior roles
    cast aside the rule of law. Trump appointees in the Department
    sidelined career public servants, from line attorneys to FBI
    agents, limited their roles, disregarded their nonpartisan
    input, overriding their professional judgment, and falsely
    accusing them of being members of the deep state. And the
    Department pursued policies of almost unimaginable proportions,
    from separating thousands--thousands--of innocent migrant
    children from their parents to banning innocent Muslims from
    traveling to our shores; from defending and even ordering
    violent crackdowns on peaceful protestors, to parroting
    baseless lies about voter fraud in the lead-up to the 2020
    election.
        The misdeeds of the Trump Justice Department brought this
    Nation to the brink. In fact, as we learned after President
    Biden's inauguration, the senior official in the Trump Justice
    Department, Jeffrey Clark, plotted with President Trump for one
    final stab at the results of the 2020 election. They were
    thwarted at the last minute by Justice Department attorneys who
    threatened to resign en masse rather than join their effort.
        So, Judge Garland, it is no overstatement to say that your
    nomination is one of the most critical in Department history.
    When I reflect on it, I am reminded of two previous Attorneys
    General, one a Democrat, the other a Republican: Robert
    Kennedy, Edward Levi. Kennedy entered office at a time of
    political turmoil. Although the Nation had started down the
    path toward civil rights, Attorney General Kennedy recognized
    that equal rights and equal justice under law were still an
    aspiration for too many people of color in the United States.
        In June 1963, several years into his tenure as AG, Kennedy
    testified before the House Judiciary Committee. He said, ``The
    demonstrations of the past few months have only served to point
    out what thinking Americans have known for years: that this
    country can no longer abide the moral outrage of racial
    discrimination.'' He continued: ``If we fail to act promptly
    and wisely at this crucial point in our history, the ugly
    forces of disorder and violence will surely rise and multiply
    throughout the land--and grave doubts will be thrown on the
    very premise of American democracy.'' The moral outrage of
    racial discrimination remains with us today as do the forces of
    disorder and violence, and, tragically, the Justice Department
    in the previous administration fanned the flames of
    discrimination, but a restored Justice Department, a Department
    under new leadership, can, and, I believe, will, meet the
    moment.
        There are great challenges ahead. The right to vote is
    under constant assault by those who wish to suppress the voices
    of communities of color. We have a criminal justice system
    still in urgent need of reform, and too many Americans, whether
    because of race, national origin, disability, sexual
    orientation, or gender identity, face inequality in their daily
    lives. It is time for the Department of Justice to confront
    these realities that unfortunately continue to threaten, as
    Robert Kennedy said, the very premise of American democracy.
        Judge Garland, when I think of what you face in restoring
    integrity and independence to the Justice Department, I also
    think another--of another one of your predecessors and fellow
    Chicagoan, Edward Levi, who likewise assumed the office at a
    time of turmoil. Levi had, of course, been president of the
    University of Chicago before his nomination to serve as
    Attorney General for President Ford. And when he came before
    this Committee for his confirmation in 1975, he was asked about
    removing the Justice Department from the ambit of partisan
    politics. This is what he said: ``I do not believe that the
    administration of justice should be a partisan matter in any
    sense, but I do not think that cases should be brought to
    reward people or to punish them for partisan reasons.'' He
    continued: ``I think it would be a bad thing for the country to
    believe that the administration of justice was not evenhanded
    because it was in some ways tilted by partisan politics.'' Why
    was this question asked? Why was Levi's response so important?
    Just 2 years earlier, President Nixon had attempted to use the
    Justice Department as his personal law firm, ordering Elliot
    Richardson to fire Archibald Cox, the special prosecutor
    overseeing Watergate. Richardson rightly refused to fire Cox,
    as did his deputy, William Ruckelshaus, and so each of them
    were fired in what became known as the Saturday Night Massacre.
    Richardson and Ruckelshaus refused to act in a way contrary to
    the rule of law. They refused to put partisan politics and the
    personal interests of President Nixon above fidelity to the
    Constitution and the principle of equal justice for all, even
    those who occupy the White House.
        In the wake of Nixon's action when the Justice Department
    faced a reckoning with the Department's legacy still tarnished
    and public confidence shaken, President Gerald Ford turned to
    Levi to restore honor, integrity, and independence. Well, Judge
    Garland, the Nation now looks to you to do the same. The
    public's faith in the Department of Justice has been shaken,
    the result of Department leadership consumed with advancing
    personal and political interests. In fact, had it not been for
    several Justice Department attorneys I mentioned earlier
    threatening to resign this January, President Trump might have
    gone even further than he did to overturn the election results,
    and that raises critical questions this Committee and you must
    reckon with. Judge Garland, we are confident we can rebuild the
    Department's once-hallowed halls, that you can restore the
    faith of the American people in the rule of law and deliver
    equal justice.
        I want to close by returning to the attempt to overturn the
    2020 Presidential election. You probably noticed when you came
    to Capitol Hill how it has changed. You have lived most of your
    life and I have lived a large part of mine coming to this
    Capitol Hill to visit, to work, really to honor the traditions
    of these buildings. We now have established a perimeter around
    this building. It stretches for blocks in every direction, and
    a 10-foot-high fence that walls off this Capitol Building from
    the rest of America. At the top of the fence, barbed wire.
    Inside the fence, we have not only our loyal police force, but
    men and women of the National Guard from all over the United
    States, thousands of them still standing guard over this
    building.
        What a commentary on the current state of America that we
    face today, but it is needed. We were here on January 6th. We
    lived through it. We were lucky. For most of us, we were not in
    direct contact with the mob. Others were and sadly paid a heavy
    price for it. For months, President Trump spread falsehoods
    about the election and fraudulent voting, and before a single
    vote had been cast, he claimed that he can only lose as a
    result of fraud. Far too many Americans gave credence to these
    unproven, dangerous claims. We know the result. We saw the
    attempt to subvert democracy culminating in the events January
    6th when this armed mob stormed the Capitol, sought to disrupt
    the counting of Electoral College votes, violently targeted
    Congress, our colleagues in the House, our families, even the
    Vice President's staff, ultimately causing the senseless deaths
    of Capitol Police Officers Brian Sicknick and Howard
    Liebengood, and D.C. Police Officer Jeffrey Smith.
        When you're confirmed, Judge Garland, you, along with the
    rest of the Nation, will continue to grapple with the January
    6th attacks, but you will be in a unique position with a unique
    responsibility. As the Nation's chief law enforcement officer,
    you will be tasked with a solemn duty to responsibly
    investigate the events of that day, to prosecute all of the
    individuals responsible, and to prevent future attacks driven
    by hate, inflammatory words, and bizarre conspiracy theories.
        You know what it is like. You have been there before. You
    have seen domestic terrorism. You led the investigation and
    prosecution of the Oklahoma City bombing, and in doing so, made
    the Nation safer and bought some measure of peace and healing
    to the victims and their families. I am confident that, given
    this prior experience, you are up to the task the Department
    now faces in the wake of January 6th. In fact, I can think of
    few people better suited to do it.
        I look forward to hearing your testimony, but at this
    point, I will turn to my colleague, Senator Grassley.

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

        Senator Grassley. Thank you, Senator Durbin.
        Welcome to Judge Garland. I am glad that you have been
    honored with this appointment to be Attorney General of the
    United States. Welcome, the public at large, most of them very
    remote, not the large crowds we normally have when we have an
    Attorney General nominee come before this Committee.
        I have a longer statement that I will put in the record,
    and I have still got plenty to say even this morning. I, of
    course, congratulate Senator Durbin on his new role as
    Chairman. He has already referred to he and I getting
    acquainted on the Administrative Oversight Subcommittee and
    working on what now is badly needed law when agriculture is in
    bad shape, bypassing Chapter 12 agricultural bankruptcy
    legislation, and I look forward to working with you in the
    future here. And I also want to express my admiration for
    Senator Feinstein, the previous Democrat Leader of this
    Committee. She and I have worked closely together during the
    years that I chaired and she was Ranking Member, and I thank
    you for your leadership.
        I would also like to say a word about Judge Garland. This
    is, of course, Judge Garland's first time appearing before this
    Committee since ascending to the Federal bench. I had something
    to do with that. After the death of Justice Scalia, my
    Republican colleagues and I decided not to hold a hearing on
    his nomination; in other words, meaning Judge Garland's
    nomination to the Supreme Court, having been nominated by
    President Obama. As you recall, it was an election year with a
    divided Congress. The position I took was consistent with
    previously publish--publicly expressed positions by other
    Senators and Democratic Senators previous to that. So, yes, it
    is true that I did not give Judge Garland a hearing. I also did
    not mischaracterize his record. I did not attack his character.
    I did not go through his high school yearbook. I did not make
    his wife leave the hearing in tears. I took a position on
    hearings, and I stuck to it, and that is it. I admire Judge
    Garland's public service. Just because I disagreed with anyone
    being nominated did not mean that I had to be disagreeable to
    that nominee. Unfortunately, that is not always the way it
    works in this town that has great political division.
        Judge Garland is here, and we are here to talk about his
    nomination to be Attorney General, and I extend a warm welcome
    to you, Judge Garland, and your family and friends that are
    probably very honored because of your nomination. This, of
    course, is a worthy capstone on a storied career that you have
    had. Judge Garland is a good pick to lead the Department of
    Justice. He has decades of experience as one of the most
    respected appellate judges in the country, and, before that,
    being a great prosecutor. When the domestic terrorist, Timothy
    McVeigh, was executed for his crimes, we had Merrick Garland to
    thank for that successful prosecution.
        No one doubts that Judge Garland is qualified for his job,
    but, of course, an Attorney General is more than just
    qualifications. The top law enforcement officer of the United
    States must be committed to enforcing the rule of law. As our
    former colleague and former Attorney General, John Ashcroft,
    likes to say, ``The Department of Justice is the only Cabinet
    agency whose name is an ideal.'' It is not the Department of
    Law Enforcement, but the Department of Justice. Justice is
    equality under the law. There is one law for all Americans
    regardless of race, color, creed, or connection. Is Judge
    Garland up to that task? I think he is, but today our goal is
    to ask him questions to find out.
        The Department of Justice has taken important steps to live
    up to these ideals expressed by Attorney General Ashcroft, and
    I think they have done well in that direction, particularly
    over the last 4 years. The Department has undertaken many
    successful initiatives to reduce violent crime in all
    communities. It has sought to maintain the rule of law by
    reforming consent decrees, guidance documents, and ``sue and
    settle'' abuse. It has protected our civil liberties, in
    particular, defending our religious liberties, and pursuing
    Elder Justice. I hope that the Department of Justice continues
    these initiatives under you, Judge Garland.
        What I do not want is a return to the Obama years. I do not
    want an Attorney General who bragged about being a wingman, and
    those are his words, to the President. That was Eric Holder
    notoriously describing himself. I do not want a Justice
    Department that abuses the FISA process to spy on American
    citizens. I do not want consent decrees that federalize law
    enforcement and cause murder rates to soar. I do not want a
    return to catch-and-release on the border. I could come up with
    many other examples.
        Unfortunately, a lot of what we have seen so far from the
    Justice Department is discouraging. They have whiplashed
    inducing changes to litigation positions. They are going
    through rescinding excellent rule of law memorandums right out
    of the gate. President Biden is even reportedly firing nearly
    every Senate-confirmed U.S. Attorney regardless of what
    investigations they are supervising. That is troubling. That is
    why I am especially concerned about the Durham investigation.
        Starting January 2017, I began an investigation on how the
    Justice Department and the FBI handled Crossfire Hurricane, its
    investigation into the Trump campaign and administration.
    Simply said, Crossfire Hurricane is a textbook example of what
    should not happen during investigations. What the Obama
    administration did to the Trump campaign transition and
    administration cannot ever happen again. If confirmed, you will
    have oversight of Special Counsel Durham's review of Crossfire
    Hurricane. When Bill Barr appeared before the Committee for his
    nomination hearing, he said, ``It is vitally important that a
    Special Counsel be allowed to complete his investigation.'' Of
    course, he was referring to then-Special Counsel Mueller's
    investigation. Today, you will need to be clear about what your
    position will be with regard to Special Counsel Durham. We
    should expect the same level of commitment from you to protect
    Durham as we expected from Barr to protect Mueller.
        So, Judge Garland, I just want to say that I like you, I
    respect you, and I think you are a good pick for this job, but
    I have a lot of questions about how--about how you are going to
    run the Department of Justice.
        Thank you, Mr. Chairman.
        Chair Durbin. Thank you, Senator Grassley.
        At this time, we will have a formal introduction of Judge
    Garland. Two of our colleagues will be doing that. Because of
    your State of residence, Senator Chris Van Hollen of Maryland
    will be first, and because of your roots, Senator Tammy
    Duckworth, my colleague of Illinois, will be second. Both are
    joining us by Webex. There will be a statement made by Senator
    Cardin placed in the record.
        [The prepared statement of Senator Cardin appears as a
    submission for the record.]
        Chair Durbin. Senator Van Hollen.

       INTRODUCTION OF HON. MERRICK BRIAN GARLAND, NOMINEE TO BE
    ATTORNEY GENERAL OF THE UNITED STATES, BY HON. CHRISTOPHER VAN
           HOLLEN, A U.S. SENATOR FROM THE STATE OF MARYLAND

        Senator Van Hollen. Thank you, Mr. Chairman. Let me thank
    you, and Ranking Member Grassley, and all of our colleagues on
    the Senate Judiciary Committee for being here today. And I am
    really grateful for the opportunity to introduce the
    President's nominee for Attorney General, Judge Merrick
    Garland, who is not only a fellow Marylander, but somebody who
    I have known personally for many years. And I know that
    President Biden has picked a nominee with impeccable
    credentials and an unimpeachable character.
        His experience stretches from the halls of the Justice
    Department to the Chambers of the U.S. Court of Appeals for the
    District of Columbia Circuit, and he embodies the decency, the
    impartiality, and the commitment to justice that our Nation
    deserves as the Attorney General of the United States. I am
    confident that if confirmed, Judge Garland will serve admirably
    and faithfully as the next Attorney General, and I am proud to
    present him to you and the Committee on behalf of myself, but
    also Senator Cardin, who, as you mentioned, Mr. Chairman, is
    fully in support of this nomination, but could not join us
    because of a scheduling conflict.
        The Nation already knows Merrick Garland because of his
    Supreme Court nomination and as the former judge at the U.S.
    Court of Appeals for the District of Columbia Circuit, where he
    earned a reputation as one of our Nation's finest and fairest
    jurists. But his tenure on the D.C. Circuit was just the most
    recent achievement in a life dedicated to serving the rule of
    law. After excelling at law school, Judge Garland clerked for
    the Second Circuit Court of Appeals and then for the Supreme
    Court. He then rose through the ranks of a prominent law firm
    before jumping back into public service, feet first, as a
    Federal prosecutor in the U.S. Attorney's Office during the
    administration of President George Herbert Walker Bush, and
    then later served as the Principal Associate Deputy Attorney
    General at the Department of Justice.
        As a senior DOJ official, Judge Garland was tasked with
    overseeing the case of the Oklahoma City bombing, one of the
    deadliest domestic terrorist attacks in American history. It
    left 168 Americans dead and hundreds more injured. Merrick
    Garland brought a steady hand to an operation that involved
    massive amounts of evidence, pressure from the public, and a
    large team with diverse skills and backgrounds. With fidelity
    to the law, meticulous attention to detail, and unrelenting
    focus, Merrick Garland helped bring the bomber, Timothy
    McVeigh, to justice. He has called this case the most important
    thing he has done in his life.
        Mr. Chairman, Ranking Member, and Committee Members, we are
    going to need his experience as we once again confront the rise
    of domestic terrorism, particularly in the wake of the horrific
    events of January 6th. And the next Attorney General must not
    only take on the rise of white supremacist and radical militia
    groups, but also ensure that justice is rendered equally and
    fairly by promoting and ensuring racial equity, rooting out
    discrimination in our criminal justice system, addressing
    police reform, and ensuring that we do not see a concerted
    effort to limit people's, citizens' right to vote in the United
    States of America.
        As Judge Garland has himself stated, ensuring the rule of
    law and making real the promise of equal justice under the law
    are ``the great principles upon which the Department of Justice
    was founded and for which it must always stand.'' Judge Garland
    has spent his career doing both, and I have no doubt he will
    honor that tradition as Attorney General. While his
    professional experiences have prepared him for this job, it is
    his character that makes him right for this moment. Should he
    be confirmed, Judge Garland will be charged with restoring
    credibility and independence to the Department of Justice,
    making it clear that the Department is not the political
    instrument of the White House. I know Merrick Garland is up to
    the task.
        The lengthy list of testimonials speaking to his fairness
    and sound judgment span the political spectrum. He is respected
    by lawmakers, scholars, and lawyers of every legal persuasion
    and political philosophy. And on a personal note, I can attest
    to the fact that his brilliance is matched by his kindness. His
    many achievements have never gone to his head. He has always
    stayed humble and treated everyone with respect. Mr. Chairman,
    Ranking Member, Members of the Committee, it is for these
    reasons and many more that I am honored to present to you the
    President's nominee to serve as the next Attorney General of
    the United States, Judge Merrick Garland. Thank you.
        Chair Durbin. Thank you, Senator Van Hollen.
        And now I am calling on my colleague and friend from
    Illinois, Senator Tammy Duckworth.

       INTRODUCTION OF HON. MERRICK BRIAN GARLAND, NOMINEE TO BE
    ATTORNEY GENERAL OF THE UNITED STATES, BY HON. TAMMY DUCKWORTH,
               A U.S. SENATOR FROM THE STATE OF ILLINOIS

        Senator Duckworth. I thank the Chairman. Thank you so much
    for this opportunity to introduce President Biden's nominee to
    serve as the next Attorney General of the United States. We in
    Illinois also claim Merrick Garland as a son of our State. He
    possesses the brilliance and the resilience, the experience and
    intellect, the expertise and integrity necessary to serve
    effectively as our next Attorney General. I am especially
    honored to be here today because I have full confidence in his
    capability to lead the Department of Justice in an independent
    and impartial manner. And he will defend the civil and
    constitutional rights of all Americans, no matter what they
    look like, who they love, how they pray, or their disability
    status.
        Judge Garland hails from our home State of Illinois, Mr.
    Chairman. His father ran a small business out of his home, and
    his mother directed volunteer services at the Council for
    Jewish Elderly in Chicago. After graduating valedictorian at
    Niles West High School in Skokie, he won scholarships for both
    college and law school. He then graduated from Harvard
    University in 1974 and Harvard Law School in 1977. His breadth
    of experience stems in part from his time in private practice
    and judicial clerkships. He clerked for Judge Henry Friendly on
    the Second Circuit and Justice William Brennan on the United
    States Supreme Court. However, his commitment to public service
    is perhaps even more clearly demonstrated by his successful
    tenure at the Department of Justice and his current seat on the
    United States Court of Appeals for the District of Columbia
    Circuit.
        In 1979, Judge Garland joined the DOJ as a special
    assistant, and then, after a brief stint in private legal
    practice, led the Department as the Principal Associate Deputy
    Attorney General in 1997. During his tenure, which spanned both
    Republicans and Democratic administrations, he led multiple
    high-profile investigations, working on a number of issues,
    including criminal, civil, antitrust, appellate, espionage, and
    national security measures. He gained valuable experience as a
    prosecutor by trying and supervising numerous prosecutions and
    appeals. Notably, he played a key role in the prosecution of
    the Oklahoma City bombers, as has been previously noted.
        Following his career at DOJ, the United States Senate
    confirmed his nomination for a lifetime appointment to serve on
    the D.C. Circuit. Judge Garland authored hundreds of opinions
    that addressed disability rights, criminal justice, and voting
    rights, among other issues, issues that affect Americans at
    every mile and every corner of this country. As a judge, he
    joined a unanimous panel decision that upheld a Department of
    Labor regulation requiring contractors to comply with the
    Rehabilitation Act of 1973. This decision upheld regulations
    that sought to protect employment opportunities for individuals
    living with a--with a disability like myself. It is this legacy
    of public service that gives me confidence that, if confirmed
    to be our Nation's chief law enforcement officer, Judge Garland
    will not only modernize and strengthen enforcement of the
    Americans with Disabilities Act, but will restore integrity and
    lift morale throughout the DOJ.
        Judge Garland is ready to defend the constitutional and
    civil rights that our Nation so deeply values, and I know he
    will make all of us Illinoisans proud as our country's next
    Attorney General. Thank you.
        [The prepared statement of Senator Duckworth appears as a
    submission for the record.]
        Chair Durbin. Thank you, Senator Duckworth.
        Judge Garland, will you please stand to be sworn?
        [Nominee is sworn in.]
        Chair Durbin. Thank you.
        Before I turn to my questions, I think there is another
    element in the program here, your testimony. Let me turn to
    Judge Garland.

     STATEMENT OF HON. MERRICK BRIAN GARLAND, NOMINEE TO SERVE AS
                 ATTORNEY GENERAL OF THE UNITED STATES

        Judge Garland. Thank you, Mr. Chairman, Mr. Ranking Member,
    and Members of the Judiciary Committee. I am honored to appear
    before you today as the President's nominee to be the Attorney
    General.
        I would like first to take this opportunity to introduce
    you to my wife, Lynn; my daughters, Jessie and Becky; and my
    son-in-law, Xan. I am grateful to them and to my entire
    extended family that is watching today on C-SPAN every day of
    my life.
        The President nominates the Attorney General to be the
    lawyer not for any individual, but for the people of the United
    States. July 2020 marked the 150th anniversary of the founding
    of the Department of Justice, making this a fitting time to
    remember the mission of the Attorney General and of the
    Department. It is a fitting time to reaffirm that the role of
    the Attorney General is to serve the rule of law and to ensure
    equal justice under law. And it is a fitting time to recognize
    the more than 115,000 career employees of the Department and
    its law enforcement agencies, and their commitment to serve the
    cause of justice and protect the safety of our communities. If
    I am confirmed as Attorney General, it will be the culmination
    of a career I have dedicated to ensuring that the laws of our
    country are fairly and faithfully enforced and the rights of
    all Americans are protected.
        Before I became a judge almost 24 years ago, a significant
    portion of my professional life was spent at the Justice
    Department as a special assistant to Ben Civiletti, the last of
    the trio of post-Watergate Attorneys General, as a line
    assistant U.S. Attorney, as a supervisor in the Criminal
    Division, and, finally, as a senior official in the Department.
    Many of the policies that the Justice Department developed
    during those years are the foundation for reaffirming the norms
    that will ensure that the Department adheres to the rule of
    law. These are policies that protect the independence of the
    Department from partisan influence in law enforcement, that
    strictly regulate communications with the White House, that
    establish guidelines for FBI domestic operations and foreign
    intelligence collection, that ensure respectful treatment of
    the Press, that read the Freedom of Information Act generously,
    that respect the professionalism of DOJ's employees, and that
    set out principles of Federal prosecution to guide the exercise
    of prosecutorial discretion.
        In conversations that I have had with many of you before
    this hearing, you have asked why I would agree to leave a
    lifetime appointment as a judge. I have told you that I love
    being a judge, but I have also told you that this is an
    important moment for me to step forward because of my deep
    respect for the Department of Justice and for its critical role
    of ensuring the rule of law.
        Celebrating DOJ's 150th year reminds us of the origins of
    the Department, which was founded during Reconstruction in the
    aftermath of the Civil War, to secure the civil rights that
    were promised in the Thirteenth, Fourteenth, and Fifteenth
    Amendments. The first Attorney General appointed by President
    Grant to head the new Department led it in a concerted battle
    to protect Black voting rights from the violence of white
    extremists, successfully prosecuting hundreds of cases against
    white supremacist members of the Ku Klux Klan. Almost a century
    later, the Civil Rights Act of 1957 created the Department's
    Civil Rights Division, with the mission to uphold the civil and
    constitutional rights of all Americans, particularly some of
    the most vulnerable members of our society.
        That mission on the website of the Department's Civil
    Rights Division remains urgent because we do not yet have equal
    justice. Communities of color and other minorities still face
    discrimination in housing, in education, in employment, and in
    the criminal justice system, and they bear the brunt of the
    harm caused by the pandemic, pollution, and climate change. One
    hundred fifty years after the Department's founding, battling
    extremist attacks on our democratic institutions also remains
    central to the Department's mission.
        From 1995 to 1997, I supervised the prosecution of the
    perpetrators of the bombing of the Oklahoma City Federal
    Building, who sought to spark a revolution that would topple
    the Federal Government. If confirmed, I will supervise the
    prosecution of white supremacists and others who stormed the
    Capitol on January 6th, a heinous attack that sought to disrupt
    a cornerstone of our democracy: the peaceful transfer of power
    to a newly elected Government.
        And that critical work is but a part of the broad scope of
    the Department's responsibilities. The Justice Department
    protects Americans from environmental degradation and the abuse
    of market power, from fraud and corruption, from violent crime
    and cybercrime, and from drug trafficking and child
    exploitation, and it must do all of this without ever taking
    its eye off of the risk of another devastating attack by
    foreign terrorists. The Attorney General takes an oath to
    support and defend the Constitution of the United States
    against all enemies, foreign and domestic.
        I am mindful of the tremendous responsibility that comes
    with this role. As Attorney General, later Supreme Court
    Justice Robert Jackson, famously said: ``The prosecutor has
    more control over life, liberty, and reputation than any other
    person in America. While prosecutors at their best are one of
    the beneficent forces in our society, when they act from malice
    or other base motives, they are one of the worst.'' Jackson
    then went on to say: ``The citizen's safety lies in the
    prosecutor who tempers zeal with human kindness, who seeks
    truth and not victims, who serves the law and not factional
    purposes, and who approaches the task with humility.'' That was
    the prosecutor I tried to be during my prior service in the
    Department of Justice. That is the spirit I tried to bring to
    my tenure as a Federal judge. And if confirmed, I promise to do
    my best to live up to that ideal as Attorney General. Thank
    you.
        [The prepared statement of Judge Garland appears as a
    submission for the record.]
        Chair Durbin. Thank you, Judge Garland.
        Before I turn to my questions, I want to lay out a few
    mechanics for the hearing. Senators will have 8 minutes in the
    first round of questions, followed by a 5-minute second round,
    and I ask Members to do their best to stay within their
    allotted of time. We will take a break every once in a while
    for 10 minutes. I am hoping the first will be sometime near 11.
    At about 12:15 or 12:30, we will break for lunch for 30
    minutes. I beg you to stick with that schedule if you can and
    be back in time so that we can keep the hearing moving along.
        So let me at this point turn to questions.
        You were sent to Oklahoma City in 1995. What happened there
    was the deadliest act of homegrown domestic terrorism in modern
    American history. A hundred and sixty-eight people had been
    killed, including 19 children. Hundreds were injured. You were
    supervising the prosecution of Timothy McVeigh and Terry
    Nichols, who were accused of being complicit in leading that
    destruction. Now, if you are confirmed as Attorney General,
    which I believe you will be, you will face what is known as the
    biggest, most complex investigation in Justice Department
    history, and that is the investigation around the events of
    January 6th. Two hundred and thirty have been arrested so far.
    Some 500 are under investigation. We know that the death of at
    least one police officer is one of the major elements in this
    investigation.
        I would like to ask you to reflect on two things. What is
    going on in America? Was Oklahoma City just a one-off unrelated
    to what happened here? Can you measure, based on what you have
    learned so far, what kind of forces are at work to divide and
    destroy the American Dream? Second, when it comes to this
    prosecution, are there elements that we should consider in
    terms of law enforcement to deal with this rising threat to the
    American democracy?
        Judge Garland. Thank you, Senator. Thank you very much for
    the opportunity to address the Committee today. I am grateful
    for this opportunity.
        I do not think that this is necessarily a one-off. FBI
    Director Wray has indicated that the threat of domestic
    terrorism, and particularly of white supremacist extremists, is
    his number one concern in this area. This is coupled with an
    enormous rise in hate crimes over the past few years. There is
    a line from Oklahoma City, and there is another line from
    Oklahoma City all the way back to the experiences that I
    mentioned in my opening with respect to the battles of the
    original Justice Department against the Ku Klux Klan. We must
    do everything in the power of the Justice Department to prevent
    this kind of interference with the policies of American
    democratic institutions, and I plan, if you now confirm me for
    Attorney General, to do everything in my power to ensure that
    we are protected.
        Chair Durbin. Judge Garland, it goes without saying, but we
    ought to make it a record, we abhor violence whether it comes
    from the right or left, whatever its source. It has no place in
    responsible constitutional dialogue in America. Currently,
    though, we are faced with elements that were not there 25 years
    ago in Oklahoma City: a proliferation of weapons; second,
    social media and the internet which serves as a gathering place
    for many of these domestic terrorists. What are your thoughts
    about how we should deal with those elements from the law
    enforcement viewpoint?
        Judge Garland. Well, Mr. Chairman, I certainly agree that
    we are facing a more dangerous period than we faced in Oklahoma
    City, than at that time. From what I have seen, and I have no
    inside information about how the Department is developing its
    work, it looks like an extremely aggressive and perfectly
    appropriate beginning to an investigation all across the
    country in the same way our original Oklahoma City
    investigation was, but many times more. I do not yet know what
    additional resources would be required by the Department, but I
    can assure you that this will be my first priority and my first
    briefing when I return to the Department, if I am confirmed.
        Chair Durbin. Judge Garland, several years ago, I went to
    an immigration court hearing in downtown Chicago. It was in a
    high-rise Loop building. I met the immigration court judge. She
    had been on the job almost 20 years and seemed like a very
    conscientious and fair person. She asked me to stay for the
    docket call, particularly for the first clients on the docket.
    The first clients on the docket were a 4-year-old girl named
    Marta. When the judge asked that all of the people in the
    courtroom be seated, she had to be helped into the chair. It
    was too tall for her to get into. She was handed a stuffed
    animal to hold during the hearing. At the same table was a
    young boy with the unlikely name Hamilton, who was given a
    little Matchbox car, which he played with on top of the table.
    He was 6 years old. They were the victims of the Zero Tolerance
    Policy. We remember it well. Thousands of children were
    forcibly removed from their parents, separated and many times
    lost in the bureaucracy.
        Some have incorrectly stated that that administration
    policy by the Trump administration was just a continuation of
    Obama-era policy. That is not true. The Obama administration
    did not have policies that resulted in the mass separation of
    parents and children, and on rare occasion separations
    occurred, this was due to suspicion of trafficking or fraud,
    not because of an intentional, cruel policy to separate
    children.
        The Justice Department's Inspector General conducted an
    investigation of the Zero Tolerance Policy and noted that the
    Justice Department was ``the driving force'' in that policy.
    There are still a lot that we do not know about that policy and
    the accountability for the officials who were responsible for
    it, so let me ask you this. This Committee is going to hold
    oversight hearings to get to the bottom of it. Will you commit
    to cooperate with those investigations?
        Judge Garland. Senator, I think the oversight
    responsibility of this Committee is one of its very most
    important things. It is a duty imposed by the Constitution, and
    I greatly respect it. I think that the policy was shameful. I
    cannot imagine anything worse than tearing parents from their
    children, and we will provide all of the cooperation that we
    possibly can.
        Chair Durbin. I thank you for that. When it comes to
    congressional oversight, this Committee has a role in restoring
    independence and integrity to the Justice Department through
    oversight hearings. It has a longstanding tradition of holding
    annual Justice Department oversight hearings, but sadly, it has
    been 3 years since the Attorney General has been called before
    this Committee. I pledge that as Chair, I will hold annual DOJ
    oversight hearings where Members from both sides of the aisle
    can ask important questions of you in that capacity. I do not
    want to go into detail, but I would ask you obviously, would
    you agree to cooperate in that commitment to oversight hearing?
        Judge Garland. Of course, if I am confirmed, I will
    certainly cooperate.
        Chair Durbin. And when requests are made for information by
    Members of the Committee, I hope that I can also have your
    commitment to cooperation in providing timely answers.
        Judge Garland. Yes, Mr. Chairman, we will be as responsive
    as we possibly can. As I said, I have great respect for and
    belief in the oversight role of this Committee.
        Chair Durbin. Thank you.
        Senator Grassley.
        Senator Grassley. Yes. Since you are a currently sitting
    judge, you are bound by the Code of Conduct of U.S. Judges.
    Nevertheless, I hope that we can get frank answers from you on
    your views. And when we talked last on the phone, you told me
    you would get guidance from the Administrative Office on what
    you can or cannot say. I assume that you sought that guidance.
    If so, what did they advise you?
        Judge Garland. Yes, Senator Grassley, I did. And they
    advised me just as you and I thought that they would. Canon 3
    bars me from commenting on any pending or impending case that
    is in any court, but I am free to talk about policy with you.
        Senator Grassley. Okay. I am going to go to the Durham
    investigation. At Barr's hearing, he stated the following in
    regard to Mueller's investigation, ``It is vitally important
    that the Special Counsel be allowed to complete his
    investigation.'' Also at that same hearing, Senator Feinstein
    asked, ``Will you commit to providing Mr. Mueller with the
    resources, funds, and time needed to complete his
    investigation? '' Attorney General Barr answered Senator
    Feinstein with a one word ``yes.''
        With respect to Special Counsel Durham's investigation, I
    expect that he will be allowed to complete his investigation.
    If confirmed, will you commit to providing Special Counsel
    Durham with the staff, resources, funds, and time needed to
    thoroughly complete the investigation?
        Judge Garland. Well, Senator, I do not have any information
    about the investigation as I sit here today, and another one of
    the very first things I am going to have to do is speak with
    Mr. Durham, figure out how his investigation is going. I
    understand that he has been permitted to remain in his
    position. And sitting here today, I have no reason to think
    that that was not the correct decision.
        Senator Grassley. Okay. And I suppose that would be an
    answer that he would only be removed for cause then? Would that
    be your position?
        Judge Garland. Well, Senator, I really do have to have an
    opportunity to talk with him. I have not had that opportunity.
    As I said, I do not have any reason from what I know now, which
    is really very little, to make any determination on that
    ground. But I do not have any reason to think that he should
    not remain in place.
        Senator Grassley. If confirmed, would you commit to
    publicly releasing Special Counsel Durham's report, just like
    Mueller's report was made public?
        Judge Garland. So, Senator, I am a great believer in
    transparency. I would, though, have to talk with Mr. Durham and
    understand the nature of what he has been doing and the nature
    of the report. But I am a big--very much committed to
    transparency and to explaining Justice Department
    decisionmaking.
        Senator Grassley. At this point, I am not going to take
    exception to the answers you gave me about Durham because I
    think you are an honorable person. They are not quite as
    explicit as I hoped they would be, like we got from Barr for
    the Mueller investigation, but I think you have come close to
    satisfying me, but maybe not entirely.
        We are in the midst of a polydrug crisis. In addition to
    opioids, methamphetamine, and cocaine, fentanyl and fentanyl
    analogs are plaguing our country. Increasingly, sophisticated
    drug trafficking organizations, both domestic and
    internationally, try to skirt the law by changing their
    molecular structure. So the Centers for Disease Control has
    found that drug overdose deaths rose to their highest level
    ever measured during the pandemic, with the overall jump in
    deaths being driven most substantially by drugs like fentanyl.
        We must stop this fentanyl substance from entering our
    neighborhoods and killing thousands of Americans. So my
    question is, as you lead the Justice Department, having
    oversight over the Drug Enforcement Administration within that
    Department, and they will be addressing the spread of fentanyl
    analogs and related substances by pushing for continued class-
    wide prohibition of fentanyl.
        So I did not quite make my question clear. Would you lead
    the Justice Department in pushing for continued class-wide
    prohibition of fentanyl analogs?
        Judge Garland. Senator, I am familiar with this problem.
    One of my roles as the Chief Judge of the D.C. Circuit was to
    serve on the Pretrial Services Committee--the committee for the
    Pretrial Services Agency for the District. And we were
    constantly advised of the fact that the formula was being
    slightly changed constantly, and this was a problem both for
    detection as well as for the problem of enforcement.
        To be honest, I am no chemist. This is one of the reasons I
    ended up being a lawyer instead of a doctor. But I would need
    to look at what would be proposed. But I do understand the
    scope of this problem, and I am in favor of doing something
    either by scheduling or legislation, if I am confirmed, that
    would address the problem that you are talking about, which is
    an enormous problem for enforcement.
        Senator Grassley. I want to go to the death penalty because
    we have some people already prosecuted where the death penalty
    has been advocated or sought, and one of those is the people
    that were involved in the Boston Marathon. So the question, the
    Justice Department, again under the Obama administration,
    sought and received an appropriate sentence of death. That
    sentence is currently being appealed. Will you commit to
    defending these sentences on appeal?
        Judge Garland. Well, Senator, this--now we are rubbing up
    against exactly the problem that you asked me about in the
    beginning. These are pending cases, and as a sitting judge, the
    Canons bar me from making comment on pending cases.
        Senator Grassley. My last question will have to deal with
    the investigation that is underway by some of us in Congress
    about Hunter Biden. Have you discussed the case with the
    President or anyone else?
        And I do not expect you to discuss your private
    conversation with the President, but Members of this Committee
    always ask judges or other people what your--did you discuss
    with the President, for instance, your position on abortion. So
    have you discussed this Hunter Biden case with the President or
    anyone else?
        Judge Garland. I have not. The President made abundantly
    clear in every public statement before and after my nomination
    that decisions about investigations and prosecutions will be
    left to the Justice Department. That was the reason that I was
    willing to take on this job, and so the answer to your question
    is no.
        Senator Grassley. Okay, thank you.
        Chair Durbin. Thanks, Senator Grassley.
        Senator Leahy would be next, but he is outside of the
    jurisdiction of Zoom at the moment. I guess that is
    appropriate. And so Senator Feinstein will be recognized.
        Senator Feinstein. Thank you very much, Mr. Chairman.
        And welcome, Judge. Throughout your career, you have been
    praised by people on both sides of the aisle. When you were
    nominated to the Supreme Court, President Obama said you were
    ``someone who would bring a spirit of decency, modesty,
    integrity, evenhandedness, and excellence.''
        Similarly, Senator Orrin Hatch called you ``a fine man''
    who would be a ``moderate choice for the Court.'' Even Carrie
    Severino of the conservative Judicial Crisis Network once
    called you ``the best scenario we could hope for to bring the
    tension and the politics in the city down a notch.''
        At a time when America feels more polarized than ever
    before, this sort of bipartisanship is truly rare. So I ask
    this question. Can all Americans, regardless of their political
    affiliation, count on you to faithfully and fairly enforce our
    laws?
        Judge Garland. Yes, Senator. That is my personality. That
    is everything I have done in my career. And that is my vision
    for the Justice Department, to dispense the law fairly and
    impartially without respect to persons and without respect to
    political parties.
        Senator Feinstein. Thank you for that statement.
        On January 6th, a group of white supremacists launched a
    terrorist attack on our Capitol in an attempt to overturn the
    results of a democratic election. Their attempt failed and
    resulted in at least five fatalities, including a Capitol
    Police officer. It also led Federal prosecutors to file over
    180 charges and initiate 25 domestic terrorism cases.
        So this is not the first time the Justice Department has
    been forced to investigate and prosecute white supremacists for
    an act of terrorism. You received high praise for investigating
    and supervising the prosecution of the Oklahoma City bombing
    perpetrators in 1995. So here is the question. What steps will
    you take to ensure that the perpetrators of the attack on our
    Capitol are brought to justice?
        Judge Garland. Senator, I think this was the most heinous
    attack on the democratic processes that I have ever seen and
    one that I never expected to see in my lifetime. One of the
    very first things I will do is get a briefing on the progress
    of this investigation. I intend to give the career prosecutors
    who are working on this matter 24/7 all of the resources they
    could possibly require to do this, and at the same time, I
    intend to make sure that we look more broadly to look at where
    this is coming from, what other groups there might be that
    could raise the same problem in the future and that we protect
    the American people.
        And I know that the FBI Director has made the same
    commitment.
        Senator Feinstein. Thank you for that answer.
        Over the last 4 years, the independence of the Attorney
    General has been repeatedly attacked. For example, President
    Trump once told The New York Times, ``I have the absolute right
    to do what I want to do with the Justice Department.''
        Do you believe that, in fact, the President does have the
    absolute right to do what he wants with the Justice Department?
        Judge Garland. The President is constrained by the
    Constitution, as are all Government officials. The issue here
    for us are the set of norms and standards to which this
    President, President Biden, has agreed, that he will not
    interfere with the Justice Department with respect to its
    prosecutions and investigations. Those decisions will be made
    by the Department itself and by--led by the Attorney General,
    and that they will be without respect to partisanship, without
    respect to the power of the perpetrator or the lack of power,
    without respect to the influence of the perpetrator or the lack
    of influence.
        In all of those respects, the Department will be
    independent. The Department is a part of the executive branch,
    and for that reason, on policy matters, we follow the lead of
    the President, of the administration, as long as it is
    consistent with the law.
        And the role of the Department is to advise the President
    and the administration and the other agencies about what is
    consistent with the law. That is our obligation, and we will do
    so objectively, based only on our reading of the law.
        Senator Feinstein. Well, thank you for that. I think you
    have laid it out clearly and directly, and it is very much
    appreciated.
        If the President's interest and the public's interest are
    in conflict, which interest does the Attorney General
    represent?
        Judge Garland. The Attorney General represents the public
    interest, particularly and specifically as defined by the
    Constitution and the statutes of the United States.
        Senator Feinstein. Do you believe that the President has
    the authority to order the Attorney General to open or close an
    investigation or prosecution?
        Judge Garland. This is a hard question of constitutional
    law, but I do not expect it to be a question for me. As I just
    said to you, the President has promised that those decisions
    will only be made by the Attorney General, and that is what I
    plan to do. I do not plan to be interfered with by anyone. I
    expect the Justice Department will make its own decisions in
    this regard.
        Senator Feinstein. Well, thank you.
        I am going to cease at this time, but I just want to say
    that I think you have had a remarkable career. You have done
    very special things and always in a very reasonable, sober,
    penetrating way. So I just want to say thank you for that.
        Judge Garland. I am grateful, Senator. Thank you for that.
        Senator Feinstein. Thank you, Mr. Chairman.
        Chair Durbin. Thank you, Senator Feinstein.
        We hope that Senator Graham, who is next up, is ready.
        Senator Graham.
        Senator Graham. Can you hear me?
        Chair Durbin. We can hear you. You have 8 minutes.
        Senator Graham. Great. Yes, sir. Congratulations to you.
        And Judge Garland, congratulations on your appointment. I
    think you are a very good pick for this job. So I am going to
    try to go through as much information as I can.
        Do you promise to defend the Portland courthouse against
    anarchists? The Federal court building in Portland.
        Judge Garland. Any attack on a Federal building or damage
    to a Federal building violates Federal statutes, and those who
    do it will be prosecuted.
        Senator Graham. Okay. When it comes to the people who
    attacked the Capitol on January 6th, will you let the Committee
    know if you need more resources?
        Judge Garland. Yes, absolutely, Senator. I really do think
    one of my first jobs is to consult with the prosecutors and the
    agents who are investigating that matter and see what resources
    they need, and I am eager to have an invitation----
        Senator Graham. I think I speak for most----
        Judge Garland. I am eager to have an invitation from the
    Senate to ask for more resources.
        Senator Graham. Sure, please. Thank you.
        I think all of us want to prosecute every single person
    that deserves to be prosecuted. So whatever you need, I am sure
    you will get from this Committee.
        Judge Garland. Thank you, Senator.
        Senator Graham. Have you read the Horowitz report?
        Judge Garland. Senator, in our conversations, you asked me
    to read it. It is some 400 pages long, and I asked your
    permission to read only the also very long executive summary.
    And I have done that.
        Senator Graham. So what is your general take?
        Judge Garland. Well, my general take is that there were
    certainly serious problems with respect to FISA applications,
    particularly for Mr. Page, and in the subsequent report to the
    way in which FISA applications are documented. The Inspector
    General had a substantial number of recommendations for how
    this could be fixed and how it must be fixed. I understand that
    he submitted those to the FBI Director, and I understand the
    FBI Director agreed totally and either has made those changes
    or is in the course of making them.
        I intend, if I am confirmed, to speak more deeply and
    directly with Mr. Horowitz, the Inspector General, about this
    and with Director Wray and make sure that these and any other
    things that are necessary be done. I am always concerned and I
    have always been concerned that we be very careful about FISA.
    It is a tool that is very useful and important for
    investigations involving foreign agents.
        Senator Graham. That is good to hear. So, Clinesmith: Are
    you familiar with the fact that a lawyer for the FBI has been
    prosecuted, pled guilty to altering information to the FISA
    court?
        Judge Garland. I did--I did read about that, yes, Senator.
        Senator Graham. What would happen to somebody under your
    charge that did that? How would you feel about the behavior?
        Judge Garland. Well, somebody who makes a false statement
    to the FBI or the Inspector General during an investigation has
    violated 18 U.S.C. 1001, and I prosecute those myself.
        Senator Graham. Do you believe the Durham investigation is
    a legitimate investigation?
        Judge Garland. Senator, I--I do not know anything really
    about the investigation.
        Senator Graham. Besides the Horowitz report, do you think
    somebody should look at what happened?
        Judge Garland. Well, I do think somebody should look at
    what happened with respect to those FISAs, absolutely. And I
    believe the Inspector General has done that.
        Senator Graham. Based on what--your review of the Horowitz
    report, do you think Jim Comey was a good FBI Director?
        Judge Garland. Senator, I really do not want to get into
    analyzing any of the previous Directors and----
        Senator Graham. Well, you know, you have been very
    political, and appropriately so at times. I just find it pretty
    stunning that you can't say, in my opinion, that he was a
    terrible FBI Director.
        But have you ever been to the border? Have you ever been to
    the U.S.-Mexican border?
        Judge Garland. No, sir. I have not.
        Senator Graham. So I would like you to go--because I just
    got back--because I learned that drug cartels are using our
    asylum laws against us. They will collect people to sort of
    rush the border, and once they are apprehended, they will claim
    asylum. And most of these claims, 90 percent are rejected, and
    that will take resources away from securing the border and
    detecting drugs and protecting the Nation against terrorism.
        This is a behavior by the cartels. Will you look into that
    practice of using asylum claims by drug cartels to weaken
    border security?
        Judge Garland. I had not known about this, and I will
    certainly look into this problem. I think the drug cartels are
    a major menace to our society, and the poison that they put
    into our streets is damaging communities of every kind. If they
    have a particular----
        Senator Graham. Well, I would ask----
        Judge Garland. If they have a particular----
        Senator Graham. I would ask you to visit the border. I
    think you will find patriots there, and when they make
    mistakes, they need to be held accountable. But that is one of
    the toughest jobs in the country.
        Judge Garland. Senator? Senator, I apologize for speaking
    over you just now, but there is a little bit of a lag.
        Senator Graham. I am sorry.
        Judge Garland. It is not your fault. It is a lag in the
    technology, I think.
        Senator Graham. Okay. Well, I do--I have a southern accent.
    So that is----
        Judge Garland. It is not the accent. I am familiar with
    southern accents.
        Senator Graham. It must be the internet. This is the 20th
    anniversary of 9/11. Are you concerned that al-Qaeda and ISIS
    types are going to try to hit us again?
        Judge Garland. I am very concerned that foreign terrorist
    organizations will try to hit us again, yes. I do not know
    enough at this point about the capabilities of those two, but
    it really does not matter which foreign terrorist. The terrible
    thing is the attack.
        And as I said in my opening statement, with all of the
    other things that the Justice Department has to do, it must
    always keep its eye on the ball with respect to foreign
    terrorist attack. I was sitting in my office, arriving at my
    office as the first planes--first plane hit the Trade Center,
    and I was sitting in my office and could see smoke rising over
    the Pentagon. I can assure you that this is top of mind for me.
        Senator Graham. Well, one of the reasons I am very inclined
    to support you is I believe what you just said is true. I think
    you have a very deep understanding of the threats America
    faces. And to my colleagues on the Committee, al-Qaeda has been
    diminished. ISIS, quite frankly, has been greatly diminished.
    But they are out there, and they are trying to--they will this
    year sometime--I hope I am wrong--let us know they are still
    there. So it is great to hear the potential future Attorney
    General understanding that our Nation is very much still under
    threat.
        So when it comes to interacting with the Committee, we are
    going to be talking about Section 230 reform. What is your
    impression of Section 230 liability protection for Big Tech,
    and is it time to revisit that topic?
        Judge Garland. Senator, I have to be the first to confess
    when I have relatively limited information about a subject. I
    have had one case on Section 230. It was a very straightforward
    application of the law. So, of course, I know what it is. I
    also know that many Members of this Committee have ideas for
    how it should be amended, and I would have to have an
    opportunity, if I am confirmed, to talk with you about that and
    to understand all the conflicting concerns and the complexities
    of how to alter it, if it is to be altered.
        The devil in these sort of things is always in the details,
    and you on the Committee know more about this than I do, and I
    look forward, if I am confirmed, to having the chance to talk
    about it with you.
        Senator Graham. Thank you. Congratulations on your
    nomination.
        Thank you, Mr. Chairman.
        Judge Garland. Thank you, Senator.
        Chair Durbin. Thank you, Senator Graham.
        Senator Whitehouse.
        Senator Whitehouse. Thank you, Chairman.
        And welcome, Judge Garland.
        Judge Garland. Thank you, Senator.
        Senator Whitehouse. People who have been prosecutors
    understand that it is not the legislature's business to meddle
    around in a prosecution. At the same time, we have oversight
    responsibilities. In your view, is it appropriate for Congress
    to ask that DOJ give an honest look at investigative matters?
        Judge Garland. Senator, I know of your own long experience
    as a prosecutor, including some of it which overlapped with
    mine, and I am deeply respectful of it and appreciative of it.
    When you ask it that way, it is, of course, always possible for
    anyone to ask about matters like this.
        The Department has to be very careful with respect to the
    Congress in the same way it has to be respectful--careful with
    respect to the White House, that no investigations get started
    just for partisan--and I am not in any way suggesting that that
    is what you are asking.
        Senator Whitehouse. Correct. No, I agree with you.
        Judge Garland. But we have to be careful about this.
        Senator Whitehouse. And after the fact, once the
    investigation is closed or concluded, is it appropriate in the
    exercise of our oversight to assure that, in fact, an honest
    look was taken?
        Judge Garland. Yes, of course, it is. There are, obviously,
    limitations on the Department's ability to speak. They include
    everything from grand jury material----
        Senator Whitehouse. Rule 6(e) and so forth.
        Judge Garland [continuing]. And methods.
        Senator Whitehouse. Understood. Understood.
        With respect to January 6th, I would like to make sure that
    you are willing to look upstream from the actual occupants who
    assaulted the building in the same way that in a drug case you
    would look upstream from the street dealers to try to find the
    kingpins and that you will not rule out investigation of
    funders, organizers, ring leaders, or aiders and abettors who
    were not present in the Capitol on January 6th.
        Judge Garland. Senator----
        Senator Whitehouse. Fair question?
        Judge Garland. Fair question, and again, your law
    enforcement experience is the same as mine. Investigations, you
    know, I began as a line assistant U.S. Attorney and was a
    supervisor. We begin with the people on the ground, and we work
    our way up to those who were involved and further involved. And
    we will pursue these leads wherever they take us.
        Senator Whitehouse. Thank you.
        Judge Garland. That is the job of the prosecution.
        Senator Whitehouse. As Chairman Durbin mentioned, there
    have been widely reported problems within the Department in the
    last 4 years. The Judge Gleeson's brief for Judge Sullivan is
    one pretty stunning reproach of the Department. Judicial
    decisions out of the D.C. District Court and the Southern
    District district court have been pretty damning. And press
    reports, too many to mention, have raised concerns about
    problems within the Department during that period.
        How do you plan to assess the damage that the Department
    sustained so that you can go forward with a clear understanding
    of what needs repair?
        Judge Garland. Well, Senator, I am a strong believer in
    following the processes of the Department. That was my
    experience in all of my experiences at the Department,
    regardless of whatever level I served.
        The traditional process is for issues to be raised before
    either the Inspector General or the Office of Professional
    Responsibility in the areas that you are talking about, that
    they conduct investigations--and they certainly seemed
    extremely capable of conducting thorough investigations--they
    then make recommendations. And that would be the normal
    procedures in the Department, and I would expect, if I am
    confirmed, that those would be the kind of procedures I would
    want to follow.
        Senator Whitehouse. Well, I would submit to you that you
    may want to take it on more systematically than that, but we
    can leave that for a later day.
        On this Committee, and particularly on this side of this
    Committee, we have experienced more or less a 4-year stonewall
    of information from the Department of Justice and from the FBI.
    From 2017 to 2020, we had 25 DOJ and FBI witnesses who failed
    to answer some or all of the questions for the record that
    Senators asked them. Twenty-one answered none of the questions
    for the record from either side.
        I have sent during the course of those years 28 different
    letters on various subjects that went completely unanswered. It
    got so bad that Chairman Graham brought the Deputy Attorney
    General up to meet with him and me to go through the list and
    try to figure out why the hell we were not getting answers and
    where the policy came from, the de facto policy of refusing to
    answer questions of Senators.
        I think we need to understand what happened during that
    period, why these questions were not being answered. The base
    question, the point of entry is why were these questions not
    being answered? Upon whose instructions were these questions
    not being answered? Why? What was behind, what was the motive
    for refusing to answer these questions?
        Once we have cleared that up, then I think we have got to
    go through the backlog of questions that the Department refused
    to answer. As you know, sometimes Congress asks questions that
    are touchy for a department. Somebody may have misbehaved.
    There may be wrongful conduct that has taken place.
        And I hope you will agree that covering up misconduct is
    never an acceptable reason for refusing to answer questions of
    Congress.
        Judge Garland. Well, I certainly agree that covering up
    anything is never an appropriate reason for not answering a
    question of Congress. There will be no policy, de facto or
    otherwise, if I am confirmed, that would direct the Department
    to not be responsive to this Committee and to its Members. I
    want the Department I lead to be as responsive as possible and,
    at the very least, to explain why, if it cannot answer a
    question or cannot answer a letter, why it cannot do so.
        Senator Whitehouse. Correct.
        Judge Garland. That is the minimum you are entitled to.
        Senator Whitehouse. Correct. And I do not want this just
    going forward, I want to be able to go back and get answers to
    those backlogged questions that were wrongfully refused. Would
    you help us make sure that that happens?
        Judge Garland. Yes, Senator. As we talked in our
    conversation before, I would definitely direct the previous
    questions be answered. I only ask you and the other Members of
    the Committee, as a matter of resource and priority allocation,
    to give us--the Department some sense of the priorities of
    which ones still need to be answered and perhaps----
        Senator Whitehouse. Correct.
        Judge Garland [continuing]. Even in what order.
        Senator Whitehouse. We will do that. And last, I have just
    a few seconds left, so I will just flag two things.
        I think that the Office of Legal Counsel has taken a lot of
    hits, from the torture memos to the wiretap memos, to the
    Southern District decision to the D.C. Court decision, to its
    extremely self-serving and self-propagating view of
    Presidential investigations. This is a part of the Department
    that I think is in real trouble.
        Another role of the Department is the policing and the
    intermediation of Executive privilege for an administration,
    and I think that is an area that has been in complete collapse.
    And I look forward, with my time now expired, to working with
    you to figure out what to do about OLC and what to do about the
    intermediative role of the Department of Justice when Executive
    privilege is asserted.
        Judge Garland. Thank you, Senator. I look forward to
    speaking with you.
        Chair Durbin. Senator Cornyn.
        Senator Cornyn. Welcome, Judge. I enjoyed our conversation
    the other day. Thank you----
        Judge Garland. As did I, thank you.
        Senator Cornyn. Thank you for that.
        As I told you, my sole criterion for voting for your
    confirmation is your pledge to make sure that politics does not
    affect your job as Attorney General. And I believe you told me
    that you could make that commitment. Is that a commitment you
    can make here publicly today?
        Judge Garland. Yes, absolutely. I would not have taken this
    job if I thought that politics would have any influence over
    prosecutions and investigations.
        I do want to, just to be clear about--to clarify so as to
    not disappoint you. With respect to policies of the
    administration, which I assume are driven by politics--although
    as a judge, I would not know for sure--it is our obligation to
    advance the policies of the Department, as long as they are
    consistent with the law. And our evaluation of the law has to
    be based only on the law and not politics.
        Senator Cornyn. Thank you for that clarification.
        I think being Attorney General has got to be the toughest
    job in the United States Government because you serve at the
    pleasure of the President, but you also have, as you
    appropriately point out, obligation to equal justice and
    impartial enforcement of the law. If you were asked to do
    something that you considered to be in violation of the law or
    unethical, would you resign?
        Judge Garland. Well the first thing I would do is to tell
    the President or whoever else was asking me to do that that it
    was unlawful. I do not expect this to happen with this
    President, who has made it completely clear, publicly and in
    private, that he will not do that. But of course, if I am asked
    to do something and an alternative is not accepted, I would
    resign. Yes.
        Senator Cornyn. Judge Garland, I think one of the biggest
    problems that the administration of justice has had here in the
    United States for the last--particularly the last couple of
    Presidencies--has been the perception that there is a double
    standard, one that applies to maybe one political party or
    people of wealth, and another one that applies to the opposing
    political party or people who do not have the resources in
    order to defend themselves against the awesome investigative
    and prosecutorial powers of the Department of Justice.
        Of course, you are acquainted with the phrase above the
    Supreme Court, ``Equal Justice Under Law.'' Do you agree with
    me that a double standard, a perception of a double standard of
    justice can be a cancer that will eat away at public confidence
    in the administration of justice and that commitment to equal
    justice?
        Judge Garland. Absolutely, Senator. As I have said to many
    people, I think probably including yourself, Ed Levi is my
    model for the Attorney General. His role was to be sure that
    justice was meted out fairly and impartially, without any
    special favors for anyone. This is the definition, in my view,
    of the rule of law that the powerful and the powerless, one
    party and another party, one community in the United States and
    another community in the United States, all are treated equally
    in the administration of justice.
        Senator Cornyn. The Chairman's recitation of things that he
    perceives as being inappropriate at the Department of Justice
    ended with the Trump--started and ended with the Trump
    administration. But let me take you back a little further into
    the Biden-Obama administration.
        You are familiar with the press conference that James
    Comey, the FBI Director, had in July 2016----
        Judge Garland. I remember----
        Senator Cornyn [continuing]. Where he discussed the
    investigation of Hillary Clinton for inappropriate use of her
    email server?
        Judge Garland. I remember it, Senator, yes.
        Senator Cornyn. According to the Justice Department norms
    and procedures and rules that you are well acquainted with as a
    result of your experience, is that an appropriate step for an
    FBI Director to take, to talk about derogatory information in a
    case that they say no reasonable prosecutor would pursue?
        Judge Garland. Senator, I do not think it is useful for me
    to comment on specific matters involving specific former
    officials. But I have no problem at all telling you that the
    Justice Department's policies make clear that derogatory
    comments about subjects, targets, even people who have been
    indicted, except for what is in the indictment, are not
    appropriate. And if I am confirmed, I will zealously attempt to
    re-inculcate that spirit.
        When I was speaking to the Press after each court hearing
    in Oklahoma City, I was assiduous in making sure that I did not
    say anything about the defendants who had just been before the
    court and who had done--now we know after conviction--horrible
    things, that I would not say anything other than what the
    charges had been brought against them and what the judge
    reported. And I believe that is an important part of Federal
    prosecution.
        Senator Cornyn. I know you do not want to comment on Mr.
    Comey's actions, but what you have just described strikes me as
    diametrically opposed to what he actually did.
        Senator Graham asked you if you had read the Horowitz
    report on the investigation of Crossfire Hurricane. I
    understand that your time has been limited up to this point,
    but do you--would you pledge to read all 404 pages of that
    report, if you are confirmed?
        Judge Garland. I will, Senator. It may take me some time,
    but I have a head-start by reading the executive summary. So I
    think I should be able to get through it.
        Senator Cornyn. Well, I think it is really important that
    you do so.
        Judge Garland. Okay. I will.
        Senator Cornyn. Because of the abuse not only of the FISA
    process, where an FBI lawyer lied to the FISA court in order to
    get a warrant to spy on an American citizen, but the use of a
    counterintelligence investigation against a Presidential
    candidate and in the run-up to the election.
        Are you familiar with the Steele dossier?
        Judge Garland. Only what I read in the newspapers, and I
    have to admit that I read only conflicting reports about it in
    the papers.
        Senator Cornyn. Well, it has been revealed that the sources
    for the Steele dossier, which was used in part in order to get
    FISA warrants, that the sub-sources could well be--could well
    be Russian intelligence officers using that in order to get--as
    part of a Russian active measures campaign. Are you familiar
    with the practice of the Soviet Union and now the Russian
    Federation to use active measures as part of their intelligence
    service attacks against the United States?
        Judge Garland. So not from my experience either as a judge
    or as a prosecutor, but again, from reading media reports. I
    know what the words mean, and I have a general idea of what you
    are speaking about, yes.
        Senator Cornyn. Judge Garland, my time is about up. But I
    think we talked about the role of the Judiciary Committee and
    authorizing the tools, like Section 702 of the Foreign
    Intelligence Surveillance Act, and the importance of preserving
    public confidence that those tools will be appropriately used.
    And there will be appropriate oversight both at the Department
    of Justice and the FBI, as well as the Judiciary Committee and
    the Intelligence Committees.
        Do you agree with me that abuse of those authorities
    jeopardizes the availability of those tools in a way that is
    detrimental potentially to the security of the United States?
        Judge Garland. Absolutely, Senator. My entire career as a
    Justice Department official was aimed at ensuring that we used
    FISA only as appropriate under the law as it existed at the
    time. It is not only that I am worried about losing a tool that
    is essential. It is also that I am worried about transgressing
    the constitutional rights of Americans.
        Both of those are important, and I have to say probably the
    latter is way more important, in my view. We have to be careful
    about respecting American citizens' constitutional rights.
        Senator Cornyn. Thank you, Judge.
        Chair Durbin. Thanks, Senator Cornyn.
        Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Mr. Chairman.
    Congratulations on your new job.
        And congratulations to you, Judge Garland, on your
    nomination.
        Judge Garland. Thank you.
        Senator Klobuchar. I listened with much happiness in your
    opening remarks when you talked about being a lawyer for the
    people, that you want to serve the law and not factional
    purposes, and that you used the important adjective ``humble.''
    I think we need a little bit more of that in this town. So I
    appreciate that.
        And I was also glad that you mentioned--when President
    Biden nominated you--Attorney General Edward Levi, who taught
    an iconic first-year law class at the University of Chicago
    that I took. And like Edward Levi, who took office after
    Watergate, you will take on the Department of Justice at a
    critical time and will have the great task of restoring its
    ideals of independence and fidelity to the Constitution and to
    the law.
        What is the number one thing you want to do to boost morale
    in the Department of Justice on Day 1?
        Judge Garland. Well, on Day 1, hopefully, if I am
    confirmed, I will take an oath in which I say all of the things
    that you just said. I want to make clear to the career
    prosecutors, the career lawyers, the career employees, the
    career agents of the Department that my job is to protect them
    from partisan or other improper motives.
        I then hope to have an opportunity over the next few months
    to visit with as many members of the Justice Department as
    possible. In a pandemic, unfortunately, this will have to be
    over Zoom. I would much prefer to be able to go down to the
    great hall or the cafeteria and mingle with folks and let them
    hear what is in my heart about this, but I am afraid that
    technology is the only way I am going to be able to do it now.
        Senator Klobuchar. Okay, very good. One of the things that
    troubled me along these lines was the pardon process that
    President Trump undertook, and one study found that 88 percent
    of the pardons that he granted had some sort of personal or
    political connection to the former President.
        What do you think we need to do to restore integrity to the
    pardon process? Obviously, it is an important power of the
    President. What do you think you can do from the Attorney
    General's position?
        Judge Garland. Well, Senator, you are right. This is a
    power granted by the Constitution to the President. I think the
    role of the Justice Department through its pardon attorney is
    to provide a careful, individualized examination of the people
    who are asking to be pardoned.
        The office has a set of very detailed regulations, which
    describe when people are appropriate for pardons and when they
    are not. It provides an important screen that not only yields
    who maybe should be pardoned, but also protects the President
    from improper influence.
        Senator Klobuchar. Okay. Just a few things I want to ask
    quickly because I want to also get to antitrust. You talked to
    Senator Graham about resources for domestic terrorism and that
    you want to take a look. Do you think you will need additional
    authorities, or you want to look at that when you get in there?
        I am going to be chairing a hearing tomorrow with the Rules
    Committee on what happened at the Capitol and what we need to
    do to improve security. Obviously, part of it is prosecuting
    the perpetrators.
        Judge Garland. Yes. Well, I thank you for that question.
    The Department is probably always looking for new tools. But
    the first thing we have to do before we look for new tools is
    figure out whether the tools we have are sufficient, and that
    will be part of this briefing that I want to have to determine
    whether the laws, which are quite capable and which were
    capable of the charges against McVeigh and Nichols and many
    other terrorists over the years, whether they are sufficient.
        And then I would be interested in speaking with you and
    other Members of the Committee about what other additions might
    be made, but I first have to know whether anything more is
    necessary.
        Senator Klobuchar. Very good. Will you commit to
    reinstating Attorney General Holder's 2015 guidelines requiring
    the AG to sign off on subpoenas to journalists? Something I
    care a lot about as the daughter of a journalist.
        Judge Garland. Yes. So these guidelines came out originally
    when I was working for Ben Civiletti, and I had the great
    pleasure of working on them. This is something that I am deeply
    committed to. They have improved, I would say, over the years
    as more concerns have arisen. But I would expect to re-up those
    guidelines.
        I do not believe that they have been rescinded in any way,
    though. I believe they are still there.
        Senator Klobuchar. No, but I could not really get a
    straight answer from Attorney General Sessions or Barr. So we
    can talk about this more.
        Judge Garland. Well, I hope this is a good answer for you.
        Senator Klobuchar. I know you support reforms to police
    practices. That is correct?
        Judge Garland. Yes.
        Senator Klobuchar. Okay, very good. We obviously have a
    major bill on that. Conviction integrity units, something that
    I think is very important. You support Federal grants for that?
        Judge Garland. Oh, yes. Look, I think that convicting
    someone who did not commit the crime is one of the most--it is
    a risk, of course, of all kinds of law enforcement. But if we
    can determine that we have made a mistake, we need very much to
    correct it.
        And I think that grants for the purpose of supporting
    conviction integrity units in district attorney, State's
    attorneys offices across the country is a very good idea.
        Senator Klobuchar. We share an interest in antitrust law. I
    know that you used to teach that to law students, and you have
    handled some cases as judge. As Chair of the Competition Policy
    and Antitrust Subcommittee, we are going to be doing a lot in
    this area, along with my colleague Senator Lee.
        Two-thirds of U.S. industries have become more concentrated
    between 1997 and 2012. The pandemic has actually made things
    even harder on small businesses. I think that we need more
    resources. The FTC and the Antitrust Division of DOJ are
    literally shadows of what they were when the breakup of AT&T
    occurred, and we cannot expect the agencies to do what we need
    to do to take on the biggest companies the world has ever known
    on the tech side, in addition to other ones, with band-aids and
    duct tape.
        Senator Grassley and I have a bill to greatly increase the
    funding to those divisions and agencies. Would you support
    that?
        Judge Garland. Well, I appreciate your recognizing that my
    first love in law school, as it turns out, was, in fact,
    antitrust, and I studied under one of the most famous scholars
    and was his research assistant, Phil Areeda. And when I was in
    practice, I worked with Bob Pitofsky, another one of the
    greatest scholars and the former head or chair of the Federal
    Trade Commission. And I did practice antitrust law, including
    trying antitrust cases.
        I always want to be in a position of saying thank you, yes,
    when you ask whether we want more resources. My expectation is,
    that is what I would say. But until I am--if and until I am
    confirmed, I really cannot evaluate what resources we might
    need, but I am happy to work with you on that.
        Senator Klobuchar. Will you commit to vigorously enforcing
    the antitrust laws?
        Judge Garland. Absolutely.
        Senator Klobuchar. I believe that we need some changes to
    those laws to aid you in doing that, and I hope you will be
    open to those. I have a bill called the Competition Antitrust
    Law Enforcement Reform Act that I hope you'll look at, changing
    some of the standards for mergers and for exclusionary conduct.
    I also think that if anything has illustrated the need to look
    back at the consolidation in some of these industries, it would
    be the lawsuits filed by DOJ and the FTC. Example, Facebook's
    acquisitions of Instagram and WhatsApp.
        I would suggest you look at Mark Zuckerberg's email where
    he talked about purchasing nascent competitors, and I think the
    answer to that has got to come from the Justice Department. The
    answer, the reply to that email, that this kind of exclusionary
    conduct is not the way capitalism works in America, and we have
    always had a balance. We have had a balance through Republican
    Presidents and Democratic Presidents to say that we believe in
    the capitalist system, and we have to make sure we keep
    rejuvenating it by allowing smaller competitors to emerge.
        That is not happening right now in many areas, and I just
    need your commitment that you will take this area of the law
    very seriously.
        Judge Garland. I take it very seriously and have throughout
    my entire career. The Supreme Court has repeatedly referred to
    the antitrust law as the charter of American economic liberty,
    and I deeply believe that.
        Senator Klobuchar. Thank you very much, Judge Garland.
        Judge Garland. Thank you.
        Chair Durbin. Thanks, Senator Klobuchar.
        This was the first test of the new regime. We are going to
    take a break now for 10 minutes and resume at 11:20 a.m. for
    the much anticipated questioning of Senator Lee.
        Judge Garland. Thank you, Mr. Chairman.
        [Whereupon the hearing was recessed and reconvened.]
        Chair Durbin. Senator Lee.
        Senator Lee. Thank you very much, Mr. Chairman.
        And thank you, Judge Garland, for being here today. I
    appreciated also your kind words about former Attorney General
    Ed Levi. I have been a lifelong admirer of his. He truly is an
    Attorney General in the grand tradition of that office, and he
    is someone my family has known in one way or another for a long
    time.
        My late father worked for him while he was running the
    Civil Division during Ed Levi's time as Attorney General, and I
    have had close personal and professional interactions with both
    his son, David Levi, a former judge and later law school dean,
    and with Ed Levi's grandson, David's son, Will, who served with
    me as my Chief Counsel, worked on this Committee for several
    years, and later served as Chief of Staff to Attorney General
    Barr. So I am a big fan of that family, and I am glad that he
    is someone that you look up to.
        I want to talk about a few issues today. Let us talk first
    for a moment about the Second Amendment and the right to bear
    arms. This is going back 15 years or so, but in a case called
    Parker v. District of Columbia, a case that later became known
    as District of Columbia v. Heller, as I recall, you voted for
    rehearing en banc with respect to an opinion striking down that
    same ban on handguns within the District of Columbia. And, of
    course, later in the same proceedings of the same case, the
    Supreme Court struck down the ban.
        Can you tell us why you voted the way that you did, why you
    voted to give D.C. another chance to defend its ban on handguns
    in that case?
        Judge Garland. Yes, Senator. As I know you know, because
    you were a law clerk yourself, you know that rehearing en banc
    is a vote to hear a case. It is not a vote on the merits of the
    case. And in my case, for myself, it is never a vote on the
    merits. It is a vote to rehear the case.
        The panel decision was the first time I think ever a court
    of appeals had held the individual right to keep and bear arms,
    which you are exactly right, the Supreme Court did uphold in
    the end. Every court of appeals had decided to the contrary,
    and the issue was plainly one that would require looking at a
    deep historical record as to the meaning of the Second
    Amendment and the way that it had been applied. I thought this
    was an extremely important issue, important enough since it was
    the very first time that we should hear it en banc. I was not
    the only judge, and other judges, including a judge appointed
    by a President of a different party, also voted and for the
    same reason, so that we would have an opportunity to hear the
    case.
        Senator Lee. Thank you. I appreciate that.
        Let us talk a little bit about the meaning of the Second
    Amendment. How do you view it? And do you agree with Justice
    Thomas' analysis in his dissent in the Rogers case that the
    Second Amendment right to bear arms certainly includes the
    right to carry operable firearms in public for self-defense?
        Judge Garland. So my view is totally controlled by the
    Heller opinion, and in that case, Justice Scalia held that
    there was an individual right to keep and bear arms for self-
    defense. In the subsequent McDonald case, the Court said that
    was a fundamental right which applied to the States as well. It
    is a right, as Justice Scalia said in the opinion, like all
    rights, that is subject to some limitations.
        The Court has not given us much more to work with at this
    point, and I do think, as I said with respect to my vote en
    banc, this is a matter that requires careful historical
    examination, which I have never done, and I certainly cannot do
    sitting here for you. So I do not have an opinion on that
    question.
        Senator Lee. You have been in a judicial role for the last
    20, going on 25 years.
        Judge Garland. Yes, sir.
        Senator Lee. You will be in a different role if confirmed
    to this position, one in which you will have a significant
    impact on policy. So let us talk about policy as it relates to
    the Second Amendment briefly.
        Do you support universal background checks?
        Judge Garland. Well, I do think that it is very important
    that we be careful that people who are entitled to have guns
    get the background check that allows them to have them, and
    that those who are not entitled and who we are concerned about
    because they are threats, because they are felons, or whatever
    reason barred by the law, that we have--that there is an
    opportunity to determine that they not be given a gun.
        Senator Lee. Do you support banning specific types of guns?
        Judge Garland. I am sorry?
        Senator Lee. Do you support banning of certain types of
    firearms?
        Judge Garland. Well, as I am sure you know, the President
    is a strong supporter of gun control and has been an advocate
    all of his life, his professional life on this question. The
    role of the Justice Department is to advance the policy program
    of the administration as long as it is consistent with the law.
    And as I said, so far we have a little indication from the
    Supreme Court as to what this means, but we do not have a
    complete indication. And where there is room under the law for
    the President's policies to be pursued, then I think the
    President is entitled to pursue them.
        Senator Lee. What about policies that would support holding
    firearms manufacturers liable for damage caused by people using
    firearms they produced to commit a crime?
        Judge Garland. I do not have a--I believe that the
    President may have a position on this question. I have not
    thought myself deeply about this. I do not think it raises a
    Second Amendment issue itself, the question of the liability
    protection, but I have not addressed this in any way, and I
    would need to think about this considerably more.
        Senator Lee. The other questions I raise potentially
    implicate the Second Amendment. That one raises other policy
    concerns.
        Judge Garland. I understand.
        Senator Lee. Let us talk about FISA briefly. Senator Leahy
    and I have offered an amendment to reform the FISA process by
    strengthening the amicus curiae provisions that are already in
    there in existing law, that have been put in there by, among
    other provisions, the USA FREEDOM Act, which Senator Leahy and
    I got passed through Congress and signed into law by President
    Obama in 2015. And our amendments would also require the
    Government to disclose relevant exculpatory evidence, both to
    the FISA Court and to the amici. This is an amendment that
    ended up passing the Senate last year by a bipartisan
    supermajority of 77-19.
        Do you support reforms to FISA like those I just described
    in the Lee-Leahy Amendment?
        Judge Garland. So, I think FISA is an extremely important
    tool for the Justice Department and the intelligence community
    in general to protect the country from foreign agents and
    foreign terrorists.
        On the other hand, it is extremely important that
    everything we do with respect to FISA--and I have felt this way
    my entire professional life also--that we do so in accordance
    with the law and with respect for the constitutional rights of
    citizens.
        I do not know very much specifically about your two
    proposals. I do know the current rules with respect to amicus,
    and I have had the opportunity to discuss those with judges on
    the Foreign Intelligence Surveillance Court, and everyone seems
    quite happy with the way that process is going. I do not know
    what more might be needed. I would have to study that.
        Senator Lee. Mr. Chairman, I see my time has expired. I
    have got one very brief follow-up. Can I just finish that
    question? Thank you.
        On this topic of questions related to FISA, I also wanted
    to ask you, do you think that the Federal Government ought to
    be able to collect American citizens' web-browsing or internet
    search history without a search warrant supported by probable
    cause?
        Judge Garland. I know this is a big issue. I do not--you
    know, my experience with FISA comes from a slightly different
    era. I had a lot of experience, but it was a very different
    era, and I followed this a little bit. I obviously have not had
    any cases on it myself. I would have to look at it.
        You know, I believe in judicial review, and I am a strong
    supporter and respectful of judicial review of orders. But I do
    not know what the practicalities of going for a probable cause
    warrant in those circumstances would be, if it would be an
    emergency, et cetera. And I would be eager to engage with you
    and other Members of the Committee who are concerned about this
    so that I can understand this problem more fully.
        Senator Lee. Thank you very much, Mr. Chairman.
        Chair Durbin. Senator Coons.
        Senator Coons. Thank you, Chairman Durbin, Ranking Member
    Grassley. Judge Garland, welcome.
        Judge Garland. Thank you.
        Senator Coons. Congratulations on your nomination, and
    please convey my thanks to Lynn, to Jessie, to Becky, to your
    family for supporting what has been a decades-long career at
    the bench and bar as someone dedicated to public service, to
    law enforcement, and to upholding the balance between justice
    and liberty.
        I cannot think of a more urgent task before us than
    restoring the people's faith in our institutions and in the
    rule of law, and your opening statement, which in part was
    dedicated to clarifying your view that the Attorney General
    represents the public interest and your enthusiasm for ensuring
    that the 115,000 career employees of the Department of Justice
    are appropriately sheltered from partisan or political
    influence, is very encouraging to me after what I think were
    some harrowing moments in the last few years.
        As I am sure you know, there are quite a few admirers of
    yours who work here on this Committee, some former clerks of
    yours who work closely with me, and many who have reassured me
    not just of your professional skill and great insights, but
    also of your personal decency, kindness and thoughtfulness.
        I was struck in reading through your background that you
    have spent 20 years quietly as a tutor at an elementary school
    here in the District of Columbia, something I think not enough
    elected or appointed officials on either the bench or in
    Congress do. So thank you for your willingness to continue your
    service.
        I am from a small town in Delaware which, like many other
    cities in America, was torn apart by concerns about racial
    justice and inequality, a city that has also struggled with
    longstanding challenges with gun violence and with insecurity
    and instability in our community. Our Mayor Mike Purzycki, our
    Governor John Carney, are doing a great job and working hard to
    try and address this and striking the right balance between
    protecting our citizens from gun violence, but also developing
    an environment where law enforcement is more transparent and
    accountable, is going to be one of the core challenges which
    you and the Department of Justice will be involved in, in
    partnership with State and local law enforcement and with other
    elected officials.
        In Wilmington and Dover, Delaware, we are rolling out body-
    worn cameras for law enforcement officers. Our governor has
    committed to having that available for all of our law
    enforcement officers by 2025. But it is very expensive. It is
    something law enforcement has embraced. It is something that
    advocates have embraced.
        I am an appropriator for the Department of Justice as well
    as a Member of this Committee. Is that something you could
    agree to, to be an advocate for the funding and deployment of
    body-worn cameras to ensure both accountability and improved
    trust between law enforcement and local communities?
        Judge Garland. Well, Senator, I am, again, always happy to
    accept more resources for the Department of Justice. I do not
    know what that might take away from in other areas for the
    Department, but I personally think that body cams are a very
    important tool both to protect officers and to protect the
    citizens. And, you know, just as everyone--well, you are all on
    the inside. I was on the outside watching what happened on
    January 6th, and the fact that we were able to see exactly what
    was happening to the officers and the way in which they were
    carrying about their duties in the best way they could is only
    possible to be captured because of the body cameras. I think it
    is an important tool for accountability, yes, I do.
        Senator Coons. Thank you, Your Honor. If you might, I do
    think it is important that we increase investment in a variety
    of programs. I have long worked for the Victims of Child Abuse
    Act. COVID-19 has demonstrated a tragic rise in child abuse,
    and this is a critical tool that allows State and local law
    enforcement to effectively address child abuse. The Bulletproof
    Vest Partnership Program, which has helped save 3,000 officers'
    lives, these and other grant programs are things I look forward
    to working with you on.
        There is also much-needed legislation that will move us
    forward in terms of criminal justice reform and protecting
    communities from violence. Senator Cornyn and I hope to soon
    reintroduce the NICS Denial Notification Act, which just
    ensures that State and local law enforcement gets notified when
    a person prohibited ``lies and tries.'' They attempt to
    purchase a gun. That is something that has been discussed in
    previous Congresses on this Committee. We have not made
    progress on it. I think we should.
        Senator Wicker and I are soon going to reintroduce the
    bipartisan Driving for Opportunity Act, which incentivizes
    States to stop suspending driver's licenses simply for unpaid
    fines and fees. It is a cruel, counterproductive way to take
    away people's ability to get to work and ensures people are
    trapped in modern-day debt prisons. It is something that has
    strong support from law enforcement and civil rights groups,
    and I would just be interested in whether you will work with us
    here in Congress to move bipartisan bills like these two.
        Judge Garland. I am extremely interested, if I am
    confirmed, in working with the Members of Congress, and
    particularly on bipartisan legislation. I do not know
    specifically about those, but each of them has the ring of
    something that is very important and quite reasonable.
        Senator Coons. Enactable, reasonable, moving the ball
    forward are the sorts of things I hope we get to work on.
        I will be serving as the Chair of the Subcommittee on
    Privacy, Technology, and the Law in this Congress, and I look
    forward to working with Senator Sasse, who will serve as
    Ranking Member. One of the core things we will be looking at is
    how online misinformation is contributing to domestic
    terrorism, to division here. You have discussed your own
    experience with domestic terrorism cases and your plan to
    prioritize this issue. It is something the FBI Director has
    said is one of our most pressing threats.
        Do you think that DOJ has a role to play in examining the
    role of misinformation and incitement online to contributing to
    violence and that the DOJ has a role in working to help us
    develop reasonable solutions to this challenge?
        Judge Garland. Well, again, Senator, I think that every
    opportunity the Justice Department has to work with Members of
    the Senate, think about how to solve problems and how to craft
    legislation, is one that we should take. I do not have in mind
    particular legislation in this area. I do think that an
    important part of the investigation of violent extremist groups
    is following their activities online and getting an idea of
    what kind of information and misinformation is being put out. I
    look forward to talking more about this with you.
        Senator Coons. Well, there are increasing regulatory
    schemes both in Europe and in California and other States being
    considered, and I look forward to working with you on striking
    that appropriate balance between protecting data privacy,
    protecting individual liberty, but also protecting the
    competitiveness of the United States and globally making sure
    that we are pushing back on digital authoritarianism.
        Last, I am glad to see the Department is prosecuting--I
    think there are 235 charges brought so far--against rioters who
    invaded the Capitol and attacked our democracy on January 6th.
    I have supported calls for a 9/11-style independent commission
    to investigate the bigger picture of what caused this and what
    we might learn from it.
        Do you think an independent commission of that style would
    help complement the Department's work and help the American
    people better understand the root causes of that riot, that
    incident, and then better help us both protect the Capitol and
    those of us who serve here but, more importantly, protect the
    underpinnings of our democracy?
        Judge Garland. Well, Senator, I do think the 9/11
    Commission was very useful and very helpful in understanding
    what happened then, and, of course, the Congress has full
    authority to conduct this kind of oversight investigation or to
    set up an independent commission.
        The only thing that I would ask, if I were confirmed, is
    that care be taken that it not--that the commission's
    investigation not interfere with our ability to prosecute
    individuals and entities that caused the Capitol--the storming
    of the Capitol. And as you well know, this is a very sensitive
    issue about disclosing operations which are still in progress,
    disclosing our sources and methods, and allowing people to
    testify in a way that then makes it impossible to prosecute
    them.
        So, with those caveats, I certainly could not object to
    anything that the Congress would want to do in this regard.
        Senator Coons. Understood. Thank you, Judge. I am
    encouraged by the broad bipartisan support you have already
    garnered from this Committee and publicly, and I look forward
    to supporting your confirmation.
        Judge Garland. Thank you very much, Senator. I appreciate
    it.
        Senator Coons. Thank you.
        Chair Durbin. Thank you, Senator Coons.
        Senator Cruz.
        Senator Cruz. Thank you, Mr. Chairman.
        Judge Garland, welcome.
        Judge Garland. Thank you, Senator.
        Senator Cruz. Congratulations on your nomination.
        Judge Garland. Thank you.
        Senator Cruz. In two-plus decades on the court, you have
    built a reputation for integrity and for setting aside partisan
    interests in following the law. The job to which you have been
    appointed is a very different job, and as I look back over the
    8 years of the Obama-Biden Justice Department, in my view the
    most problematic aspect of that tenure was that the Department
    of Justice was politicized and weaponized in a way that was
    directly contrary to over a century of tradition of the
    Department of Justice of being apolitical and not a partisan
    tool to target your opponents.
        So it is very much my hope, if you are confirmed as
    Attorney General, that you will bring that reputation for
    integrity to the Department of Justice and demonstrate a
    willingness to stand up for what will be inevitable political
    pressure to once again politicize the Department of Justice and
    use it as a tool to attack the political opponents of the
    current administration.
        Eric Holder, before he was nominated as Attorney General,
    had likewise built a reputation as being relatively nonpartisan
    and a prosecutor with integrity, and, unfortunately, his tenure
    as Attorney General did enormous damage to that reputation. As
    was previously discussed, Eric Holder described his role as
    Attorney General as being the wingman for President Obama. Am I
    right in assuming you do not view your role as Attorney General
    as being Joe Biden's wingman?
        Judge Garland. Senator, as I said, I do not want to comment
    on any individual's conduct, any of my predecessors' or FBI
    Directors' conduct in any way. But I can assure you I do not
    regard myself as anything other than the lawyer for the people
    of the United States. I am not the President's lawyer. I am the
    United States' lawyer, and I will do everything in my power,
    which I believe is considerable, to fend off any effort by
    anyone to make prosecutions or investigations partisan or
    political in any way. My job is to protect the Department of
    Justice and its employees in going about their job and doing
    the right thing according to the facts and the law.
        Senator Cruz. Under the Obama administration, the IRS
    targeted the political opponents of the President. It targeted
    conservatives for their speech. It targeted pro-Israel groups.
    It targeted Tea Party groups. It targeted individuals perceived
    to be on the opposite political side as the administration.
        Will you commit as Attorney General that you will not allow
    the Department of Justice to be used to target those who are
    perceived as political opponents because they are political
    opponents?
        Judge Garland. Absolutely, I will not.
        Senator Cruz. Also under the Obama administration,
    Operation Chokepoint was used to pressure lawful organizations,
    lawful institutions, institutions, for example, that sell
    firearms, to constrain their lawful activity and to use
    regulatory authority to abuse and force them to comply with the
    administration's stated policies.
        Do you believe it is appropriate for the administration to
    use regulatory pressure to force lawful behavior to stop?
        Judge Garland. Senator, I am not aware of the specific that
    you are giving, and I expect you do not expect that I would
    have been aware of it. But, of course, I do not believe as a
    general matter that regulations should be used to stop people
    from doing what they are lawfully entitled to do, unless the
    regulation is pursuant to a statute, obviously, in which
    Congress is given authority to change the rules.
        Senator Cruz. As you also know, Attorney General Eric
    Holder was held in contempt of Congress, criminal contempt of
    Congress. That was a bipartisan vote. Eighteen Democrats voted
    to hold Attorney General Holder in contempt. They did so
    because he refused to produce documents to Congress for
    Congress' investigation of the Fast and Furious scandal, a
    major scandal that resulted in the death of two Federal law
    enforcement officers.
        You have previously committed to Senators on this panel
    that, under your leadership, the Department of Justice will
    comply to the extent possible with requests from this
    Committee, and I want to, in the course of this question,
    associate myself with Senator Whitehouse's comments and
    questions. He and I disagree on a great many issues, but on
    this particular issue, we are emphatically in agreement that
    Senators from this Committee should get answers, should get
    candid answers, should get substantive answers, should get real
    answers from the Department of Justice, regardless of the party
    of the Senator asking that question, that that is a level of
    oversight that the American people have a right to expect. Do
    you agree with that?
        Judge Garland. I do think that this is a level of oversight
    the American people have a right to expect. I want the
    Department, if I am confirmed, to be responsive to the extent
    it is possible with respect to the Justice Department's
    appropriate equities, to be responsive to the requests for
    information.
        Senator Cruz. So you have had--previously you said you have
    read the executive summary of the Horowitz report. What was
    your reaction to the Horowitz report?
        Judge Garland. Well, I thought, as Mr. Horowitz explained--
    and I believe Director Wray agreed--there were problems with
    respect to the applications for a couple of FISAs, that those
    were not--they were not consistent with the internal
    regulations of the Department, and that those problems had to
    be corrected. And I think deeply that we have to be careful
    about how we use FISA, and that is the reason we have pretty
    strict regulations internally, and policies, and we need to
    find out why they are not followed and to be sure that they are
    followed. I understand that was the purpose of his report and
    his recommendations to Director Wray.
        Senator Cruz. So you described the report as saying there
    were problems. Necessarily, that is a fairly anodyne way of
    characterizing it, given the multiple material misstatements
    the Horowitz report details, including Mr. Clinesmith's
    fabrication of evidence and lying to a court, which he has now
    pleaded guilty to. I think that was yet another example of the
    deep politicization of the Department of Justice culminating in
    a meeting with the Acting Attorney General, President Obama,
    Vice President Biden in the Oval Office concerning the
    targeting of their political opponent.
        Will you commit to this Committee that, under your
    leadership, the Department of Justice will not target the
    political opponents of this administration and that there will
    be real scrutiny? What that report outlines, among other
    things, is weaponizing oppo research from the Hillary Clinton
    campaign and launching a criminal investigation based on that.
    Will you commit that that conduct will not be acceptable under
    any Department of Justice you are leading?
        Judge Garland. So, absolutely, Senator, but without trying
    to comment specifically on that matter, it is totally
    inappropriate for the Department to target any individual
    because of their politics or their position in a campaign. The
    only basis for targeting has to be evidence of the risk of a
    foreign intelligence problem or of a criminal problem. And that
    is a nonpartisan issue. That is a question of objective facts
    and law, and it can never be an effort to help one party or
    another party.
        However, in investigations and prosecutions, there is no
    party. The Department is an independent, nonpartisan actor, and
    that is my job to ensure that that is the case.
        Senator Cruz. Thank you.
        Chair Durbin. Thanks, Senator Cruz.
        We now understand that Senator Leahy is in Zoom range.
    Senator Leahy, do you read me?
        Senator Leahy. Can you hear me?
        Chair Durbin. I hear the voice.
        Senator Leahy. I assume there is a picture coming in here
    somewhere.
        Chair Durbin. Is there a way to turn up the volume so we
    can hear Senator Leahy? There he is.
        Senator Leahy. I am going to move this camera around just a
    little bit.
        Chair Durbin. All right. If you will----
        Senator Leahy. Okay.
        Chair Durbin. Take it away, Senator.
        Senator Leahy. Thank you very much. First off, Mr.
    Chairman, I am glad you are having these hearings.
        Judge, it is great to see you seated there. I wish 5 years
    ago we would have seen you seated there for your Supreme Court
    nomination, but I am glad you are here today.
        Judge Garland. Thank you, Senator.
        Senator Leahy. The nomination comes at probably the most
    vulnerable moment in the 151-year history of the Department,
    and you have got to restore the integrity and the respect of
    the Department. No small job, but I cannot think of anybody
    more qualified to do that.
        I know that a number of people have stated their support of
    you. One person I know and respect greatly, former FBI Director
    Judge Freeh, and I know he sent a letter. And, Mr. Chairman, if
    you do not mind, could we have that letter go in the record, if
    you have not already put it there.
        Chair Durbin. Without objection.
        Senator Leahy. Thank you.
        [The information appears as a submission for the record.]
        Senator Leahy. A lot of the things have already been
    covered, and, of course, you and I have talked before. Your
    experience in the Oklahoma City bombing, anybody who has been a
    prosecutor knows what a job you did there, and I do appreciate
    that.
        We have other things you will have to deal with: the Voting
    Rights Act, the John Lewis Voting Rights Act enforcement. We
    have seen that there has been a scourge of voter suppression,
    which would be wrong--I do not care who is being suppressed.
    Unless the Justice Department gets its tools back under the
    Voting Rights Act, I am afraid the right to vote is always
    going to be at risk, especially for minority and underserved
    communities.
        Do you agree that legislation like the John Lewis Voting
    Rights Advancement Act is urgently needed?
        Judge Garland. So, Senator, I do not know the specifics of
    the Act, although I certainly knew John Lewis well, and I was a
    great admirer. I think that with respect to voting, even in
    this last election, where a larger percentage of Americans
    voted than ever before, there was still a huge percentage that
    did not--at least a third did not vote. I think it is important
    that every American have the opportunity to vote. Voting is the
    central facet, the fulcrum of our democracy. So anything that
    can--any legislation that will encourage more voting, I
    strongly support.
        Specifically, you were referring to the Supreme Court's
    decision in the Shelby County case, which said that the
    coverage formula for preclearance could not be used as
    unconstitutional because of the then-state of the congressional
    record. But then the Court indicated that a different and
    stronger record might support preclearance, and I would be in
    favor, if I am confirmed, of working with the Committee and the
    Senate and the House to try and develop that record that would
    allow that important tool to be used.
        The Department still does have other tools. It has Section
    II, which remains in force, as the Supreme Court clearly said
    in Shelby County, and it prevents interference with voting
    practices and procedures, you know, that interfere with
    minorities' ability to vote. And it is something that the
    Department has always looked to as an important tool. There are
    plenty of other tools to increase the ability of Americans to
    vote, which I would support.
        Senator Leahy. Thank you. And I know Senator Lee has
    already raised this, but please know that Senator Lee and I
    will both be talking to you about privacy matters. This is not
    a partisan issue. It is an issue of concern, and we will do
    that.
        Let me ask you about another area that is of additional
    concern to me. In the Bush administration, the last Bush
    administration, they put a moratorium on the death penalty in
    Federal cases. They gave solid reasons for that, and that
    moratorium has lasted--or it did last from 2003 during the Bush
    administration, and then suddenly in the last 6 months, the
    Justice Department under the last President rushed to execute
    more people--this is what is stunning--in 6 months than had
    been executed in the past 60 years. That is a matter--many of
    us feel that was nothing short of being a killing spree. And
    what worries me, we all know the death penalty is used
    disproportionately against minorities and the poor. I was a
    prosecutor. I prosecuted many murder cases. But I always
    opposed the death penalty, and Vermont has gotten rid of
    theirs. I would much rather have somebody serve their time for
    years in a prison cell thinking of what they did wrong.
        Now, I am joining Senator Durbin and Senator Booker in
    reintroducing the Federal Death Penalty Act, which would end
    the Federal death penalty. So I would ask you this: Would you
    go back to what President Bush did and reinstate the Federal
    moratorium, which was lifted just in the last few months by the
    last administration, and reinstate it while Senator Durbin,
    Senator Booker, myself, and others work on the legislation
    eliminating the death penalty?
        Judge Garland. Well, as you know, Senator, President Biden
    is an opponent of the death penalty. I have to say that over
    those almost 20 years in which the Federal death penalty had
    been paused, I have had great pause about the death penalty. I
    am very concerned about the large number of exonerations that
    have occurred through DNA evidence and otherwise, not only in
    death penalty convictions but also in other convictions. I
    think a terrible thing occurs when somebody is convicted of a
    crime that they did not commit, and the most terrible thing
    happens if someone is executed for a crime they did not commit.
        It is also the case that during this pause we have seen
    fewer and fewer death penalty applications anywhere in the
    country, not only in the Federal Government but among the
    States. And as a consequence, I am concerned about the
    increasing almost randomness or arbitrariness of its
    application when you have so few number of cases.
        And, finally, and very importantly, is the other matter
    that you raise, which is its disparate impact. The data is
    clear that it has an enormously disparate impact on Black
    Americans and members of communities of color, and exonerations
    also, that something like half of the exonerations have to do
    with Black men.
        So all of this has given me pause, and I expect that the
    President will be giving direction in this area, and if so, I
    expect it not all unlikely that we will return to the previous
    policy.
        Senator Leahy. Thank you. I think my time is probably just
    about up, but I would also add, as Chairman of the
    Appropriations Committee, I am going to be talking to you about
    the Department of Justice and the grants they have on the
    Violence Against Women Act, VOCA grants, other such things. The
    moneys have had bipartisan support. Again, we have got to make
    sure they are done. Frankly, Judge, I am very happy you are
    here, but I have a feeling we are going to have a lot of
    conversations in the next few years.
        Judge Garland. Well, I hope that is the case, Senator. I
    would be happy to have conversations even if I am not
    confirmed, but I certainly prefer them if I am confirmed.
        Senator Leahy. You are going to be confirmed. I will bet my
    farm in Vermont on that.
        Judge Garland. I would never ask anybody to bet that,
    Senator.
        [Laughter.]
        Chair Durbin. Thank you, Senator Leahy.
        Senator Sasse.
        Senator Sasse. Thank you, Chairman.
        Congratulations, Judge, on your nomination, and thank you
    for the time you have spent in this process with those of us
    who wanted to grill you in private before you were here today
    in public.
        You are in the process of moving from Article III to
    Article II. Were you confirmed to the bench in 1996 or 1997?
        Judge Garland. 1997.
        Senator Sasse. Okay. In the 23 years, 24 years since you
    left an executive role, obviously the Article II branch has
    grown in power, and Article I seems to be shriveling in lots of
    ways. Do you have a theory of why Articles II and III are
    gaining more power in American life and Article I seemingly is
    weaker?
        Judge Garland. Well, that is, I would say, a cosmic
    question of our civic life. I do not really have an answer to
    that. Obviously, each branch has enormous powers authorized by
    the Constitution, and it may be, if this is the case, that the
    Congress has just not asserted itself as it should with respect
    to protecting its authorities.
        I do not have--to be honest, I am not enough of a political
    scientist to know exactly how this balance has changed. I am
    sure from the point of view of the Congress, its role has
    diminished. But, you know, sometimes I am sure the other
    branches feel the same way.
        Senator Sasse. Right. Well, I think it is a mix of
    overreach by Article II and underreach by Article I, so I am
    not asking the question in a way to put you on the defensive as
    if everything that is wrong is chiefly outside the Congress,
    because I think we are probably chiefly to blame.
        But you are going to become the most powerful law
    enforcement officer in the Nation, and obviously, you will have
    lots of prosecutorial discretion. But could you help us
    understand what the line is between prosecutorial discretion,
    which is understandable in any complex organization, and
    executive unilateralism, which I hope we can agree, at least at
    the definitional level, is a massive constitutional problem?
    What is the line?
        Judge Garland. So it is not the most easy line to outline.
    The Supreme Court's Cheney case is the best overall
    description. For the entire history of the country, prosecutors
    and Government agencies have had discretion to make decisions
    about how they allocate their resources in terms of enforcement
    priorities, both criminal and civil. And this has either
    generally been nonreviewable or deferentially reviewable in the
    courts.
        The opposite side of the line is that the executive branch
    cannot simply decide we are not going to enforce this law at
    all.
        Now, where a particular piece of conduct falls between
    those two is a difficult thing to say except in an individual
    case.
        Senator Sasse. Well, I mean, obviously in our tribal
    politics, it is easy for each part, when they are out of power,
    to say that the Article II branch is overreaching. But when you
    are in power, it turns out those mostly look like discretion.
    How do you think not just the Supreme Court line of cases but
    at the level of you being the boss of the AAG for OLC, for
    instance, how will you determine what actions are beyond the
    pale?
        Judge Garland. Well, I do think that when the Department
    makes determinations based on resources, on its views about
    which are the most important matters that it should go forward
    with, when it thinks that State and local governments are in a
    better position to handle those matters, any of those kind of
    factors are all perfectly appropriate for deciding to exercise
    prosecutorial discretion. But mere disagreement with the law
    passed by Congress or a decision that the Department will
    simply not enforce regardless of resources or other things
    would be impermissible.
        But, again, I think no matter how hard I try, I cannot put
    this in the perfect words, and I am sure maybe we will disagree
    in the future if I do get this position, but it will be out of
    a good-faith effort on my part to be sure that the Executive is
    only doing what it is supposed to do.
        Senator Sasse. I want to move on to another topic, but one
    more finer point on it. Is congressional inaction a legitimate
    basis for Article II to decide it just must act because it
    wishes policy were different and legislation does not move,
    therefore, you have a pen and a phone, can you just act because
    Congress did not?
        Judge Garland. Also, you are asking really tough questions
    of our basic constitutional structure. Doing so simply out of
    upset that Congress has not done what you want, obviously not
    okay. But in the formulation that Justice Jackson, whom I
    quoted in my opening, famously gave in the Youngstown Steel
    case, a President does have authorities. When he acts consonant
    with Congress, he is at his highest power. When Congress has
    not acted at all, he is left with only his own power which is
    clearly available under the Constitution, depending on the
    circumstance that we are talking about. And when he acts in
    contravention of Congress, he has only the authorities the
    Constitution gives him minus the authorities that the Congress
    has, and this is what Jackson famously referred to as ``the
    lowest ebb'' of the Executive's authority.
        So inaction is in the middle. You cannot do this just
    because Congress does not act, but the President can act if it
    is within his authority and he believes it is something in the
    public interest.
        Senator Sasse. Thanks. I want to switch gears a little bit.
    I was encouraged earlier when you said that the Department's
    purposes are to make sure--include among them to be sure that
    both the powerful and the powerless are treated equally. I want
    to talk about one case where that obviously has not happened,
    and that is the case of Jeffrey Epstein and his many, many
    victims of domestic and international sex trafficking.
    Obviously, he evaded justice for years, and when the Department
    did ultimately partner with local authorities, it allowed
    charges to be brought that did not befit the seriousness of his
    crimes. Infuriatingly, he was allowed to die by apparent
    suicide in Federal custody, despite the fact that everybody
    knew he was a suicide risk and many people would benefit from
    that outcome. And then, most recently, his estate has failed to
    pony up to make right on all of their obligations to compensate
    his victims.
        What do you think went wrong with the Department's handling
    of the Epstein case?
        Judge Garland. Senator, so my position as a judge, and also
    my previous position as a prosecutor, I have always been
    extremely careful not to comment about something without
    knowing the facts. The facts I know about the Epstein matter
    are the ones that I have read in the media and that I have seen
    on television, so I do not think--I am just not in a position--
    --
        Senator Sasse. We can agree that those are disgustingly
    embarrassing----
        Judge Garland. Absolutely.
        Senator Sasse [continuing]. About how weak the Department's
    pursuit of this evil man was.
        Judge Garland. Absolutely. But you asked me the why
    question, and I cannot answer the why question. But the values
    question I can answer. This is just horrendous, and he
    obviously should have been vigorously prosecuted substantially
    earlier. But I do not know the why.
        Senator Sasse. And he has co-conspirators who are still
    being held and pursued, and as you and I discussed in private,
    I hope that we will make sure that the Department prioritizes
    resources for this. Scores and scores of the women he
    victimized are just in their thirties now, but they have had so
    much of their lives stolen from them. And, obviously sex
    trafficking is a scourge of our time, and I really would hope
    that the Department continues to do an after-action review on
    why we have underinvested there.
        I have a couple more questions on the Department's China
    Initiative, but my time has expired, so I will follow up with
    that separately.
        Judge Garland. I look forward to it. Thank you.
        Chair Durbin. Senator Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman.
        I want to welcome you to the Committee, Your Honor.
        Judge Garland. Thank you.
        Senator Blumenthal. And I welcome your family as well, a
    very supportive and accomplished family, and say that among the
    qualities that you bring to this job, obviously your
    brilliance, your service as a judge are tremendously important,
    but I think the lesson today is that character counts in
    restoring the integrity and credibility of the leadership of
    the Department of Justice. I think that the character traits
    that you have demonstrated throughout your career are going to
    be most important: your resilience as well as your brilliance.
    You have been tested by adversity and the kind of values that
    you exemplified beginning when I think both of us served as
    prosecutors in the Department of Justice and first met. So I
    look forward to your inspiring more young attorneys to join the
    ranks of law enforcement and celebrate the accomplishments of
    those 115,000 professionals who every day help keep us safe.
        I welcome your commitment to combating violent extremism. I
    have supported and I am introducing a 9/11 Commission bill. But
    I want to turn to an area of violence that you raised, which is
    hate crimes, the growing incidence of hate crimes, especially
    against now certain groups, Asian Americans, I think is
    extraordinarily alarming. I have introduced a measure called
    the NO HATE Act. The Jabara-Heyer NO HATE Act would reform the
    penalties but also increase reporting. As you know, many of
    these crimes are underreported.
        I would like your commitment that you will support such a
    measure and enforcement of the existing penalties against hate
    crimes.
        Judge Garland. Well, you could not have any opposition from
    me in that matter, Senator. Hate crimes tear at the fabric of
    our society, make our citizens worried about walking on the
    street and exercising even their most normal rights. And the
    role of the Civil Rights Division is to prosecute those cases
    vigorously, and I can assure you that it will, if I am
    confirmed.
        Senator Blumenthal. Thank you. On gun violence, you have
    been asked a few questions by Senator Lee. Three years ago this
    month, Parkland occurred. Parkland, Sandy Hook, other places
    like Las Vegas have become shorthand for massacres that are
    true tragedies and also preventable by common-sense steps such
    as President Biden has supported and I have helped to lead in
    the Congress: universal background checks, safe storage
    measures, Ethan's law, closing the Charleston loophole, and, of
    course, emergency risk protection orders. Senator Graham and I
    have worked together on a measure that I am hoping we will
    reintroduce.
        One of your predecessors, William Barr, said about
    emergency risk protection orders, ``This is the single most
    important thing I think we can do in the gun control area to
    stop these massacres from happening in the first place.''
        William Barr and I did not agree on a lot, but I think I am
    of the opinion that it is an important step to take.
        Would you support these kinds of common-sense steps?
        Judge Garland. Yes, I do not know the specifics of all
    them. Certainly with respect to emergency risk orders, when
    somebody is acting out in a way that suggests that they are
    going to use violence against another human being, we have to
    be very careful that they do not get a weapon in their hands. I
    do not know the specifics of how the legislation would do that,
    but I do think that, yes.
        Senator Blumenthal. Well, I welcome your support to that
    extent for----
        Judge Garland. I do not mean to be non-supportive, but
    unless I know the specifics, it is very hard for me to make a--
    --
        Senator Blumenthal. I understand, and you are doing an
    excellent job of navigating your way through the requests for
    specific commitments. And, by the way, I understand sometimes a
    non-answer is the right way for you to go in this position.
        Judge Garland. Thank you, Senator.
        Senator Blumenthal. Let me say also I hope you will
    consider Executive orders. I understand that President Biden
    may have some under consideration, for example, closing the
    Charleston loophole, redefining the nature of a firearm to
    prevent ghost guns from populating the world, and other steps,
    and I hope you will consider using the existing authority
    through ATF and other agencies to take such action.
        I want to ask you about two areas that are of importance, I
    think, although they may not have reached a lot of public
    visibility. As you may be aware, the survivors of the 9/11
    tragedy have filed a lawsuit pursuant to the Justice Against
    Sponsors of Terrorism Act, JASTA. Senator Cornyn and I were
    strong advocates of JASTA. They have asked for information from
    the FBI in connection with that lawsuit. They have been denied
    that information under the state secrets privilege. In my view,
    there is no justification for failing to provide that
    information. I hope that you will consider taking prompt action
    to release it. I know that you cannot necessarily address it
    now, but I wrote to the Department of Justice last week, not to
    yourself but to your predecessor, and I hope that you will take
    that letter as a matter of priority.
        Judge Garland. If I am lucky enough to be confirmed, I will
    certainly get the letter, and I will give it my attention. Yes,
    I will.
        Senator Blumenthal. And, similarly, the Department of
    Justice Inspector General reportedly opened an investigation in
    September 2018 of the FBI's potential mishandling of the
    investigation into Larry Nassar's sexual abuse. I am sure you
    recall his prosecution.
        Judge Garland. I do.
        Senator Blumenthal. There was an Inspector General report
    that goes into the FBI's possible delay and malfeasance. That
    report is finished, we are told. I hope that it will be
    published promptly in the interests of the transparency value
    that you outlined so well.
        Judge Garland. I will definitely consult with the Inspector
    General, and I do believe in making those reports public to the
    extent permissible within the law.
        Senator Blumenthal. Thank you. And, finally, you may be
    aware that a number of my former colleagues, Attorneys General,
    have taken action against Exxon and other oil companies to hold
    them accountable for misleading and defrauding the public about
    climate change for decades. Nothing could be so important as
    the United States Department of Justice similarly taking action
    against gas and oil companies for lying to the American public
    about the devastating effects of these products on climate
    change. I hope you will consider taking action in that regard.
        Judge Garland. I guess from the way you began it feels like
    there is probably pending litigation on this matter already, so
    it is something I really should not be commenting on.
        Senator Blumenthal. Thank you very much, Judge.
        Judge Garland. Thank you, Senator.
        Chair Durbin. Thank you, Senator Blumenthal.
        Senator Hawley.
        Senator Hawley. Thank you, Mr. Chairman.
        Judge Garland, thank you for being here. Congratulations on
    your nomination.
        Judge Garland. Thank you, Senator.
        Senator Hawley. Since June of last year, the city of St.
    Louis and my home State of Missouri homicide rate is at its
    highest level since 1970. Eleven police officers have been
    shot, including former police officer David Dorn who was
    murdered in cold blood during rioting in the city this past
    summer. In Chicago, homicides are up 50 percent; in New York,
    40 percent; in L.A., 30 percent. Clearly, our criminal justice
    system is under renewed and fairly extreme strain.
        Can you tell me, if you are confirmed as Attorney General,
    what is the first thing you will do to confront this growing
    crisis?
        Judge Garland. I am sorry. Did you ask me what I would do
    or will I?
        Senator Hawley. What will you do? I assume you will do
    something. What will you do?
        Judge Garland. Yes, so, look, I am obviously--I have read
    the statistics myself, and I know that there is an upswing in
    violent crime. I am very concerned about it. When I was an
    Assistant U.S. Attorney, the number of murders--I joined at a
    time when the number of murders in the District of Columbia
    were more than twice the number of murders that they are now. I
    spent much of my early career on this problem of violent crime
    searching for the best possible ways to suppress it, going
    after violent repeaters being one of the best ways; going after
    violent gangs that supported violent action being another
    important way; putting resources in the places where they are
    necessary.
        Again, sitting here, and, therefore, only having been an
    observer of this from the outside, I do not know what
    information the Department has now, but I was a strong
    supporter and one of the developers of the Violent Crime
    Initiative during the time when I was in the Justice
    Department, and it may well be time for another one. I know
    that the administration of Attorney General Barr looked at this
    very closely as well.
        So I would have to look at, you know, what is going on in
    the Department right now and what more needs to be done. But I
    share your concern.
        Senator Hawley. Very good. Thank you for that.
        In the midst of this mounting crime wave, there has been
    increasing calls by some activists, including Members of the
    United States Congress, to defund the police. I have to tell
    you I think this sends exactly the wrong message to law
    enforcement who feel very much overburdened, underpaid, under
    siege, and also sends the wrong message to folks who are
    suffering from this violent crime wave, especially working-
    class communities.
        Tell me what your position is on defunding the police. Do
    you support this movement? Will you support it as Attorney
    General?
        Judge Garland. Well, as you no doubt know, President Biden
    has said he does not support defunding the police, and neither
    do I. We saw how difficult the lives of police officers were in
    the body cam videos we saw when they were defending the
    Capitol. I do believe and President Biden believes in giving
    resources to police departments to help them reform and gain
    the trust of their communities.
        I do believe, and I believe he does as well, that we do
    need to put resources into alternative ways of confronting some
    actors, particularly those who are mentally ill and those who
    are suicidal so that police officers do not have to do a job
    that they are not trained for and that from what I understand
    it, they do not want to do. And so those resources need to go
    to mental health professionals and other professionals in the
    community so that the police can do the job that they have
    trained for and so that confrontations, if possible, do not
    lead to deaths and violence.
        Senator Hawley. Let me ask you about assaults on Federal
    property in places other than Washington, DC. Portland, for
    instance, Seattle. Do you regard assaults on Federal
    courthouses or other Federal property as acts of domestic
    extremism, domestic terrorism?
        Judge Garland. Well, Senator, my own definition, which is
    about the same as the statutory definition, is the use of
    violence or threats of violence and attempt to disrupt
    democratic processes. So an attack on a courthouse while in
    operation, trying to prevent judges from actually deciding
    cases, that plainly is domestic extremism, domestic terrorism.
    An attack simply on Government property at night or any other
    kind of circumstances is a clear crime and a serious one and
    should be punished. I do not mean--I do not know enough about
    the facts of the example you are talking about, but that is
    where I draw the line. One is--both are criminal, but one is a
    core attack on our democratic institutions.
        Senator Hawley. Let me ask you about something that some
    progressive groups have recently been saying with regard to
    you. The Progressive Change Campaign Committee, which is a
    left-wing activist group that does fundraising for Democrat
    Party causes, is circulating a petition addressed to you that
    states, and I quote now, ``Trump and his criminal network of
    associates must be investigated and prosecuted for law
    breaking.'' This, of course, against the backdrop, Judge, of
    groups who are keeping lists of people who worked at the White
    House, including lists of interns who worked at the White
    House, trying to prevent them from getting jobs, trying to
    prevent them from working, whether it is in politics or
    government or anywhere else again.
        We have seen--Senator Cruz I know asked you about political
    targeting. I have to say I am very concerned about the specter
    of political targeting because it has happened before. It
    happened in the Obama-Biden administration. It happened--it
    culminated in lies told to the FISA Court during the last
    administration with the FBI and, sadly, the Department of
    Justice signed off on submissions to the FISA Court which, as
    you know, were falsified, actively falsified, leading to an
    unprecedented and historic rebuke from that court.
        My question is: Given this pressure campaign already being
    mounted toward you--this petition I just quoted is addressed to
    you personally--if you are confirmed, will you resist the calls
    and efforts by political groups to politicize the Department of
    Justice, to use political targeting? Will you adhere to the
    statute right down the middle and enforce the law fairly and
    equally?
        Judge Garland. Senator, I have been a judge now for almost
    24 years. People on one side or the other of every single case
    think I have done the wrong thing in that case, because both
    sides cannot win. I have grown pretty immune to any kind of
    pressure other than the pressure to do what I think is the
    right thing given the facts and the law. That is what I intend
    to do as the Attorney General. I do not care who pressures me
    in whatever direction.
        The Department, if I am confirmed, will be under my
    protection for the purpose of preventing any kind of partisan
    or other improper motive in making any kind of investigation or
    prosecution. That is my vow. That is the only reason I am
    willing to do this job.
        Senator Hawley. Do you agree that what the Department of
    Justice and the FBI did in misleading, deliberately misleading
    a FISA Court, submitting false information to a FISA Court,
    submitting falsified information and evidence to a FISA Court,
    drawing the rebuke of that court, do you agree that that was an
    egregious violation of public trust?
        Judge Garland. I think a false statement to a court is a
    terrible thing. It is--I was going to say ``obstruction of
    justice,'' and it may well be, but that is a very specific
    concern. But I can tell you how angry judges get when they
    learn that somebody who has made an application to them has not
    told them the complete truth or has spun the truth in any way.
    You will hear those statements by judges all the time, and
    appropriately so.
        Senator Hawley. Very good. Well, thank you, Judge, and I
    hope if you are confirmed that you will indeed be that guardian
    to make sure that the rule of law is fairly enforced equally
    and that it is not used for political purposes.
        Mr. Chairman, my time counter does not work. Has my time
    expired?
        Chair Durbin. Yes.
        Senator Hawley. All right. Thank you very much, Judge.
        Thank you, Mr. Chairman.
        Chair Durbin. Senator Hirono, are you within Zoom range?
        Senator Hirono. Yes.
        Chair Durbin. Take it away.
        Senator Hirono. Thank you, Mr. Chairman.
        Welcome, Judge Garland. It is nice to see you again.
        Judge Garland. Thank you.
        Senator Hirono. I want to start with two preliminary
    questions that I ask every nominee who comes before any of the
    Committees on which I sit, and these two questions are: Since
    you became a legal adult, have you ever made unwanted requests
    for sexual favors or committed any verbal or physical
    harassment or assault of a sexual nature?
        Judge Garland. No.
        Senator Hirono. Have you ever faced discipline or entered
    into a settlement related to this kind of conduct?
        Judge Garland. No.
        Senator Hirono. Judge Garland, considering that we just had
    a President that did not think the rule of law applied to him,
    I am gratified to hear that so many of my Republican colleagues
    are asking you whether you as Attorney General will follow the
    rule of law, and, of course, you will.
        I want to get to consent decrees because I do not think
    that you have been asked about consent decrees yet. The Justice
    Department's Civil Rights Division has described consent
    decrees as, I quote, ``most effective in ensuring
    accountability, transparency, and flexibility for accomplishing
    complex institutional reforms.''
        So despite their effectiveness, however, the Trump
    administration was openly hostile to consent decrees. In
    November 2018, Attorney General Jeff Sessions issued a memo
    that drastically curtailed their use in bringing police
    departments into compliance with the Constitution. The result
    was that the Trump administration did not enter into a single
    new consent decree with any law enforcement agency suspected of
    systemic abuse of constitutional rights, and they also actively
    undermined existing consent decrees, all this while excessive
    force by police in Minneapolis, Louisville, Kenosha, and other
    cities led to one of the biggest social justice movements this
    country has ever seen.
        What is your view, Judge Garland, of the role of pattern-
    or-practice investigations and consent decrees in addressing
    civil rights abuses by police?
        Judge Garland. Thank you for this question, Senator. I
    think police accountability is an essential element of the
    ability of a police department to have credibility with the
    community, and without credibility and trust, a police
    department cannot do its job of ensuring the safety of the
    community.
        Police officers who violate the Constitution must be held
    accountable, and police officers who follow the Constitution
    want police officers who don't to be held accountable for just
    that reason, because it leads to a taint on all police
    officers, which would be unfair.
        Congress has given the Justice Department the authority and
    the responsibility to investigate patterns or practices of law
    enforcement entities' conduct that violate the Constitution and
    laws of the United States. That is the statutory responsibility
    of the Justice Department. And so it is an important tool the
    Department has for ensuring accountability.
        The statute further provides that if the Department finds
    this pattern or practice of unconstitutional conduct, it can
    seek equitable remedies from the court. And one of the kinds of
    equitable remedies which has proven effective in the past are
    consent decrees. So where they are necessary to assure
    accountability, it is very important that we use that tool.
        That is not the only tool available to the Justice
    Department. We can use grantmaking to provide funds for police
    departments to reform themselves, to make themselves more
    accountable. We can provide technical assistance; we can
    provide incentives. All of these are a set of tools, and the
    Justice Department has been given these tools by the Congress,
    and it should use all of them.
        Senator Hirono. So you emphasize accountability of police
    departments and the Justice Department's consent decrees,
    which, by the way, are not just one-sided. They are entered
    into, as I understand it, after much dialogue and discussion
    with the affected police departments, so they are definitely a
    tool.
        By your answer, I hope that you plan to reengage the
    Justice Department in enforcing and abiding by the existing
    consent decrees, because I noted that the previous
    administration had undermined the existing consent decrees.
        Judge Garland. Well, I think if there is an existing
    consent decree, then we are certainly going to require
    adherence to it, yes.
        Senator Hirono. You have been asked a number of questions
    about, in my view, the active voter suppression laws that are
    being enacted, particularly, of course, after the Shelby County
    decision that gutted one of the major provisions of the Voting
    Rights Act, leaving Section 2 that still gives the Attorney
    General's office some tools to go after those States that are
    contemplating legislation that, in effect, will result in voter
    suppression.
        Are you aware of any instance of widespread voter fraud in
    the 2020 Presidential election or, for that matter, any other
    election?
        Judge Garland. No, Senator. All I know, of course, is what
    I have been able to glean from the public reports of Government
    agencies. The Department of Homeland Security in the previous
    administration publicly described the last election as the
    ``most secure in American history.'' Some 60 or more courts
    rejected claims of fraud in the election, some on legal
    grounds, but many after providing an opportunity for the
    submission of evidence and rejected the evidence that was
    submitted as insufficient. And Attorney General Barr authorized
    the U.S. Attorneys to investigate voter fraud after the
    election and before certification, and at the conclusion, he
    announced that the Department had not found evidence
    sufficiently material of widespread voter fraud to have had an
    effect on the election.
        Senator Hirono. Thank you, Judge Garland. I am running out
    of time. I just wanted to reiterate that I heard in an earlier
    response that you would work with Congress to determine whether
    a preclearance provision should be reenacted.
        There is one other thing that I wanted to note, and that is
    your acknowledgment that hate crimes against the AAPI community
    is definitely rising, and that you will do everything you can
    to make sure that there is enforcement of the laws against
    these kinds of crimes. And I just noted that just a few weeks
    ago, an 85-year-old man died after he was abruptly attacked
    while out on a morning walk in San Francisco. And in Oakland's
    Chinatown neighborhood, a man violently shoved and injured a
    91-year-old man, a 60-year-old man, and a 55-year-old woman,
    and in each of these cases, the victims were AAPI community
    members.
        Thank you. I do have additional questions. I will wait for
    round two. Thank you.
        Judge Garland. Thank you, Senator.
        Chair Durbin. Thanks, Senator Hirono.
        Senator Cotton.
        Senator Cotton. Judge, welcome.
        Judge Garland. Thank you, sir.
        Senator Cotton. I want to return to Senator Grassley's
    questions about the Durham investigation. Senator Grassley
    asked you if you would commit specifically to ensure that John
    Durham had the staff, the resources, and the time that he
    needed to complete that investigation. You said you did not
    have the info yet, that you needed to speak to him, but you had
    no reason to think that him staying on was not the correct
    decision.
        Judge Garland. That is correct, Senator, yes.
        Senator Cotton. Why can't you commit specifically to saying
    that he will have the time, staff, and resources he needs to
    complete his investigation?
        Judge Garland. Well, again, it is because I am sitting here
    and I do not have any information about what he needs and his
    resources and the allocation of resources. But everything I
    know sitting here suggests that he should, of course, have
    those resources.
        Senator Cotton. Judge, 2 years ago, Bill Barr made that
    exact commitment about the Mueller Special Counsel. He did not
    have that information. He had not consulted with the
    Department. He was in the same posture you are. He simply said,
    ``yes.'' Why can't you say ``yes'' today, the way Bill Barr did
    2 years ago?
        Judge Garland. Again, my view about every investigation and
    every decision I make is, I have to know the facts before I can
    make those kind of decisions. I do not know what went into his
    consideration, but for myself, I have to be there and learn
    what is going on before I can make a decision. But as I said, I
    have no reason to doubt that the decision to keep him in place
    and to continue in his investigation was in any way wrong.
        Senator Cotton. Was it wrong for Bill Barr to make that
    commitment 2 years ago?
        Judge Garland. As I said, Senator, I am not going to be
    making judgments about my predecessors. I do not think there is
    any purpose in that. For myself, I want you to judge me on my
    own record and what I do going forward.
        Senator Cotton. Was it wrong for Democratic Senators on
    this Committee to repeatedly demand that Bill Barr make that
    commitment 2 years ago?
        Judge Garland. I think my answer would be the same.
        Senator Cotton. Okay. Let us turn to the death penalty. You
    said that you developed great pause over it, and you said that
    Joe Biden expresses opposition to the death penalty. Did Joe
    Biden or anyone from his administration, transition, or
    campaign ask you not to pursue capital punishment in cases
    against murderers or terrorists?
        Judge Garland. No.
        Senator Cotton. Thank you. Judge, you spoke at the outset,
    as did perhaps several other Senators, about your outstanding
    work in the 1995 Oklahoma City bombing case in which you were
    part of a team that helped to bring to justice a white
    supremacist mass murderer, Timothy McVeigh. He was sentenced to
    death. That death penalty has been carried out. Do you regret
    the fact that Timothy McVeigh received the death penalty and
    has been executed?
        Judge Garland. Look, I supported, as I said in my original
    Senate hearing when I became a judge originally, I supported
    the death penalty at that time for Mr. McVeigh in that
    individual case. I do not have any regret. But I have developed
    concerns about the death penalty in the 20-some years since
    then, and the sources of my concern are issues of exonerations
    of people who have been convicted, of sort of arbitrariness and
    randomness of its application because of how seldom it is
    applied and because of its disparate impact on Black Americans
    and members of other communities of color. Those are the things
    that give me pause, and those are things that have given me
    pause over the last--you know, as I have thought about it over
    the last 20 years.
        Senator Cotton. Judge, if you were confirmed as Attorney
    General and there was another case like Timothy McVeigh's where
    a white supremacist bombed a Federal courthouse, killing 168
    Americans, including 19 children, and your U.S. Attorney sought
    your approval for the death penalty, would you give him that
    approval?
        Judge Garland. So I think it depends on what the
    development of the policy is. If the President asks or if we
    develop a policy of a moratorium, then it would apply across
    the board. There is no point in having a policy if you make
    individual discretionary decisions. So if that is the policy,
    then that would be the policy.
        Senator Cotton. Judge, you said in your opening statement
    and, in addition, to several questions from Senators that you
    would strictly regulate communications between the White House,
    that there would be no partisan influence. So is this a case in
    which there would be influence from the White House in
    individual cases if the U.S. Attorney was seeking the death
    penalty against a white supremacist domestic terrorist?
        Judge Garland. Oh, I understand the question. I am sorry.
    Maybe I did not understand it before. What I am trying to say
    here is if there was a policy decision made by the President
    and announced by the President, he certainly has the authority
    to direct--and nothing inappropriate about it; it is within his
    authority to require an across-the-board moratorium. This is
    not--what I was talking about was not a decision by the
    President in any particular case or the direction of how any
    particular case should go forward, but of a moratorium which
    would apply as a policy across the board.
        The Supreme Court has held that the death penalty is
    constitutional, but it is not required, and that is within the
    discretion of the President.
        Senator Cotton. Before I move on from the Oklahoma City
    case, let me just commend you again for your work on it and say
    that I believe Timothy McVeigh deserved the death penalty.
        Judge Garland. Thank you, Senator.
        Senator Cotton. Another case involves Dylann Roof, a white
    supremacist from South Carolina, who went into an African-
    American church and killed nine African Americans in a racially
    motivated terrorist attack. The Obama Department of Justice
    sought the death penalty against him and received it. Do you
    believe that was a mistake?
        Judge Garland. I am sorry?
        Senator Cotton. Do you believe it was a mistake to seek the
    death penalty against Dylann Roof for murdering nine African
    Americans as they worshipped in church?
        Judge Garland. I know I am not supposed to be asking you
    the questions, but I have a feeling that this is still a
    pending matter, and if it is, I cannot talk about a particular
    case.
        Senator Cotton. In that case, let me ask you the
    hypothetical----
        Judge Garland. I apologize for asking you because I know
    that is not my----
        Senator Cotton. Let us suppose that another white
    supremacist walks into another African-American church and
    murders African Americans worshipping Christ in cold blood. The
    U.S. Attorney seeks the death penalty against that white
    supremacist. Would you approve it?
        Judge Garland. Again, Senator, I think it does depend on
    what policy is adopted going forward. I would not oppose a
    policy of the President because it is within his authority to
    put a moratorium on the death penalty in all cases, and instead
    to seek mandatory life without possibility of parole, without
    any consideration of the facts of any particular case.
        Senator Cotton. Some on the left are calling for President
    Biden to grant an across-the-board commutation to all Federal
    death row inmates to reduce their sentence to life in prison.
    Would you recommend to President Biden that he make such an
    across-the-board commutation?
        Judge Garland. This is one of the ones that I would have to
    think about and which I have not thought about, and I would
    have to, you know, consult with the administration on such an
    across-the-board policy. I have not thought about that.
        Senator Cotton. Thank you.
        I want to turn to racial equity. Do you agree that a core
    concept, Judge, of American law is that the Government cannot
    discriminate against a citizen on the basis of their race?
        Judge Garland. Absolutely. Equal justice under the law,
    written right there on the pediment above the Supreme Court.
        Senator Cotton. And not only is it unlawful, it is morally
    wrong as well?
        Judge Garland. Yes, I think discrimination is morally
    wrong, absolutely.
        Senator Cotton. Are you aware that President Biden has
    signed an Executive order stating that his administration will
    affirmatively advance racial equity--not racial equality but
    racial equity?
        Judge Garland. Yes, and I read the opening of that
    Executive order, which defines equity as the fair and impartial
    treatment of every person without regard to their status, and
    including individuals who are in underserved communities where
    they were not accorded that before. But I do not see any
    distinction between--in that regard. That is the definition
    that was included in that Executive order that you are talking
    about.
        Senator Cotton. So to you racial equity and racial equality
    are the same thing?
        Judge Garland. This is a word that is defined in the
    Executive order as I just said it, so I do not know what else--
    I cannot give you any more than the way in which the Executive
    order defined the term it was using.
        Senator Cotton. Thank you, Judge.
        Chair Durbin. Senator Booker.
        Senator Booker. Thank you, Mr. Chairman.
        Judge Garland, it is really good to see you sitting before
    the Judiciary Committee of the United States Senate.
        Judge Garland. Thank you, Senator.
        Senator Booker. I am really grateful.
        If you do not mind me starting a little bit with
    philosophy, there is the Micah Mandate, which I am not sure by
    your expression you know, but you have heard it before. It is
    do justice, love mercy.
        Judge Garland. That mandate I do know, yes.
        Senator Booker. And walk humbly. It seems like a pretty
    good mandate for life.
        Judge Garland. Yes.
        Senator Booker. And this idea of justice to me is
    fundamental to the ideals of the Nation, founded with a lot of
    injustice at the time, but the brilliance of the imperfect
    geniuses of our Founders who aspired to create a society that,
    you know, John Lewis and others would have called ``the more
    beloved community.'' And one of my--an activist I have read a
    lot, a theologian, said, ``What does love look like in public?
    It looks like justice.'' And you have, to me, perhaps one of
    the more important positions on the planet Earth for trying to
    create a more just society. And the issues of race--and I was
    really grateful that you in your opening remarks talked about
    your agency actually coming about to deal with issues of
    justice in our Nation.
        I want to talk to you about white supremacist violence,
    which has been mentioned a lot, but before I get there, I am
    actually concerned with something that I consider pernicious
    and very difficult to root out, which is the realities of
    implicit racial bias that lead to larger systemic racism.
        Now, I have been kind of stunned that the issue of systemic
    racism has become something argued over, but if I can just walk
    you through for a second, does our justice system treat people
    equally in this country at this point?
        Judge Garland. Sadly, and it is plain to me that it does
    not.
        Senator Booker. And I am going to stop you there. Bryan
    Stevenson says we have a criminal justice system that treats
    you better if you are rich and guilty than if you are poor and
    innocent because one's finances make a difference often with
    what kind of justice one gets. Is that correct?
        Judge Garland. Senator, there is no question that there is
    disparate treatment in our justice system. Mass incarceration
    is a very good example of this problem. You know, we are
    incarcerating almost 25 percent of the world's prison
    population, and we have something like 5 percent of the world's
    population. I do not think that is because Americans are worse.
    But what underlies that is the disparate treatment of Blacks
    and communities of color.
        Senator Booker. Well, let us drill down on that for a
    second.
        Judge Garland. Yes.
        Senator Booker. So one of the big things driving arrests in
    our country, stunningly to me even that it is still the case,
    is marijuana arrests. We had in 2019 more marijuana arrests for
    possession than all violent crime arrests combined.
        Now, when you break out that data and disaggregate along
    racial lines, it is shocking that an African American has no
    difference in usage or selling than someone who is white in
    America, but their likelihood of being arrested for doing
    things that two of the last four Presidents admit to doing is 3
    to 4 times higher than somebody white.
        Is that evidence that within the system there is implicit
    racial bias? ``Yes'' or ``no,'' sir.
        Judge Garland. Well, it is definitely evidence of disparate
    treatment in the system, which I think does arise out of
    implicit bias. Unconscious bias, maybe; sometimes conscious
    bias.
        Senator Booker. And I think that is a fair point.
    Unconscious or conscious, nonetheless it results in a system.
    And I have had great conversations with people on both sides of
    the aisle, heads of think tanks that all speak to this as
    abhorrent to American ideals, that we still have a system that
    so disparately treats people at every point. The station house
    adjustment, which I know you know what that is, which I have
    seen happen as a mayor, that people get called in or are
    arrested for possession of marijuana, and the police make a
    decision like just, you know, leave, and your parents come and
    whatever, and it is dismissed with.
        We see from station house adjustments to charging, to bail,
    to sentencing, every objective analysis has shown that race
    right now in our country is still playing a specific influence
    in the justice system that someone gets. You are aware of all
    of this, yes?
        Judge Garland. I am, and this is a particular part of the
    reason at this moment I think I wanted to be the Attorney
    General. I want to do the best I can to stop that.
        Senator Booker. Right, and I want to get to that. The point
    that a lot of my folks are making and you just made, it does
    not mean that the people who are engaged in this are racist
    overtly. It means that they have an implicit racial bias that
    often leads them to make different decisions about different
    people. That is correct?
        Judge Garland. Yes. It also--the marijuana example is a
    perfect example that you have given here. Here is a nonviolent
    crime with respect to usage that does not require us to
    incarcerate people. Then we are incarcerating at different
    rates, significantly different rates of the different
    communities. And that is wrong, and it is the kind of problem
    that will then follow a person for the rest of their lives. It
    will make it impossible to get a job. It will lead to a
    downward economic spiral for their family.
        Senator Booker. Right. And so to that point, and now to
    your point I cut you off from before, now I would like to give
    you a chance to answer that. Here you are in an agency that was
    formed to deal with the kind of systemic racism that was going
    on at that time. When you have disparate use of the law, where
    you see African Americans being churned into the criminal
    justice system, where it is concentrated in certain communities
    and not in others, where it has, as the American Bar
    Association says, 40,000 collateral consequences on the lives
    of those African Americans, where they cannot get loans from
    banks, they cannot get jobs, they cannot get certain business
    licenses, where it is so dramatic that there are estimates that
    it costs literally to African Americans in the persistence of a
    wealth gap in our country, where Black families have one-tenth
    the wealth of white families. If you just look at the impact of
    the law and the disparate impact on just marijuana, it is
    estimated to cost African-American communities in this country
    billions of dollars more.
        My question to you now is: Assuming this position where you
    are called upon for that Micah Mandate, what are you going to
    do about this outrageous injustice that persists and infects
    our society with such a toll on Black and Brown communities?
        Judge Garland. So there are many things that the Justice
    Department has to do in this regard, and I completely agree
    that disparate results with respect to wealth accumulation,
    discrimination in employment, discrimination in housing,
    discrimination in health care availability, all of which we all
    see now in the consequences of a pandemic which affects
    communities of color enormously more with respect to infection
    rates, with respect to hospitalization, and ultimately to
    death.
        So one set of things we can do is the mass incarceration
    example that I began with. We can focus our attention on
    violent crimes and other crimes that put great danger in our
    society and not allocate our resources to something like
    marijuana possession. We can look at our charging policies and
    stop charging the highest possible offense with the highest
    possible sentence----
        Senator Booker. I was taught in law school never to
    interrupt a judge of your import, so forgive me.
        Judge Garland. I do not think that applies here.
        Senator Booker. I would like to end with this question, and
    then my time is up.
        Judge Garland. Yes.
        Senator Booker. You have talked to me a lot about your
    thoughts about this, and I have been really inspired. But it
    gets back, to me, to your conviction in this issue and your
    determination to go down--at a time when our Nation needs this,
    to go down as one of the great leaders when it comes to dealing
    with the daily unconscionable injustices faced by some
    Americans and not others at the hands of law enforcement. And I
    think that one thing you said to me privately particularly
    motivated me to believe you when you talk about your
    aspirations. I am wondering if you could just conclude by
    answering the question about your motivation and maybe some of
    your own family history in confronting hate and discrimination
    in American history.
        Judge Garland. Yes, Senator. So, you know, I come from a
    family where my grandparents fled anti-Semitism and
    persecution. The country took us in and protected us. And I
    feel an obligation to the country to pay back, and this is the
    highest, best use of my own set of skills to pay back. And so I
    want very much to be the kind of Attorney General that you are
    saying I could become, and I will do my best to try and be that
    kind of Attorney General.
        Senator Booker. I believe your heart, and I am grateful
    that you are living that Micah Mandate.
        Chair Durbin. Thank you, Senator Booker.
        I am going to make a motion to introduce into the record
    letters of support for Judge Garland's nomination. There are 25
    different categories of letters of support. I am struck
    immediately by the diversity of support that you have: 150
    former Attorneys General and top Department of Justice
    officials; Alberto Gonzales, Michael Mukasey, Eric Holder,
    Loretta Lynch. The list goes on and on. Dozens of former
    Federal judges, former State Attorneys General. For you to have
    both the National Sheriffs' Association, the Fraternal Order of
    Police, and the Leadership Conference on Civil and Human Rights
    is an amazing political achievement.
        And the list goes on: advocates for crime victims and
    survivors, former FBI Director Louis Freeh. Senator Lee
    mentioned the Levi children and grandchildren. They both have
    written letters of support for you.
        I wanted to take a moment, in light of your closing
    statement from this round, to tell you that your work and your
    life has been recognized across the board. This array of
    letters of support speaks to fairness and honesty in the way
    that you have dealt with your legal profession and your public
    service.
        So, without objection, I will introduce these letters of
    support for your nomination into the record.
        [The information appears as submissions for the record.]
        Chair Durbin. And now we are going to take a lunch break,
    and I am going to declare--I guess I have the power to do that
    now--that we will return at 1:40, and the first person up will
    be from the sovereign State of Louisiana, John Kennedy, and we
    will all anxiously await his contribution. So let us stand in
    recess.
        Judge Garland. Thank you.
        [Whereupon the hearing was recessed and reconvened.]
        Chair Durbin. The hearing will resume.
        Senator Kennedy of Louisiana.
        Senator Kennedy. Thank you, Mr. Chairman.
        Good afternoon, Judge.
        Judge Garland. Nice to see you, Senator.
        Senator Kennedy. Good to see you, sir. I want to follow up
    a little bit on something that Senator Booker talked about.
    What, to you, is justice?
        Judge Garland. Everybody treated equally, regardless of
    their position in society--powerful, powerless, rich, poor,
    Republican, Democrat, Black, white: Equal justice under the
    law.
        Senator Kennedy. I want to go a little further, press you a
    little bit on that. Is it justice if you have an unjust law
    that is applied equally?
        Judge Garland. Well, no. The unjust law is itself the lack
    of justice.
        Senator Kennedy. Let's narrow it down to punishment
    injustice. If I suggested to you that justice in the concept of
    punishment is when someone gets what he deserves, would you
    agree or disagree with that?
        Judge Garland. I supposed that depends on what ``gets what
    he deserves'' means. But yes, I think justice requires
    individualized determination of the kind of crime you did, you
    know, and the mitigating circumstances, yes.
        Senator Kennedy. Well, let me put it another way. Is a
    person who commits a crime a sinner, in the moral sense, or a
    sick person?
        Judge Garland. This is, again, probably beyond my
    competence. I think with justice comes mercy, and so I think we
    have to take into consideration all different kinds of things.
    I also think that the kind of crime that we're talking about is
    relevant to the question of what kind of person it is. So I am
    not sure exactly what you are asking me. I am not trying to be
    evasive. I just don't know exactly what you are asking me.
        Senator Kennedy. Okay. Let me shift gears here. Were you
    Chief Judge when the coronavirus hit us?
        Judge Garland. Unfortunately for my successor, my term ran
    out just before coronavirus hit us.
        Senator Kennedy. Well, if you had been Chief Judge----
        Judge Garland. Yes.
        Senator Kennedy [continuing]. Would you have adopted a rule
    that said if one of our employees in the court gets coronavirus
    and goes to the hospital, and is treated, and is released, and
    wants to come back to work at the court, it would be
    discriminatory to ask them to take a coronavirus test?
        Judge Garland. No.
        Senator Kennedy. Okay. Isn't that what happened with a lot
    of our nursing homes throughout the country?
        Judge Garland. You know, I honestly don't know what
    happened with the nursing homes. I don't know what they were
    doing with respect to--I am sorry. Again, I am not trying to be
    evasive. I really don't know the facts here. I mean, I think in
    the example you gave me, there is nothing discriminatory about
    asking people who might be infected, from a public health point
    of view, to be sure they don't infect other people, and if a
    determination is made they are not infected then, of course,
    that is the end of it. Equal treatment does not mean we don't
    take into consideration the possibilities of different degrees
    of health in a particular circumstance, and I honestly don't
    know what happened with the nursing homes. I know that it was
    terrible that many people got COVID in the nursing homes, and
    it was a major vector in the spread of the infection. But I
    don't know why that was, except that they are people cooped up
    in one place, and then it is easy to spread that way.
        Senator Kennedy. All right. I think science tells us that
    keeping our schools closed has a disproportionate impact on
    poor people and children from poor families and on families
    included, but not limited to, children of color. At what point
    do you think our refusal of some of our leadership in our
    schools to reopen becomes a civil rights violation?
        Judge Garland. So, Senator, I completely agree with your
    description of the consequences of the school closing.
        I tutor two children in a neighborhood in Washington, DC,
    where most of the students in the school are people of color,
    and I have been able to tutor them by Zoom every week, and they
    are taking classes by Zoom. And it is much more difficult,
    obviously, for them, although they have done terrifically, not
    because of me but they have, than it would be with people with
    other resources.
        So I think that public officials have to weigh very serious
    competing concerns with respect to how to deal with COVID.
    There is just no doubt about it. On the one hand, we have to be
    very worried about setting kids back in their schooling, and,
    on the other hand, we have to be very worried about not
    spreading the disease in a way that kills them or, more
    importantly, or more likely, their parents or their
    grandparents.
        Senator Kennedy. Judge----
        Judge Garland. And I don't want to be the person who makes
    that judgment.
        Senator Kennedy. I understand, and I get it. Sorry to
    interrupt. I hate----
        Judge Garland. No, no. I am sorry. I interrupted you.
        Senator Kennedy. I just have limited time.
        You had written, in one of your opinions, and I am going to
    read--I know you haven't memorized all of your opinions. You
    said the Constitution, quote, ``does not contemplate that the
    District''--the District of Columbia--``may serve as a State
    for purposes of the apportionment of congressional
    representatives. That textual evidence is supported by
    historical evidence concerning the general understanding at the
    time of the District's creation.'' Is that still your
    considered opinion?
        Judge Garland. Yes, and I would say that that is the case,
    one of my earliest cases, which taught me what it means to be a
    judge, which is to do something the opposite of what you would
    do if you had a public policy concern. I think that citizens of
    the District of Columbia should be able to vote, but I didn't
    think that the Constitution gave me authority, on my own, to
    give it to them. And it made me sad but it reaffirmed my role
    as a judge.
        Senator Kennedy. Okay. In my last 20 seconds I am going to
    ask you if you agree with this statement. Allowing--and I am
    not suggesting the answer one way or the other. I just want to
    know what you believe. Allowing biological males to compete in
    an all-female sport deprives women of the opportunity to
    participate fully and fairly in sports and is fundamentally
    unfair to female athletes.
        Judge Garland. This is a very difficult societal question
    that you are asking me. I know what underlies it.
        Senator Kennedy. I know, but you are going to be Attorney
    General.
        Judge Garland. Well, but I may not be the one who has to
    make policy decisions like that, but it is not that I am
    adverse to it. Look, I think every human being should be
    treated with dignity and respect. That is an overriding sense
    of my own character but an overriding sense of what the law
    requires.
        The particular question of how Title 9 applies in schools,
    is one, in light of the Bostic case, which I know you are very
    familiar with, is something that I would have to look at when I
    have a chance to do that. I have not had a chance to consider
    these kinds of issues in my career so far. But I agree that
    this is a difficult question.
        Senator Kennedy. Thank you, Judge.
        Chair Durbin. For his first question as a Member of the
    Senate Judiciary Committee, Senator Alex Padilla.
        Senator Padilla. Thank you, Mr. Chairman.
        Judge Garland, and to your family, thank you for your many,
    many years of public service, and should you be fortunate
    enough to be confirmed in this next chapter.
        I have spent a little bit more than 20 years in public
    service myself, in different capacities, including the prior 6
    years, prior to my appointment to the Senate, as California's
    Secretary of State and Chief Elections Officer. My mission, in
    that role, was to increase voter participation and ensure free
    and fair elections.
        As the country has become more diverse, not just States
    like California and New York but throughout the Nation, it is
    no coincidence that we have seen a resurgence of white
    supremacy and violent extremism. And history is clear--voter
    suppression is rooted in white supremacy. This is true now and
    it has been true ever since Reconstruction and the
    establishment of the Department of Justice, just as this
    Committee has acknowledged at its outset.
        It should not be lost on any of us that after the 2013
    Shelby v. Holder decision by the Supreme Court we have seen a
    wave of legislation in States across the Nation which have the
    effect of making it harder for eligible citizens to register to
    vote, to stay registered to vote, or to simply cast their
    ballot. I know Senator Leahy touched on the subject of voting
    rights in his questioning earlier today, but I want to
    acknowledge that despite the success of the 2020 election,
    which has been deemed secure, new voter suppression laws are
    being introduced right now across the country under the false
    pretext of preventing voter fraud.
        Now we all saw how former President Trump's years of lies
    about voter fraud, the big lie, radicalized many of his
    supporters and led not just to physical threats against
    elections officials, elections offices, polling places, and
    even voters, but they ultimately led to the violent
    insurrection here in the Nation's capital. I know you touched
    on this in your opening remarks, but can you expand on how you
    will combat the white supremacy that threatens the safety and
    fairness of our elections, specifically?
        Judge Garland. Well, you have asked a lot of questions all
    in one, which is----
        Senator Padilla. It is complicated.
        Judge Garland. It is a complicated problem. Right. So I
    strongly believe in voting and in increasing every possible
    opportunity for voting, which, of course, Congress can do even
    on its own. The Elections Clause of the Constitution permits
    the Congress to set time, place, and manner, and to alter State
    regulations in that respect. In default, the State decides what
    Congress can act that way. So that is one thing that Congress
    could do as a matter of legislation.
        As I said, I think I would like to work with the Congress
    on improving the record with respect to Section 4, so that we
    can use a tool of Section 5. We do have the authority of
    Section 2. It does require--it changes the burden of proof and
    it requires to attack, one by one, changes in election laws.
    But it does give us the opportunity to bring cases both where
    there was intention to discriminate but also where there is an
    overall disparate impact with respect to discrimination.
        So we have a number of tools available to us, and the
    Voting Rights Section of the Civil Rights Division was
    established for the purpose of pursuing those cases, and we
    would do so.
        Senator Padilla. Thank you. I want to dig a little bit
    deeper on this, because you are absolutely right. We need, in
    my opinion, to restore the full strength of the Federal Voting
    Rights Act. There is a lot that can and should be done, not
    just in terms of elections administration with respect to
    voting rights, but protection of voters themselves. You know,
    people should be able to vote free of any harassment,
    intimidation, obstacles, et cetera. And part of what works
    against that is, again, rooted in white supremacy--this big
    lie.
        We all sat through the impeachment trial, and the results
    notwithstanding, I can't help but be moved by the evidence
    presented by the House Managers, again, how President Trump's
    big lie about voter fraud radicalized so many of his
    supporters. And I was struck by a February 19th opinion piece
    in The Washington Post by Jim Sciutto, about the parallels
    between the Capitol insurrectionists and foreign terrorist
    organizations, that I would respectfully ask be inserted into
    the record, Mr. Chairman.
        Chair Durbin. Without objection.
        [The information appears as a submission for the record.]
        Senator Padilla. In it, Jim Sciutto writes, and I will
    quote, ``domestic radicalism has deep parallels to jihadist
    terrorism: Both movements are driven by alienation from the
    political system and a resulting breakdown in social norms. For
    some groups and individuals, this breakdown leads to violence
    they see as justified to achieve political ends,'' end quote.
        Now, as we all know, the definition of terrorism is the
    unlawful use of violence and intimidation in pursuit of
    political ends. President Trump's political end was clear--
    stopping the certification of the 2020 election at the Capitol
    on January 6th. One could argue that right-wing groups, like
    the Proud Boys and the Oathkeepers, have acted like terrorists
    themselves, communicating with one another, training together,
    and preparing for the moment they are activated for their
    mission. Indeed, President Trump instructed the Proud Boys, on
    national television, to ``stand back and stand by,'' and then
    he summoned them to the Capitol on January 6th, as Congress was
    meeting to certify the election.
        What happened on January 6th was not a property crime. It
    was not vandalism, in reference to a question you were asked
    earlier. Judge Garland, as we sit here in the United States
    Capitol, surrounded by National Guard troops and barbed wire,
    how will you bring the full resources of the Justice Department
    to bear on white supremacist organizations that pose an ongoing
    threat to not just our safety and not just the safety of this
    Capitol building but to our fundamental democracy for which it
    stands?
        Judge Garland. I couldn't agree more that extremist groups,
    and particularly white supremacist groups, do pose a
    fundamental threat to our democracy, and they have posed that
    threat throughout our history. And as I recounted, that was the
    reason the Justice Department was originally established, to
    fight the first incarnation of the Ku Klux Klan.
        The best that I can do is, as I said, my first priority
    will be to have a briefing on where we are, if I am confirmed,
    with the investigations, which, from the outside, appear quite
    vigorous and nationwide, and to find out what additional
    resources we need. But that is just to focus on what happened
    in the Capitol. We also have to have a focus on what is
    happening all over the country and on where this could spread
    and where this came from, and that requires--it does require a
    lot of resources. I am very pleased to have read that the
    Director of the FBI believes that this kind of extremism is the
    most dangerous threat to the country, and that is where he is
    putting FBI resources. That is where I would put Justice
    Department resources. And we need very much to make sure that
    that is the case.
        And I do want to be careful that we also always worry about
    the foreign threat, because it is always with us, and the fact
    that nothing has happened recently doesn't mean it could not
    happen tomorrow. So from whichever direction--inside, outside,
    right, left, it doesn't matter--an attack on our institutions
    of democracy and of our ability to go forward with our daily
    lives and safety has to be stopped, and that we need all--it is
    governmentwide but also a Justice Department-wide obligation.
        Senator Padilla. Thank you, Judge.
        Thank you, Mr. Chair.
        Chair Durbin. Thanks, Senator.
        Senator Tillis would be next but he is not in Zoom range.
    Is that a possibility? And so Senator Blackburn, if she can
    connect with us, is next up.
        Senator Blackburn. Yes, sir, I am connected, Mr. Chairman.
    Thank you so much.
        And, Judge Garland, I want to say thank you to you for your
    willingness to serve and for your career in public service. And
    I will tell you, as I have talked to Tennesseans about this,
    they care a lot about law, order, timeliness at the Justice
    Department. After the Christmas Day bombing, you and I
    discussed this, in the bombing that took place in Nashville.
    They really are interested in the principles and the
    convictions of our Nation's top law enforcement officials. And
    my hope is, and I think the expectation is that you will assure
    the American people that you are going to apply the law fairly
    and equitably, because in this country, as we know, no one is
    above the law.
        Now I know you have been asked about the Durham
    investigation, and I will tell you that this is important to
    Tennesseans, in making certain that that investigation is going
    to be completed and that you are going to work to be certain
    that it is not impeded and is completed, and that you are
    committed to seeing this through to completion.
        Judge Garland. Well, thank you, Senator. I appreciate it,
    and I appreciated the opportunity we had to discuss these
    matters earlier, as well.
        As I said, with respect to the Durham investigation, I
    don't know anything about it other than what has appeared in
    the media. The investigation has been discreet, as appropriate,
    with respect to expressions of its status. I understand that
    Mr. Durham has been permitted to remain in his position, and I
    know of nothing that would give me any doubt that that was the
    correct decision.
        Senator Blackburn. And I appreciate that, and likewise, we
    had discussed the investigation into Hunter Biden's business
    dealings. And we want to make certain that you commit to
    allowing Delaware U.S. Attorney David Weiss to complete that
    investigation and bring that evidence forward.
        Judge Garland. And similarly with Mr. Durham, I don't know
    anything about that investigation, other than what I have read
    in the media. And again, that investigation has been proceeding
    discreetly and not publicly, as all investigations should. I
    understand that the Delaware U.S. Attorney was permitted to
    stay on as U.S. Attorney, and I, again, have absolutely no
    reason to doubt that that was the correct decision.
        Senator Blackburn. And let's talk a little bit about China,
    because we discussed some of that for the record. And our last
    DNI had stated that China is our greatest threat. So I would
    like to hear from you. Do you agree that the Chinese Communist
    Party is an enemy of the American people?
        Judge Garland. Well, I don't have the same familiarity with
    the intelligence information that the Director of National
    Intelligence has, so in terms of comparing, say, the threat
    from China and the threat from Russia, I am just not competent
    to make that comparison, and I have learned, in my professional
    career, not to make judgments on which I am not competent. But
    certainly, from what the Director said, there is no doubt that
    China is a threat with respect to hacking of our computers,
    hacking of our infrastructure, theft of our intellectual
    property. All of these are very difficult problems that we have
    to defend against.
        Senator Blackburn. Well, we do, and I know that Lindsey
    Graham asked you about Section 230 and some of the issues that
    are there. We all are very concerned about the issues that
    surround China, whether it is the Chinese Communist Party and
    the way they threaten our democracy and our economic leadership
    around the globe. And we are also concerned about the Chinese
    military links into our American universities through things
    like the Confucius Institutes. For instance, recently there was
    a situation at Harvard with a cancer researcher, and he was
    caught trying to smuggle 21 vials of biological material out of
    the U.S. and get it to China.
        And I would hope what you agree is that this threat puts
    American intellectual property and technology at risk, and I
    would hope that you would assure the American people that you
    are going to put the full force of the Department of Justice
    forward to investigate and to prosecute every one of these
    spies that are working on U.S. soil.
        Judge Garland. Well, Senator, I am not familiar with that
    circumstance so I can't comment on it specifically, but I can
    assure that the Justice Department's National Security Division
    was created, in part, for the purpose of ferreting out
    espionage by foreign agents and that that is also the role of
    the FBI and the two working together. And if foreign agents are
    caught stealing American intellectual property, American trade
    secrets, American materials, that they will be prosecuted. Yes,
    of course.
        Senator Blackburn. Thank you. We are about a year into this
    pandemic, and technology has allowed for us to do work like we,
    in the Senate, are doing with WebEx. I think we have all found
    that it gives a lot of flexibility. But as we are spending more
    time online we hear from people about holding Big Tech
    accountable. As I said, you discussed Section 230 earlier. And
    we are hearing more about antitrust lawsuits. Of course, you
    all have heard the current suit against Google, and I will hope
    that you are going to allow that lawsuit to continue.
        Judge Garland. Yes. Again, I don't want to talk about a
    particular lawsuit, but I don't see--every matter I have to ask
    for a briefing on. But much of that lawsuit is public, and
    again, given what I have read I don't see any reason why that
    investigation, the decision to institute that investigation
    would be changed. But I only know what I have read with respect
    to the descriptions of the public filings.
        Senator Blackburn. Let me ask you one more question, and
    then I am going to have a series of questions to come to you as
    QFRs. President Biden has talked about reinstating the Obama
    administration practice of paying settlement money from winning
    lawsuits to third-party interest groups like La Raza, the
    National Community Reinvestment Coalition, and the Urban
    League. And it is just--you know, I find it really interesting
    that they would choose to have that money go to these outside
    groups instead of to victims, or to the U.S. Treasury.
        So do you plan on reinstating that policy, and how would
    you justify reinstating that policy?
        Judge Garland. I don't have any plan one way or the other.
    I know you raised that policy when we were talking before, and
    I understand your concern about it. Obviously, damages,
    recoveries should first go to help victims. I don't know very
    much at all about the policy, and it would be something I would
    have to consider, if I am confirmed. I would have to hear the
    arguments on both sides of why the policy obviously started and
    also why it was rescinded.
        Senator Blackburn. Thank you so much. I appreciate your
    time.
        Mr. Chairman, thank you.
        Chair Durbin. Thanks, Senator Blackburn.
        Senator Ossoff, welcome to the Committee. Your turn to
    question.
        Senator Ossoff. Thank you, Mr. Chairman.
        And Judge Garland, congratulations on your nomination.
    Thanks for the time that we spent by videoconference discussing
    some of these issues. Thank you also for sharing your family's
    immigrant story with the Committee.
        It mirrors my own. My great-grandparents came here fleeing
    anti-Semitism in 1911 and 1913, from Eastern Europe, and I am
    sure your ancestors could hardly have imagined that you would
    now be sitting before this Committee and in confirmation for
    this position.
        Judge, I want to ask you about equal justice. Black
    Americans continue to endure profiling, harassment, brutality,
    discrimination in policing and prosecution and sentencing and
    in incarceration. How can you use the immense power of the
    Office of the Attorney General to make real America's promise
    of equal justice for all, and can you please be specific about
    the tools that you will have at your disposal?
        Judge Garland. So this is a substantial part of why I
    wanted to be the Attorney General. I am deeply aware of the
    moment that the country is in. When Senator Durbin was reading
    the statement of Robert Kennedy, it hit me that we are in a
    similar moment to the moment he was in.
        So there are a lot of things that the Department can do.
    One of those things has to do with the problem of mass
    incarceration, the over-incarceration of American citizens and
    of its disproportionate effect on Black Americans and
    communities of color and other minorities. There are different
    ways in which we can--and that is disproportioned in the sense
    of both the population but also given the data we have on the
    fact that crimes are not committed--these crimes are not
    committed in any greater number than in others, and that
    similar crimes are not charged in the same way.
        So we have to figure out ways to deal with this. One
    important way, I think, is to focus on the crimes that really
    matter, to bring our charging and our arresting on violent
    crimes and others that deeply affect our society, and not have
    such an overemphasis on marijuana possession, for example,
    which has disproportionately affected communities of color, and
    then damaged them after the original arrests, because of the
    inability to get jobs.
        We have to look at our charging policies again, and go back
    to the policy that I helped Janet Reno draft during her period,
    and that Eric Holder drafted while he was the Attorney General,
    of not feeling that we must charge every offense to the
    maximum, that we don't have to seek the highest possible
    offense with the highest possible sentence, that we should give
    discretion to our prosecutors to make the offense and the
    charge fit the crime and be proportional to the damages that it
    does to our society.
        That we should also look closely and be more sympathetic
    toward retrospective--of reductions in sentences, which the
    First Step Act has given us some opportunity, although not
    enough, to reduce sentences to a fair amount. And
    legislatively, we should look at equalizing, for example, what
    is known as the crack-powder ratio, which has had an enormously
    disproportionate impact on communities of color, but which
    evidence shows is not related to the dangerousness of the two
    drugs. And we should do, as President Biden has suggested, seek
    the elimination of mandatory minimum, so that we, once again,
    give authority to district judges, trial judges, to make
    determinations based on all of the sentencing factors judges
    normally apply, and don't take away from them the ability to do
    justice in individual cases. All of that will make a big
    difference in the things that you are talking about.
        Senator Ossoff. Thank you, Judge Garland. Let's discuss
    accountability for local agencies. The Civil Rights Division
    has the authority to launch pattern-or-practice investigations,
    targeting systemic violations of constitutional rights or
    violations of Federal statutes governing law enforcement.
    Tomorrow will be the first anniversary of the murder of Ahmaud
    Arbery in Glynn County, Georgia, who was shot to death in broad
    daylight, in the street, on camera. But local authorities chose
    to look the other way and were it not for the activism of
    Georgia's NAACP there likely would not have been any
    prosecution in that case.
        How can Congress equip DOJ's Civil Rights Division to
    launch more and more effective pattern-or-practice
    investigations, without asking you to comment on the details of
    the Arbery case? And how else can the Department of Justice use
    its authority to ensure that where local agencies violate
    constitutional rights or fail to uphold the guarantee of equal
    protection there is accountability?
        Judge Garland. Well, I appreciate you not asking me to talk
    about a pending case. What I will say is that like many, many
    Americans, I was shocked by what I saw in videos of Black
    Americans being killed over this last summer. That, I do think,
    created a moment in the national life that brought attention
    from people who had not seen what Black Americans and other
    members of communities of color had known for decades. But it
    did bring everything to the fore and created a moment in which
    we have an opportunity to make dramatic changes and really
    bring forth equal justice under the law, which is our
    commitment of the Justice Department.
        The Civil Rights Division is the place where we focus these
    operations. You are exactly right that pattern-or-practice
    investigations are the core of our ability to bring actions
    here, that these lead to all different kinds of remedies,
    sometimes consent decrees as a potential remedy. We also can
    criminally prosecute violations of constitutional rights, and
    we can also provide funding for police departments to reform
    themselves. I do believe that officers who follow the law in
    the Constitution want that accountability. They want officers
    who do not to become accountable, because if that doesn't
    happen, their law enforcement agency is tainted, they lose the
    credibility in the community, and without the community's trust
    they can't bring safety.
        So we have this number of tools. Whether we need additional
    tools in this particular area, I don't know. Obviously, the
    resources are necessary--and I am probably going to be like a
    broken record--in every one of these areas for us to do our
    job.
        Senator Ossoff. And, Judge Garland, with my time----
        Judge Garland. Oh, I am sorry.
        Senator Ossoff [continuing]. Will you commit to working
    with my office and with this Committee to determine what
    additional authorities the Department may need and what
    resources you may require in order to be able to bring more and
    more effective pattern-or-practice investigations, where
    appropriate?
        Judge Garland. Absolutely, Senator. I am sorry to have gone
    on.
        Senator Ossoff. No problem. Thank you, Judge Garland.
        Mr. Chairman, I yield back.
        Chair Durbin. Thank you, Judge, and thank you, Senator
    Ossoff.
        And so only in the Senate would we characterize a 5-minute
    round of questioning as a lightning round. That is what we are
    going to shift to at this moment. And those Senators who wish
    to ask a second question will have 5 minutes to do so, and I am
    going to kick it off, if I can.
        I want to address an issue which doesn't come up very often
    in this type of hearing but should, and that is the state of
    America's Federal prisons. We talk a lot about justice under
    the law sentencing enforcement. We know the outcome in many,
    many cases is that a person is incarcerated for sometimes a
    very lengthy period of time. How long that period of time is
    and how that person is treated in prison should be our concern
    as well. It is a reflection on our values as a nation, just as
    many other things are.
        So the first thing I would say is that I made a serious
    mistake, along with many others, including the current
    President, in supporting a bill more than 25 years ago, which
    established a standard for sentencing crack cocaine 100-to-1
    compared to powder cocaine. The net results of it was a failure
    of policy. It did not reduce addiction. It did not raise the
    price of crack cocaine. Just the opposite occurred. We ended up
    arresting thousands of Americans and sentencing them to lengthy
    sentences, primarily African Americans.
        And so, I introduced a bill several years ago, the Fair
    Sentencing Act, which was signed into law by President Obama,
    and then I worked with Senator Grassley, Senator Lee, who is
    here today, as well as Senator Booker and others to pass the
    First Step Act. The idea was to reconcile some of the injustice
    in our sentencing under that earlier law. President Trump, much
    to our surprise, signed it into law, and even spoke positively
    about it at the State of the Union.
        Unfortunately, it has not been implemented, and the
    provisions in there to prepare people for release from prison,
    as well as to reduce sentences, have not been effectively
    enforced. So point number one, I hope you will put that on your
    agenda, because I will be back in touch with you to ask.
        Second point. The United States has 5 percent of the
    population of the world and 20 percent of the COVID infections
    and deaths. It is a terrible commentary on our failure to deal
    with this public health crisis. But to make matters even worse,
    the infection rate in Federal prison populations is four times
    what it is in the surrounding community, and more than 230
    Federal prisoners have died. We need to have a sensible and
    humane response to compassionate release in this time of
    pandemic. Senator Grassley and I have introduced legislation
    along those lines, and I am going to ask you to look at that
    carefully, as well.
        And the third is the last item that I will bring up for
    your response. There was an article written several years ago
    in the New Yorker magazine, and I think I may have mentioned
    this to you, by Dr. Atul Gawande, who is a surgeon in the
    Boston metropolitan area, a prolific writer and a very
    insightful man. And he wrote an article about the impact of
    solitary confinement on the human mind, and he went further to
    talk about how people, in a perilous situation, can be reduced
    to an inhuman level just by isolation 23 hours a day, sitting
    in a cell by yourself. It just has that impact.
        And I looked into it, to see what was happening at the
    Federal level. I am happy to report to you that things are
    marginally better, but only marginally. I think that isolation
    is cruel and unusual, and has to be used in some circumstances
    for an extremely dangerous inmate, but, unfortunately, it is
    used in too many circumstances now. Many States are way ahead
    of the Federal prison system in looking at this issue.
        I only have a minute left and it is all yours to react.
        Judge Garland. Well, these are all easy because I had
    already thought about all of them, and in each case I think I
    will be looking at each one of these problems. The First Step
    Act, both with respect to our--obviously if I am confirmed--the
    First Step Act with respect to the re-entry education that is
    required so that people don't become recidivists, they are able
    to go into society, the First Step Act with respect to the
    coverage of the Act for retroactive reduction in sentences.
        I also, over the years, maybe like you I have learned more
    and more about the crack-powder distinction and how, by reading
    the Sentencing Commission reports, about how there seems to be
    little, if any, support for making that. So I now am of the
    view that there is no reason, so I am very interested in reform
    in that area.
        I have read, but I don't know a lot about the solitary
    confinement issue, but I can't imagine that--obviously it is
    required in some circumstances to protect people from other
    people, but it is not any kind of regular measure for
    incarceration.
        So all three of these areas are ones that I was already
    planning to look at, and I can assure you that I will.
        Chair Durbin. Thanks, Judge.
        I see Senator Lee is here, and I am going to recognize him
    next in the lightning round.
        Senator Lee. Thank you, Mr. Chairman.
        Judge Garland, consistent with the idea of this being our
    lightning round I am going to start with some questions that
    can be ``yes'' or ``no.'' If they require more than that you
    can ``yes'' with this or that minor caveat, but I would prefer
    a ``yes'' or ``no'' if you can provide one of these.
        Do you believe that individuals who advocate for the rights
    of unborn human beings are rendered unfit for public office, by
    virtue of having engaged in such advocacy?
        Judge Garland. No.
        Senator Lee. Do you believe that efforts to purge voter
    rolls of individuals who have either died or have left the
    State in question, or to require voter identification, are
    racially discriminatory and an assault on voting rights?
        Judge Garland. This is one I can't answer ``yes'' or ``no''
    because you are asking about motivations of individuals, some
    of whom may have discriminatory purpose and some of whom have
    no discriminatory purpose.
        Senator Lee. Okay. Okay. I think that answers my question
    there, because I guess what I am asking is does an individual,
    without knowing more than that, is there anything about those
    comments or support for those positions, that in and of
    themselves would make that person a racist or an assault on
    voting rights?
        Judge Garland. Again, there is nothing about the comment
    itself, but, you know, there is such a thing as circumstantial
    evidence, obviously, and if there is enormously disparate
    impact of things that somebody continues to propose, you know,
    it is not unreasonable to draw conclusions from that. But the
    mere fact of the statement, no.
        Senator Lee. Do you believe that Republicans in the United
    States--and by Republicans I mean as a whole--are determined
    to, quote, ``leave our communities to the mercy of people and
    institutions driven by hate, bigotry, and fear of any threat to
    the status quo,'' close quote?
        Judge Garland. I don't make generalizations about members
    of political parties. I would never do that.
        Senator Lee. I appreciate that, and would not expect
    otherwise. The reason I raise these, these are questions that
    have been drawn from comments by Vanita Gupta, who has been
    nominated to be the Associate Attorney General, has advocated
    for each of these positions.
        Judge Garland. Well, Senator, I know Vanita Gupta now quite
    well. I didn't know her before, but since the nomination I have
    gotten the chance to talk with her and speak with her. I have
    to tell you, I regard her as a person of great integrity and a
    person who is dedicated to the mission of the Department, and
    particularly equal justice under law.
        Senator Lee. I understand. I am not asking you to weigh in
    on her, on her as a person. I am just talking about the
    comments.
        Let's move on. Would an individual's past statements,
    statements in the past, as an adult, declaring that one racial
    group is superior to another, would statements like that be
    relevant to an evaluation of whether such a person should be
    put in charge of running the Department of Justice's Civil
    Rights Division?
        Judge Garland. So, Senator, I read, in the last few days,
    these allegations about Kristen Clarke, who I also have gotten
    to know, who I also trust, who I believe is a person of
    integrity, whose views about the Civil Rights Division I have
    discussed with her, and they are in line with my own. I have
    every reason to want her. She is an experienced former line
    prosecutor of hate crimes, and we need somebody like that to be
    running the----
        Senator Lee. I am asking you about the statement. I not
    asking about her as a person. I am asking you about the
    statement. In the abstract, would someone who has made that
    comment, would that comment itself be relevant to the question
    of whether that person, having made that statement, should be
    put in charge of running the Civil Rights Division?
        Judge Garland. All I can tell you is I have had many
    conversations with her about her views about the Civil Rights
    Division, about what kind of matter she would investigate----
        Senator Lee. What about anti-Semitic comments? Would those
    be relevant to someone wanting to----
        Judge Garland. You know my views about anti-Semitism.
        Senator Lee. Right.
        Judge Garland. No one needs to question those.
        Senator Lee. I am not questioning your views.
        Judge Garland. I know you are not. But I also want you to
    know I am a pretty good judge of what an anti-Semite is, and I
    do not believe that she is an anti-Semite, and I do not believe
    she is discriminatory in any sense.
        Senator Lee. Okay. Tell me this. Judge, you are a man of
    integrity, and one who honors and respects the laws. What
    assurances can you give us, as one who has been nominated to
    serve as the Attorney General of the United States, that you,
    if confirmed as Attorney General of the United States, what
    assurances can you give Americans who are Republican, who are
    pro-life, who are religious people, who are members of certain
    minority groups--you know, in short, half or more than half of
    the country--telling them that the U.S. Department of Justice,
    if you are confirmed, will protect them, if Department of
    Justice leaders have condoned radical positions, like those
    that I have described?
        Judge Garland. Look, I will say again. I don't believe that
    either Vanita or Kristen condone those positions, and I have
    complete faith in them. But we are a leadership team, along
    with Lisa Monaco, that will run the Department. And in the end,
    the final decision is mine. The buck stops with me, as Harry
    Truman said, and I will assure the people that you are talking
    about I am a strong believer in religious liberty and there
    will not be any discrimination under my watch.
        Senator Lee. Thank you.
        Chair Durbin. I might remind the Committee that the
    statements that are being alleged can all be asked of the
    actual witness. The Committee is going to have a hearing on
    these individuals, and it would only be fair to take the
    question to them, as opposed to asking for a reaction from
    someone who did not make that statement.
        Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Mr. Chairman, and I
    appreciated, Judge, your full-throated defense, not only of
    religious liberty, which I know is important to Senator Lee,
    but also of your team and the people that you want to work with
    going forward. And while the Chairman is correct, we can ask
    questions of those nominees, I think it is important to hear
    from you, with their hearings coming up, of your beliefs about
    how they can do the job. So I appreciate that. I know both of
    them and have a lot of respect for them.
        Judge Garland. Thank you, Senator. They have skills that I
    do not have. They have experiences that I do not have.
    Likewise, Lisa Monaco has experiences in the intelligence world
    that I do not have. No human being can have all the skills
    necessary to run the Justice Department, and I need this
    leadership team if I am going to be successful, if you confirm
    me.
        Senator Klobuchar. Very good. Well, thank you very much.
    One thing that we didn't touch on when I asked my first round
    of questions was the Violence Against Women Act, and I am going
    to be working with Senator Feinstein and others on this
    Committee to finally get that done. I don't know if you have
    followed this but we have had a delay in getting that
    reauthorized. It has tended to be a bipartisan bill in the
    past, and I have several provisions in the bill, including one
    to fix a loophole that exists involving--it is called the
    Boyfriend Loophole, but it is not as positive as that sounds,
    about getting guns after people have committed serious crimes.
        But the second piece is a bill called the Abby Honold Act,
    which is about a rape victim in Minnesota who worked with us,
    and Senator Cornyn is my co-sponsor of the bill, to be able to
    do a better job with law enforcement to investigate sexual
    assault crimes.
        But just in general do you want to talk about your views on
    the Violence Against Women Act and the Justice Department's
    role in training and the like across the country?
        Judge Garland. Yes. So as I know you know, the Violence
    Against Women Act was pressed by Senator Joe Biden many years
    ago, and he has a deep commitment to its continued
    reauthorization, as do I. I was in the Justice Department when
    we set up the first Office on Violence Against Women for the
    purpose of coordinating departmental programs in this area. I
    know this requires resources. Both of the examples that you
    give, again, I don't know the specifics but from the
    description I can hardly imagine a serious disagreement. We
    have to provide the resources necessary to help rape victims,
    obviously, and I don't see any reason why, you know, somebody
    who commits a violent crime against a person but isn't married
    or have an intimate relationship should be treated any
    differently than one who does. So I think I'm all in on the
    Violence Against Women, reupping the statute, authorization, I
    guess.
        Senator Klobuchar. Thank you. Another thing that I have
    been very focused on, partly because my dad struggled with
    alcoholism most of his life, and got through that thanks to
    treatment and recovery, is to give that same kind of
    opportunity to people in the criminal justice system. And drug
    courts are a big presence in Minnesota, as is treatment. We are
    the home of Hazelden Betty Ford, as well as many other fine
    treatment centers. And we worked really hard here. I have led
    some of the efforts on diversion with Federal courts, with drug
    court, and, of course, there is much use of them on State
    courts. Could you talk about your views on that?
        Judge Garland. Yes. No, I think courts and diversion are an
    excellent idea for people who have addiction and need to be
    treated. I think now that the opioid crisis has struck large
    parts of America, many Americans now understand that sometimes
    it is just not a question of willpower to turn this stuff down,
    that these kinds of drugs take control of your lives and you
    just can't do anything about it. And treating people in those
    circumstances in the criminal justice system is an abuse of
    them, but also it is a terrible misallocation of resources.
        So the drug courts that are able to get people into
    addiction programs are a godsend, and I am in favor of them.
        Senator Klobuchar. And thank you for also mentioning
    opioids, which has been such a scourge. We lost Prince, in
    Minnesota, because of opioids, but we lost a lot of other
    people, that people may not know their names, and a lot of kids
    to opioids. And, actually, Senator Whitehouse and I, along with
    Senator Portman, Senator Graham has been involved in this, and
    many others, including Senator Grassley, have been leading the
    way for a while before people were even identifying this as an
    issue. And a commitment to the treatment side of it, which you
    have already made just now, but also to the prosecution of
    synthetic production and distribution, synthetic opioids,
    continues to this day. Could you comment briefly? I think maybe
    Senator Graham asked you about this, but if you could comment.
        Judge Garland. Yes, he did, and, of course, I think that is
    right. The people who are putting the poison into the
    communities are the ones we should be focusing on. And, you
    know, I think that is what the DEA is well known for doing, and
    I would like to put as much effort into this as we possibly
    can.
        Senator Klobuchar. Okay. I see the Chairman is looking at
    me in his very polite, Midwestern way, to tell me that my time
    has expired. So thank you.
        Judge Garland. I am familiar with the polite, Midwestern
    way.
        Chair Durbin. Senator Kennedy, your diligence has been
    rewarded. You have 5 minutes.
        Senator Kennedy. Thank you, Mr. Chairman.
        Judge, I am really curious about your thinking on this, and
    I don't want my questions to be interpreted as suggestive or
    inconsistent with your thinking. But you and I are about the
    same age, I think.
        Judge Garland. I think so. That is right, Senator.
        Senator Kennedy. What is--when you refer to systemic
    racism, what is that?
        Judge Garland. I think it is, to me, that there is
    discrimination and widespread disparate treatment of
    communities of color and other ethnic minorities in this
    country. They have a disproportionally lower employment, a
    disproportionally lower homeownership rates, disproportionally
    lower ability to accumulate wealth, a disproportionally----
        Senator Kennedy. Can I stop you, because this 5 minutes
    goes so fast.
        Judge Garland. I am sorry.
        Senator Kennedy. So you are basically saying there is a
    disparate impact.
        Judge Garland. There is disparate impact, which, in some
    cases, is a consequence of historical patterns, sometimes is
    the consequence of----
        Senator Kennedy. Okay. Let me ask you this----
        Judge Garland [continuing]. Unconscious bias, and sometimes
    conscious, as well.
        Senator Kennedy [continuing]. When you were at the
    Department of Justice----
        Judge Garland. Yes.
        Senator Kennedy [continuing]. Was the Department of Justice
    then systemically racist?
        Judge Garland. I think we look for a pattern or practice in
    each institution. When you talk about a specific institution,
    you look for its pattern and practices.
        Senator Kennedy. But how do you know what you know? In
    other words, you say an institution is systemically racist.
        Judge Garland. I didn't say any particular institutions.
        Senator Kennedy. I know. I am not saying you did. I am
    saying if you say an institution is systemically racist, how do
    you know what you know? Do you measure it by disparate impact,
    controlling for other factors?
        Judge Garland. Well, the various----
        Senator Kennedy. Or do you just look at the numbers and say
    the system must be racist?
        Judge Garland. Now you have asked me a slightly different
    question, which I think I have a slightly different answer for.
        Senator Kennedy. Okay.
        Judge Garland. So the authority the Justice Department has
    to investigate institutions is to look for patterns or
    practices of unconstitutional conduct. And if we find a pattern
    or a practice of unconstitutional conduct, I would describe
    that as institutional racism within that institution. It may
    not be the perfect definition, but that is what I would think.
        Senator Kennedy. So it is just a product of the numbers.
        Judge Garland. Well, if there is a pattern and a practice,
    it is not just a question of individual numbers. What we are
    looking for here, under those investigations, are patterns. Why
    is it that a series of similar events are occurring like that?
    Looking into any individual's heart is not something we can do.
        Senator Kennedy. Who bears the burden of proving that--the
    institution or the----
        Judge Garland. No. No, no. Like as in all matters of law,
    the burden is on the investigator to prove, first by
    investigation, then before a court.
        Senator Kennedy. Is there any other way to measure
    institutional racism other than the numbers, the disparate
    impact?
        Judge Garland. Well, yes. You can look at large numbers of
    individual cases in which discriminatory conduct is actually
    found, intentional discriminatory conduct. Then it is not just
    a question of numbers. But, you know, if an institution has a
    very large number of incidents of unconstitutional conduct, the
    entity is responsible in the same way a corporation is
    responsible for the behavior of its individuals, the same way--
    --
        Senator Kennedy. What is the difference, though, between
    people who are racist and an institution that is racist?
        Judge Garland. Now we do have a cosmic question, but I
    think institutions are made up of----
        Senator Kennedy. Yes, but this is important.
        Judge Garland. I know. I am fully with you. I totally agree
    with that. Corporations are nothing other than the collection
    of their individuals, and the same is true for a public entity,
    which is, in a certain way, a corporation.
        Senator Kennedy. I have got to get one more in. I am sorry.
    I have got 24 seconds.
        Judge Garland. I am sorry. You asked a very hard question,
    and I am----
        Senator Kennedy. We can talk about this later, but I want
    to you ask you about this concept of implicit bias.
        Judge Garland. Yes.
        Senator Kennedy. Does that mean I am racist? No matter what
    I do or what I think, I am a racist but I don't know I am a
    racist?
        Judge Garland. Okay. The label ``racist'' is not one that I
    would apply like that. Implicit bias just means that every
    human being has biases. That is part of what it means to be a
    human being. And the point of examining our implicit biases is
    to bring our conscious mind up to our unconscious mind, and to
    know when we are behaving in a stereotyped way. Everybody has
    stereotypes. It is not possible to go through life without
    working through stereotypes. And implicit biases are the ones
    that we don't recognize in our behavior. That doesn't make you
    a racist, no.
        Senator Kennedy. Who judges that? Doesn't the person
    judging me have his own implicit bias? How do I know his
    implicit bias isn't worse than my implicit bias?
        Judge Garland. I agree, but I am not judging you, Senator,
    and I don't know who would be judging.
        Senator Kennedy. I am not asking you--but somebody, if you
    say you have implicit bias, that is a pejorative statement. I
    am not saying you are being mean. You are not a mean guy. That
    is obvious. You are a nice guy. If you say somebody has
    implicit bias, somebody has got to make that subjective
    judgment, and the person making that subjective judgment has
    implicit bias, if it is part of being a human, then how do you
    know who wins?
        Judge Garland. Fair enough. But if we say that all people
    have implicit bias it is not--you shouldn't take it as
    pejorative. This is just an element of human condition. So you
    shouldn't take that as pejorative. Implicit bias is just a
    descriptor of the way people's minds--everyone's mind works.
        Senator Kennedy. How about if you say that America has
    racists in it, just like everybody else, just like everywhere
    else. Does that make America systemically racist?
        Judge Garland. I don't want to waste your time because I
    think this is what I said before. What I mean by systemic
    racism is the patterns of discrimination and disparate
    treatment across the country. It doesn't mean that any
    particular individual is a racist.
        Senator Kennedy. Judge, I am in big trouble. I have gone
    way over.
        Chair Durbin. I am developing a bias. Thank you for the
    exchange.
        Judge Garland. It is a pleasure talking with you, Senator.
        Senator Kennedy. Same here, Judge. You will be a good
    Attorney General.
        Chair Durbin. All right. So I would like to let the
    Committee know that Senator Hirono will be the next up, and
    then we are going to take a break and return to 5-minute
    rounds. Senator Hirono, are you tuned in?
        Senator Hirono. Yes, I am. Thank you, Mr. Chairman.
        I would like to ask what I think is a very straightforward
    question. Over the past couple of years the Justice Department
    has initiated a number of efforts related to missing and
    murdered indigenous people and women, including a U.S. Attorney
    that had pilot projects in Alaska and Oklahoma to implement
    tailored Tribal community response plans.
        To what extent do you plan to continue to focus on these
    and other regional engagement efforts that could help address
    the missing and murdered indigenous people crisis?
        Judge Garland. Well, I certainly do intend to continue
    those. Again, the last time I was in the Justice Department the
    Office of Tribal Justice was established. I believe, from
    looking at the org chart, that it is still there. This is an
    important aspect. We have a responsibility to indigenous
    peoples, both statutory and otherwise, to protect.
        And, you know, many of our problems in this country are
    regional, and we must focus our resources on problems that are
    regional. Not every problem is a national one, and our regional
    problems have to be addressed directly with respect to the
    problems caused in those regions. And this is----
        Senator Hirono. Thank you, Judge. Because I think this is
    possibly under-reported and definitely we don't pay enough
    attention to what is happening to murdered and missing
    indigenous women. So I think we need to put a lot more emphasis
    on this.
        The past 4 years have seen a reawakening of right-wing
    extremism. Last year, FBI Director Wray testified that the
    greatest domestic threat, terrorist threat in the United States
    is white extremist groups. And, of course, last month we had
    the insurrection at the U.S. Capitol, led by white supremacists
    and right-wing extremists.
        Late last month, The New York Times reported that President
    Trump, with the help of his Attorney General Barr, diverted law
    enforcement resources from combatting the serious threat posed
    by right-wing extremist groups. Will you re-prioritize Justice
    Department resources to address white supremacists and other
    right-wing extremists?
        Judge Garland. Yes, Senator. If anything was necessary to
    refocus our attention on white supremacists, that was the
    attack on the Capitol, and I expect to put all departmental
    resources necessary to combat this problem into this area, to
    make sure both our agents and our prosecutors have the numbers
    and the resources to accomplish that mission.
        Senator Hirono. Thank you. My next question has to do with
    immigration courts. We discussed immigration in the courts when
    we were able to meet a few weeks ago, and it is worth
    highlighting that under the Trump administration the backlog of
    cases pending in the immigration courts has exploded to almost
    1.3 million cases. That is an amazing number. In some
    jurisdictions, the wait to hear a case is 4 years, and there
    are cases that have been pending for more than 5 years. This
    not only affects families trying to reunite but students trying
    to study or train in the U.S., victims of crime who are working
    with law enforcement, and members of our military trying to
    adjust status.
        A 1.3 million backlog. How will you address this backlog
    and increase the efficiency of the immigration courts?
        Judge Garland. This is an extraordinarily serious problem.
    Looking from my pampered perch as an appellate judge who has a
    limited number of cases and weeks and weeks to study those and
    then weeks and weeks to write those, I can't imagine how judges
    can operate under the conditions that you describe and that I
    have heard, even from other judges, exist.
        When I get into the Department, if I am confirmed, I will
    certainly look into what can be done about this. I suppose this
    must mean an increase in the number of resources and judges. It
    must mean some ability to give to the judges, to prioritize
    their cases. Even in our own appellate courts we have developed
    ways in which we handle some cases more swiftly and some cases
    take longer. Some cases are summarily resolved. Some require
    full opinions. Some way of evaluating this is required, but I
    can't give you any specific idea with respect to court
    administration, which I know something about but not an
    enormous amount, until I have a chance to get into the
    Department, if confirmed, and understand what the cause of this
    huge backlog in number of cases is.
        Senator Hirono. There is an executive officer immigration
    review that oversees this, but I think the really important
    thing is an acknowledgement that this kind of serious backlog
    has got to be addressed, because lives are at stake here.
        Thank you, Mr. Chairman.
        Chair Durbin. Thank you, Senator Hirono. We are going to
    break now and come back at 5 minutes after 3.
        [Whereupon the hearing was recessed and reconvened.]
        Chair Durbin. The Committee resumes and I am going to turn
    to the Ranking Member, Senator Grassley: 5 minutes.
        Senator Grassley. Thank you.
        Judge Garland, when I talked to you on the phone, I said I
    was going to give you a binder--I am not going to ask you to
    come up and get it and I am not going to take it down to you,
    but I will have my staff give it to you--of letters going back
    to the last 2 years of the Trump administration that have not
    been answered by the Department, and also maybe just a very few
    letters of the recent administration.
        So I hope that you will do what you can to get those
    answers. So 6 months from now, I do not blame you. It is the
    fact that the Trump people did not answer it.
        Judge Garland. I would like to keep the blame on the--my
    predecessor, yes.
        Senator Grassley. Thank you.
        And then I am going to say something about your answering
    questions for us, and this goes back. Now that I am Ranking
    Member, I want to give you a quote that I said to Senator
    Sessions when he was sitting where you are.
        And if Senator Feinstein contacts you, do not use this
    excuse, as so many people use, that if you are not a Chairman
    of a Committee you do not have to answer the questions. I want
    her questions answered just like you would answer mine.
        So I hope that whether I am Ranking Member or Chairman of
    the Committee you will help me get answers to the questions,
    and I hope Senator Durbin will do the same thing.
        Judge Garland. I will not use any excuse to not answer your
    questions, Senator.
        Senator Grassley. Thank you.
        And then the other thing is just--I do not want to dwell on
    Durham, but several people have asked you and you have given
    the same answer, and I understand why you give that answer.
        But would it be impossible for you to have some sort of a
    briefing on Durham between now and the time you get our written
    answers back so you could give us a more definitive answer?
        Judge Garland. So I do not think it is appropriate. I mean,
    I assume, among other things, that the Durham investigation----
        Senator Grassley. I will accept your answer.
        Judge Garland. Okay.
        Senator Grassley. You do not need to go any further.
        Judge Garland. Yes.
        Senator Grassley. Okay. Then let us go to a subject of
    domestic terrorism, and that--and, obviously, in a democracy we
    need to be able to disagree with each other without violence.
        Political extremism, the willingness to use violence to
    advocate one's political views on either side, is a threat to
    our democracy. The Capitol attack shows us that very directly.
        I think you have answered this question and so just a very
    short answer. I think you have assured all of us that the
    Justice Department has all the necessary resources to
    investigate and prosecute all cases connected to the attack on
    the United States Capitol.
        Judge Garland. I cannot yet say we have all the resources.
    What I said was I would--I would look into the question of
    whether we--I just do not know.
        Senator Grassley. Okay.
        Judge Garland. But we, certainly, have--we, certainly, have
    authorities to look into it. Whether we have the money and the
    person power, I just do not know yet.
        Senator Grassley. Okay. Then, likewise, in the previous
    year, there have been numerous attacks not only on other
    institutions of the Government, like the White House and the
    Federal courthouse in Portland, but on hundreds, if not
    thousands of police officers who were injured as well as on
    fellow citizens and their businesses, particularly small
    businesses.
        The Justice Department opened over 300 domestic terrorism
    cases due to that violence and started an anti-Government
    extremism task force.
        So I hope you could commit absolutely, as you did for the
    Capitol rioters that you will see those investigations of the
    2020 riots and continuing Antifa riots in the Pacific Northwest
    through to the very end.
        Judge Garland. The Justice Department--I think Director
    Wray said it exactly right, which is we investigate violence.
    We do not care about ideology.
        Senator Grassley. Okay.
        Judge Garland. If there are investigations going on like
    those then, of course, they are going to continue.
        Senator Grassley. Okay. And then taking off a little bit
    what you referred to what the FBI said, former Attorney General
    Barr noted that the FBI, while it had robust programs for white
    supremacism and militia extremism, lacked a similar
    infrastructure for anarchist extremism cases.
        Former Acting Department of Homeland Security Secretary
    Wolf stated that this may have contributed to law enforcement
    being blindsided by the civil unrest that began in 2020.
        So I hope that I can get you to say that you would be
    willing to review your anarchist extremism program for
    weaknesses and fixing those weaknesses, based upon what Barr
    said that the FBI said that they had better programs to go
    after white supremacy than they did other anarchist extremism.
        Judge Garland. You know, I think we need to go after
    violence from whatever direction--left, right, up, down. It
    does not make any difference. We need to go after--go after
    that.
        I think what Director Wray had said was the--what he was
    most concerned about was the rise of white supremacist
    extremism as an element of domestic terrorism. But it does not
    matter what direction it comes from. It does not matter what
    the ideology is. We have to investigate it.
        Senator Grassley. I guess my time is up, huh? I am going to
    have a lot of questions. I am going to have a lot of questions
    for answer in writing.
        Judge Garland. Fair enough.
        Chair Durbin. So I want to try to give an indication of the
    sequence: Dick Blumenthal is going to be next, and then on the
    Republican side I think it is going to be John Cornyn. Then it
    will either be Senator Ossoff or Senator Booker. They can arm
    wrestle till I have to make that decision.
        And then Senator Cotton, I believe, you were the next
    arrival. This has become kind of a little difficult to predict
    a sequence. I want to make sure you see it coming.
        Senator Booker. I would never want a rookie Senator to go
    between Cotton and Cornyn so I will leave it there.
        [Laughter.]
        Chair Durbin. Senator Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman.
        I want to pursue a couple of the questions that I was
    asking when we ran out of time, just to say that on the issue
    of climate change, President Biden, as a candidate, committed
    to hold accountable the oil and gas industry for any lies or
    fraud they committed in denying the effects of climate change,
    and I hope you will take that into consideration in determining
    what the Department of Justice will do in those kinds of cases
    pursuing any kind of pollution or climate change or lies in
    connection with the oil and gas industry.
        And just to kind of ask a threshold question, do you have
    any doubt that human beings are a cause of climate change?
        Judge Garland. No. No doubt at all.
        Senator Blumenthal. Thank you. You may----
        Judge Garland. That was not a trick question, I guess.
        Senator Blumenthal. It was not a trick question. I ask it
    because the last major nominee before this Committee, back in
    September--it was a Supreme Court nomination--seemed to have
    some trouble with that question. But I am glad you do not.
        Let me move to this--the issue of racial discrimination
    which has been pursued, and I really welcome your very sincere
    and passionate commitment to ending racism and racial
    injustice.
        We are in the midst of a racial justice movement right now.
    One of the areas that most concerns me is holding accountable
    public officials when they violate individual rights and
    liberties.
        As you know, Section 242 makes it a Federal crime to
    willfully deprive a person of their constitutional rights while
    acting under color of law. But prosecutors have to show that
    that public official had a specific intent to deprive
    constitutional rights, which as you also know, is a pretty high
    bar.
        I believe and I have advocated that we, in effect, lower
    the state of mind requirement in Section 242 from willfully to
    knowingly or with reckless disregard because this stringent
    mens rea requirement makes Section 242 prosecutions rare or
    impossible.
        And so I hope you agree that we need to adopt measures that
    will enable criminal accountability where all the elements of
    the crime are committed and the mens rea intent requirement
    can, in effect, fit the crime.
        Judge Garland. Well, what I can agree is that I will
    consult with the career lawyers in the Civil Rights Division,
    who are the ones who are--would be bringing these cases and who
    have brought them in the past.
        I, honestly, just do not know. I know everyone says that
    they are very difficult to make. On the other hand, in the
    Clinton administration, we did successfully make quite a number
    of those cases.
        So I would like to know, from talking to them, what kinds
    of changes might be necessary in the statute and what the
    consequences of changing the mens rea requirement would be.
        Senator Blumenthal. Thank you.
        I would also like to ask you about Section 230. I proposed
    various measures, one of them actually adopted in law and
    signed by the President, that imposes accountability on the Big
    Tech platforms for certain kinds of really horrific material,
    human trafficking under SESTA, and Senator Graham and I have
    led an effort--it is called the EARN IT Act--to hold
    accountable the tech companies for spreading child sexual abuse
    material.
        I think reform of Section 230 is long overdue. I led these
    kinds of targeted and, indeed, bipartisan efforts to revise
    Section 230 to hold Big Tech accountable and I hope that you
    will consider joining with the Congress in those kinds of
    targeted deliberate efforts to reform Section 230, which no
    longer fits the world that currently it applies to.
        Judge Garland. So I do not know that much about 230 except
    for the case I mentioned that I had worked on myself, which was
    a pretty direct application of the provision. I know that a
    number of Members, including you, spoke to me about this in our
    meetings, and I know people have different views about how it
    should be altered.
        I really would have to study that. But I am very eager to
    study that. There is no doubt the internet has changed from
    when 230 was originally adopted.
        So I would be eager and interested in studying it and
    speaking with the Members about it.
        Senator Blumenthal. Great. Thank you very much.
        Chair Durbin. Thanks, Senator Blumenthal.
        Senator Cornyn.
        Senator Cornyn. Judge, are you familiar with Title 42,
    which is a public health measure which restricts traffic across
    the international border as a public health measure to mitigate
    the spread of COVID-19? Are you familiar with that?
        Judge Garland. I do not know the statute specifically. You
    know, I know that there must be provisions that do that. But I
    do not know the statute, no.
        Senator Cornyn. Well, one of the things I hear from the
    Border Patrol and Customs and Border Protection is they are
    fearful that when the current Title 42 restrictions on cross-
    border traffic are lifted, there will be no plan in its place
    and, certainly, no transition back to normal cross-border
    trade, traffic, and visit.
        And this is a huge issue that I have raised with Director
    Mayorkas and others as well and I just want to make sure that
    is on your radar screen.
        But I also want to take up what Senator Hirono was talking
    about, the 1.2, 1.3 million asylum cases that are backlogged.
    There is no way that the United States Government is ever going
    to clear that backlog.
        But I would want to suggest to you that that is part of a
    conscious strategy by the cartels, who make a lot of money
    moving people across the border into the United States along
    with drugs, whether it is human trafficking, whether it is, as
    I say, drugs, whether it is just migrants who are trying to
    flee poor economic circumstances and dangerous conditions in
    their home country.
        But if the Biden administration is not going to enforce
    current laws with regard to immigration, and there are many
    people suggesting, including the nominee for Health and Human
    Services, that we ought to give free health care to people who
    are not legally in the country, all of this is going to be a
    huge incentive for more and more people to immigrate illegally
    into the United States. And, obviously, the Department of
    Justice has a very important role to play there.
        But I want to suggest this is not an accident. This is not
    a coincidence. This is part of a conscious strategy by the
    cartels who are enriched by each and every person, each and
    every load of drugs, that comes across the border.
        And I hope that you will commit to working with me and all
    the other Members of Congress to try to address this
    humanitarian and public health crisis in addition to the other
    aspects of immigration.
        Will you agree to do that?
        Judge Garland. Certainly, I will commit to working with
    Members of Congress to address the public health crisis. I have
    to say I was not aware that the cartels were doing this, but
    this seems like something that the Justice Department needs to
    focus on.
        Senator Cornyn. Well, at different times it is referred to
    as transnational criminal organizations, cartels. Basically, it
    is people who are engaged in criminal enterprises for money.
    That is why they do it. They care nothing about the people that
    they leave, some to die en route to the United States. All they
    care about is money. So I appreciate your willingness to work
    with me and others about that.
        China, and Russia, to a lesser extent, have perfected cyber
    espionage on the United States, for many reasons but in part to
    steal our intellectual property. The billions of dollars that
    Congress appropriates for development of the next generation
    Stealth Fighter to nuclear modernization, you name it, if the
    Russians and the Chinese can get it without making those
    investments and the years-long delay necessary to roll them
    out, they have a tremendous advantage in terms of competing
    with us economically and also militarily.
        Eighty percent of all economic espionage cases brought by
    the Department of Justice involved Communist China and there
    are at least some nexus to China in about 60 percent of all
    trade theft cases.
        I have told people that Director Wray, who is a pretty
    stoic individual, gets positively animated when he begins to
    talk about the role that China is playing in its rivalry with
    the United States, both from an economic standpoint, and if you
    look at the South China Sea and some of its aggressive and
    boisterous actions there with a potential for military conflict
    at some future, this is our number one challenge, I believe,
    today, as we speak here.
        Do you share my concerns about China's role as a rival in
    the world, what they are doing in terms of stealing
    intellectual property, what that means to us economically and
    from a national security perspective?
        Judge Garland. Senator, I do not have any inside
    information with respect to what the intelligence agencies
    know. But I have read quite a lot about this and I am--it seems
    quite clear to me that the Chinese are involved in hacking, of
    stealing our intellectual property.
        We are in an age where individual espionage prosecutions do
    not quite cut it, given the internet and how so much can be
    stolen in just a single hack.
        So this has to be an all of Government response to this
    problem. There has to be a forward look as to what is happening
    to us. There has to be a defensive look.
        I know that that is the purpose of Cyber Command. That is,
    certainly, something that the DNI is very concerned about, and
    then, of course, the FBI with respect to enforcement.
        But this is a dangerous problem for all the reasons you
    said and it requires a whole of Government response.
        Senator Cornyn. Thank you.
        Chair Durbin. Thanks, Senator Cornyn.
        Based on who is present and apparently interested, it will
    be Senator Booker, Senator Cotton, Senator Ossoff, Senator
    Hawley. Those are the ones I see.
        So, Senator Booker.
        Senator Booker. Thank you very much, Mr. Chairman, and
    thanks for the grace of Senator Ossoff for allowing me to go
    before him.
        I would love to just jump in real quick, if I may, and a
    lot has been talked about your incredible work with the
    Oklahoma City bombing, but I am also aware that you have a long
    record of working on domestic terrorism in pretty significant
    ways.
        In the mid 1990s, in response to a wave of bombings and
    arson attacks against Black churches in the South and other
    houses of worship, the Clinton administration formed a national
    task force where you and your leadership, along with others,
    helped to make this Justice Department priority, resulting in
    several hundred investigations and arrests, and I just really
    appreciate the totality of your record on fighting domestic
    terrorism.
        I do just, really quickly, just wonder, just in terms of
    proportionality, since that time till now, we have seen just
    this rise of right-wing terrorist attacks in our country.
        In fact, since 9/11, the majority of domestic terrorist
    attacks have been right-wing extremist groups. The majority of
    those have been white supremacist groups.
        And I am just hoping, and again, you are not in the
    position, God willing you will be, but just the proportionality
    of the resources we are directing toward trying to stop the
    scourge of domestic terrorism, is this something that you will
    look at in terms of the degree of the resources of the agency?
        Judge Garland. Yes. As I say, I think the first thing I
    should do as part of my briefings on Capitol bombing or
    briefings with Director Wray as to where he sees the biggest
    threat and whether the resources of the Bureau and of the
    Department are allocated toward the biggest threat and the most
    dangerous and direct threat.
        We do have to be careful across the board. We can never,
    you know, let somebody sneak around the end because we are not
    focusing but we also have to allocate our resources toward the
    biggest threat.
        Senator Booker. Great. And I would like to shift back to
    marijuana. In an earlier conversation we were talking about the
    systemic racism there that has--I have watched tons of friends
    in elite colleges not worrying at all about being arrested for
    marijuana while the inner city Black and Brown community I live
    in, too--it is a much different reality, much different set of
    laws applying to them.
        But I actually want to get to the good news, I think, in
    the United States of America is that red States, blue States,
    America in general, if you want to call those States that way--
    American States are moving toward more and more legalization,
    medical marijuana, loosening up of laws, decriminalization. It
    is an amazing thing.
        But the Federal Government is out of step with that right--
    as of now, and I hope to work in a bipartisan way to see if we
    can advance the Federal Government maybe to de-list the
    legislation, think of some restorative justice elements. Just
    today, New Jersey signed its first major effort at legalization
    and restorative justice.
        But one thing that was done by the Obama administration was
    putting forward a--the Cole Memorandum, as I am sure you are
    aware.
        But Attorney General Jeff Sessions rescinded the Cole
    Memorandum, which gave guidance to U.S. Attorneys that the
    Federal marijuana prohibition should not be enforced in States
    that have legalized marijuana in some form.
        And so do you think that the guidance in the Cole
    Memorandum to deprioritize marijuana enforcement should be
    reinstated? That is, should the Justice Department respect
    States' decisions on marijuana policy?
        Judge Garland. So I do not have every element of the Cole
    Memorandum in mind, but I do remember it and I have read it.
    This is a question of the prioritization of our resources and
    prosecutorial discretion.
        It does not seem to me a useful use of limited resources
    that we have to be pursuing prosecutions in States that have
    legalized and that are regulating the use of marijuana, either
    medically or otherwise. I do not think that is a useful use.
        I do think we need to be sure that there are no end runs
    around the State laws that criminal enterprises are doing. So
    that kind of enforcement should be continued. But I do not
    think it is a good use of our resources where States have
    already authorized it and it only confuses people, obviously,
    within the State.
        Senator Booker. So real quickly, the violence against Black
    trans Americans is unconscionable with many murders every
    single year, the bullying and violence against a lot of trans
    children. About a third of LGBTQ American children report
    missing school because of fear, fear of violence, and
    intimidation.
        Is this something that you will make a priority, to protect
    all children from violence and discrimination, particularly in
    this case, transgender children and--transgender children and
    would you also commit to taking seriously the targeting of
    transgender adults, specifically with the trend we are seeing
    with the alarming numbers of murders of Black transgender men?
        Judge Garland. These are hate crimes, and it is the job of
    the Justice Department to stop this, to fine them, to enforce
    and to penalize, and that is what the section of the special
    litigation unit in the Civil Rights Division is intended to do.
        There is the Shepard-Byrd Act, which was particularly aimed
    at this, and I think it is--I am not sure whether it needs
    broadening. But it is clear to me that this kind of hateful
    activity has to stop and, yes, we need to put resources into
    it.
        Senator Booker. Thank you for your time. I look forward to
    voting for your confirmation and I am going to stop here
    because I do not want to make Tom Cotton mad at me.
        [Laughter.]
        Chair Durbin. So the remaining Senators for 5 minutes
    each--Senators Cotton, Ossoff, Hawley, and now Senator
    Whitehouse is going to make a return.
        Senator Cotton.
        Senator Cotton. Judge, I want to return where you stopped
    this morning, the question of racial equality, specifically,
    race discrimination in higher education.
        Last year, the Department of Justice sued Yale University
    for discriminating against students on the basis of race based
    on Yale's own data.
        If you look at one of its top academic categories, when you
    control for academic achievement, the admission rates by racial
    category were as follows: Asian Americans 6 percent, white
    applicants 8 percent, Hispanics 21 percent, African Americans
    49 percent.
        Do you think that evidence suggests discrimination based on
    race in Yale's admissions process?
        Judge Garland. So again, my best recollection is that
    between my nomination and now the Department has made a
    decision about that----
        Senator Cotton. The case was voluntarily dismissed on
    February 3rd. It is no longer a pending case.
        Judge Garland. So my recollection is correct. So these kind
    of cases, obviously, depend on application of the Supreme
    Court's opinion in the Grutter case and the Fisher case, and
    they require a lot of factual development and examination of
    the facts.
        These cases do not only depend on the disparate statistics,
    but on all the factors the Supreme Court instructed the lower
    courts and the Government as to what kinds of affirmative
    action in higher education are permissible and which ones are
    not.
        So I cannot--I, honestly, cannot draw any conclusions
    without knowing the facts of the case.
        Senator Cotton. Some of that Supreme Court case law about
    racial discrimination in higher education says that race can
    only be used as a plus factor. It cannot be decisive in
    practice. It cannot be a defining feature. It cannot be the
    predominant factor.
        When Asian-American kids are eight times less likely to be
    admitted in the same band of academic achievement, you do not
    think that at least suggests a facial case of racial
    discrimination of Asian Americans?
        Judge Garland. Well, I think that is the question that you
    look at for the underlying facts to know. You are, I think--I
    do not remember exactly the words of the Supreme Court
    opinions, but they seem pretty much exactly, you know, what you
    just said.
        You cannot have a rigid quota. You cannot have a fixed--
    this was the consequence of the Gratz case, which was a
    companion case to Grutter. Grutter was the University of
    Michigan law school. Gratz was University of Michigan as a
    university.
        With respect to Grutter, the Court said it was a holistic
    approach and was permissible. With respect to Gratz, it said it
    was a fixed ratio or a fixed number and not permissible.
        But those are things you find out by discovery in the case
    and examination of what the actual practices of the university
    were, and I have no idea what they were.
        Senator Cotton. Judge, did anyone in the Biden
    administration consult with you about the decision to drop the
    lawsuit against Yale University?
        Judge Garland. No. No, I have assiduously kept out of
    those. It is not my--it is not appropriate for me to be
    examining anything like that, unless you confirm me.
        Senator Cotton. Will the Department of Justice, under your
    leadership, pursue cases of obvious racial discrimination in
    higher education?
        Judge Garland. Well, if you put it that way, the answer is,
    of course, yes. Obvious cases----
        Senator Cotton. I think this presents an obvious case of
    discrimination against Asian Americans. I suspect some Asian-
    American parents and their kids are a little disappointed in
    those answers, Judge.
        I want to turn to the----
        Judge Garland. I just want to say I am only giving the
    answer to what the Supreme Court said the law was. I cannot do
    any better than that.
        Senator Cotton. Eight times less likely to be admitted?
        Judge Garland. All I--my answer was you have to look at the
    facts in----
        Senator Cotton. Okay. I want to turn to another very
    important topic, which is the rising rates of violent crime in
    the country. According to FBI's crime statistics, only 45
    percent of violent crimes in this country result in an arrest.
        Would it be better or worse if 100 percent of violent
    crimes in this country resulted in arrest and prosecution
    instead of just 45 percent?
        Judge Garland. It would be better if you gave--if Congress
    gave the Department enough money to arrest every single person.
    I assume you are talking both about State crimes and Federal
    crime?
        Senator Cotton. That is according, yes, to Department of
    Justice, FBI crime statistics. So those 45 percent.
        Judge Garland. So those are--almost all or a large
    percentage you are talking about local crime. So yes, it is
    better to----
        Senator Cotton. Do you think the Department today solves
    too many crimes or prosecutes too many criminals?
        Judge Garland. The Justice Department?
        Senator Cotton. Yes.
        Judge Garland. I think it may bring charges in areas which
    are not a good allocation of its resources, but I do not think
    it has sufficient resources, and probably never will, to pursue
    every crime. That seems impossible.
        Senator Cotton. One final point, Judge. I just want to get
    it on the record. We spoke about this last week in our
    telephone call about the importance of State and local law
    enforcement to work together in a collaborative and cooperative
    fashion with the Department of Justice, both its local U.S.
    Attorneys and the law enforcement agencies that you oversee.
        I was glad to know that you agree with me those
    partnerships are vital to reduce crime and keep our communities
    safe. I just wanted to give you the chance to put that on the
    record today.
        Judge Garland. Yes, absolutely. You know, my experience in
    Oklahoma City was with close cooperation with the DA's office,
    the local police there, and with the governor and with the
    State police.
        I think these joint task forces are an exceedingly good
    idea. They are a force multiplier. So I am completely on board
    with this. Yes, sir.
        Senator Cotton. Thank you, Judge.
        Chair Durbin. Senator Ossoff.
        Senator Ossoff. Thank you, Mr. Chairman.
        Hi again, Judge Garland.
        I want to return to the question of the Department's
    authorities and mission to defend voting rights, and note that
    Sunday would have been Congressman John Lewis' 81st birthday.
    And as you know, he committed his life and, indeed, nearly lost
    his life in the struggle for voting rights.
        But as we speak, Georgia's State legislature is considering
    legislation that would make it harder for Georgians to vote,
    for example, to end Sunday early voting, which is used heavily
    by Black and working class voters, to cut the window during
    which voters can participate via absentee ballot, which would
    make it harder for seniors to vote.
        And I am not asking you to comment on these specific bills.
    But what I am hoping you can provide is an assurance that the
    Department of Justice will diligently and fully enforce
    constitutional and statutory guarantees of the rights to vote.
        Judge Garland. I give you my complete assurance. Yes,
    Senator.
        Senator Ossoff. Thank you so much. I would also like to
    discuss with you resources available for public defenders'
    offices around the country, and a visit to a municipal court in
    any major American city will reveal that a steady stream of
    low-income defendants lacking the resources to hire their own
    attorneys are often represented by overworked and under-
    resourced public defenders, which contributes to class and race
    bias in the justice system, and, in my view, is an affront to
    the constitutional guarantee of due process as well as of equal
    protection.
        So will you work with my office and this Committee to
    determine whether grant programs, which may already exist at
    the Department to support local public defenders' offices or
    which may need to be created, can be considered in legislation
    that this Committee and the Senate may consider?
        Judge Garland. I will, Senator. There is no equal justice
    in the United States unless everybody has equal access to
    justice. My own experience, our Federal Public Defender's
    office is terrific. It needs resources, the Federal Public
    Defenders across the country.
        I have tried my best when I was in an administrative
    position to provide as many resources as possible. The same for
    our lawyers who volunteer under the Criminal Justice Act. The
    difference between having an excellent lawyer and not can make
    all the difference in the world, and I think we should give all
    the resources that we can.
        And with respect to the local courts and local public
    defenders, it would have to be through grant programs, but of
    course, to the extent Congress is willing, I am strongly in
    favor.
        Senator Ossoff. Well, I appreciate that answer and I look
    forward to working with you, I hope, and the Chairman and
    Ranking Member on those grant programs.
        And, finally, I want to return to the discussion that we
    had earlier about pattern-or-practice investigations, and I
    just want to urge you that if you were confirmed and as you
    take this office, and there will be so many demands on your
    time and your attention and important missions for the
    Department to fight violent crime and to defend our national
    security, that you personally exercise leadership within the
    Department to ensure that the Civil Rights Division's mission
    is elevated and emphasized and that you come to this Committee
    to seek and secure any resources that you need to make that
    real.
        And just to illustrate why I believe that is so important,
    the South Fulton jail in my home State of Georgia has been
    known to the public for years to have appalling conditions for
    incarcerated people.
        And actually, in the last month, a Federal court ordered
    changes to practices within the jail. But it was after years of
    litigation. The U.S. Attorney's Office did file a brief in the
    case but the litigation was brought by independent nonprofit
    plaintiffs. Years it took for changes to be ordered by a
    Federal court.
        I am going to read you a quote from the plaintiff's brief
    to illustrate the conditions in this jail, and I want to warn
    the public viewing this on television that the material is
    graphic.
        Quote, ``The cells were covered in bodily fluids, rust, and
    mold. In these conditions, the inmates deteriorated, leaving
    them incoherent, screaming unintelligibly, laying catatonic,
    banging their heads against walls and repeatedly attempting
    suicide.''
        This refers to the solitary confinement of women with
    severe psychiatric disorders in the South Fulton Jail in
    Georgia, and these conditions are not unique to this facility.
        So I want to urge you and ask you one more time, please,
    respectfully, Judge Garland, your commitment to elevate this
    mission within the Department and to work to secure the human
    rights of incarcerated people and the American public with all
    of the power you will have in this position.
        Judge Garland. You have my commitment. The Civil Rights
    Division has responsibilities and some authorities in this
    area, and so is quite capable of pursuing these kinds of cases.
        I took to heart what the Chairman said with respect to the
    role that Robert Kennedy played when he was the Attorney
    General and I regard my responsibilities with respect to the
    Civil Rights Division as at the top of my major priorities
    list. So you have my commitment to do everything I can in this
    area.
        Senator Ossoff. Thank you. And just with the Chairman's
    indulgence, Judge, will you commit to reviewing any materials
    that are sent to you by Congress or by entities such as the
    NAACP or the Southern Center for Human Rights where it pertains
    to conditions of incarceration?
        Judge Garland. So that I have some time to be able to read
    everything that I need to read, if it is all right with you, I
    will commit to being sure that the head of the Civil Rights
    Division and the Associate Attorney General, Ms. Clarke and Ms.
    Gupta, who are directly responsible, do that and then brief me
    about it. I will to the extent possible read them myself. But I
    have already committed to reading a 400-page document and there
    are only so many hours in my day.
        Senator Ossoff. Understand. The Department's condition is
    what I am looking for. So thank you so much.
        Thank you, Mr. Chairman.
        Chair Durbin. Senator Hawley.
        Senator Hawley. Thank you, Mr. Chairman.
        Judge Garland, I would like to talk a little bit more about
    the law enforcement challenges at the border, which I know a
    number of other Members have brought up with you.
        Just a fundamental question. Do you believe that illegal
    entry at America's borders should remain a crime?
        Judge Garland. Well, I have not thought about that
    question. I just have not thought about that question. I think,
    you know, the President has made clear that we are a country
    of--with borders and with a concern about national security.
        I do not know of a proposal to decriminalize but still make
    it unlawful to enter. I just do not know the answer to that
    question. I have not thought about it.
        Senator Hawley. Will you continue to prosecute unlawful
    border crossings?
        Judge Garland. Well, this is, again, a question of
    allocation of resources. The Department will prevent unlawful
    crossing. I do not know--you know, I have to admit I just do
    not know exactly what the conditions are and how this is done.
        I think if--I do not know what the current program even is
    with respect to this. So I assume that the answer would be yes.
    But I do not know what the issues surrounding it are.
        Senator Hawley. Let me ask you about the guidelines on
    asylum eligibility issued as part of the Executive Office of
    Immigration Review. Your predecessors have issued quite a
    number of guidelines about asylum eligibility. Several
    Senators, Senator Hirono, I think Senator Cornyn, talked about
    the very significant backlog that we have currently in asylum
    cases.
        Will you continue to use--keep in force the current
    guidelines on asylum eligibility or do you anticipate changing
    them?
        Judge Garland. Again, given my current professional
    occupation, I have had no experience whatsoever with the
    guidelines. So I cannot give you a direct answer to that
    question.
        Asylum is part of American law, and the Justice Department
    and the State Department have an obligation to apply that law.
    I do not know what the guidelines are that you are talking
    about and I do not know even about the rescissions of
    guidelines that you are talking about.
        Senator Hawley. Will you--if confirmed, I am sure that you
    will be reviewing this and considering these questions--will
    you pledge to keep us fully posted as you do so?
        Judge Garland. Yes, if there was a change in the Government
    policy, if I am confirmed, of course, there will be a public
    change because you cannot apply those kind of guidelines
    without making them public.
        Senator Hawley. Let me turn to the subject of antitrust. I
    heard your answer to Senator Blackburn about the ongoing Google
    antitrust prosecution. I believe your answer was you did not
    anticipate any changes in that ongoing prosecution, that the
    case would go forward.
        Did I hear you correctly? Is that right?
        Judge Garland. I do not want to talk about a pending case
    because it is, after all, a pending case and that is just what
    a judge cannot talk about.
        But as with most of our investigations, I will--you know,
    when I get in, if I am confirmed, I will examine them. But I do
    not have any reason to think that I would stop that kind of
    investigation.
        Senator Hawley. Recent news--recently, news outlets,
    various news outlets, have reported that Susan Davies is being
    considered to lead the DOJ antitrust division.
        Susan Davies, of course, has defended Facebook from Federal
    antitrust laws. Facebook has been another target of antitrust
    scrutiny. Do you think it is appropriate to have someone who is
    a defender of these massive corporations leading the Antitrust
    Division?
        Judge Garland. Let me say a number of things in response to
    this.
        First of all, the Department has recusal rules, which
    prevents somebody who had a role from taking a role in a case
    like that.
        Susan Davies is a fantastic lawyer, a woman of enormous
    integrity, and I have every confidence that were she in that
    division that she would proceed as completely appropriate.
        But it turns out that the Press reports are completely
    incorrect. So----
        Senator Hawley. She is not under consideration?
        Judge Garland. No, not that I know--not that I know of, no.
        Senator Hawley. Oh, and is not going to be, to the best of
    your knowledge? I assume it would be your decision.
        Judge Garland. I do not--look, I do not think either she or
    I have aspirations for her to be in the Antitrust Division.
        So I am not exactly sure where this came from. But she is a
    woman of remarkable ability who has helped me in my previous
    role and I would be very eager to rely on her good judgment and
    her--and a woman of strong ethical judgment.
        So if she were in a position, any position anywhere in the
    Department, she would know when to recuse or not. But this
    particular issue, she is not--as far as I know, she is not
    going to be in the Antitrust Division, not because she wanted
    to be or I wanted her to be in there and because somebody said
    she could not.
        Senator Hawley. Good. Well, I think that is news, I think,
    and welcome news and I just want to register my own point of
    view here, which is I think that the--recusal or not, the
    message it would send, the Google case is perhaps the most
    significant antitrust case the Department has undertaken since
    Microsoft, easily may be more significant than that, because
    Google, frankly, is significantly more powerful than Microsoft
    was.
        The message it would send, to have a lawyer defending these
    massive companies in the Antitrust Division would be terrible.
        Judge Garland. Well, I do not know who would send this
    message or why this message was being sent. But there is no--I
    do not have any intention of this. But I am confident that had
    this been the case, this would not be a problem.
        You know, unfortunately or fortunately, a lot of the best
    antitrust lawyers in the country have some involvement one way
    or another in some part of high tech, and we cannot exclude
    every single good lawyer from being able to be in the division.
        But that is not an issue. Nothing you need to be concerned
    about.
        Senator Hawley. Thank you. Thank you, Judge.
        Thank you, Mr. Chairman
        Chair Durbin. Senator Cruz.
        Senator Cruz. Thank you, Mr. Chairman.
        Judge Garland, I want to go back to the topic of protecting
    the Department of Justice from political influence and being
    weaponized politically.
        A number of Senate Democrats at this hearing have used the
    opportunity to cast aspersions to the job Bill Barr did as
    Attorney General. I think those aspersions are false. I think
    he showed enormous courage in fighting to defend the rule of
    law.
        But Bill Barr, when explicitly asked about whether he would
    terminate Robert Mueller, at his confirmation hearing, the same
    situation you find yourself, he said he would not terminate him
    absent, quote, ``good cause.''
        Are you willing to meet the same standard of integrity that
    Bill Barr demonstrated and will you make that same commitment
    to this Committee that you will not terminate Mr. Durham absent
    good cause?
        Judge Garland. What I have said to the Committee and what
    is, is that I need to get information about this investigation,
    which I do not have here. I understand that a decision has been
    made to keep him in place, and I have absolutely no reason to
    doubt that that was the right decision and that he should be
    kept in place.
        But I cannot go any further without learning the facts of
    the investigation and what the status is.
        Senator Cruz. So, Judge Garland, with all due respect, and
    I recognize you have been a judge for 23, 24 years, judicial
    nominees sit in that chair and decline to answer just about
    every question Senators pose to them, saying, ``Well, as a
    judge, I cannot commit to how I would rule on any given case.''
        And that is appropriate. You are not nominated to be a
    judge in this position. You are nominated to an executive
    position, and you are a constitutional scholar. You understand
    fully well the difference between Attorney General versus an
    Article III judge.
        Bill Barr did not know the details of the Mueller
    investigation at the time, but he knew that Bob Mueller was
    investigating President Trump, that it was highly politically
    sensitive.
        And so to show his integrity and commitment to being
    nonpartisan, he said he would not terminate Mueller absent good
    cause. You have the opportunity to do the same thing. The
    investigation into Durham is highly political. It, potentially,
    implicates Joe Biden and Barack Obama.
        And I just want to be clear. You are refusing to give that
    same commitment. You want to keep the options open to terminate
    the investigation.
        Judge Garland. Look, I am not refusing to give that
    commitment because I am a judge. I am telling you what I think
    an Attorney General ought to do, which is to look at the facts
    before making a decision.
        I am also telling you that I will never make a decision in
    the Department based on politics or on partisanship. So
    whatever decision I were to make, it would not be based on
    that.
        And all I can ask you to do is trust me based on a record
    of my 24 years as a judge, my entire career before that as a
    prosecutor, and my life before that. That is my record of
    integrity and that is what you have before you.
        Senator Cruz. So a similar line of questions that you were
    asked concerned the Google antitrust investigation, and
    Google--Big Tech as a whole contributed over $15 million to the
    Joe Biden campaign.
        They are enormously important Democratic donors. There will
    be enormous political pressure to abandon that case against
    Google.
        Can you give this Committee assurances that you can stand
    up to that political pressure just because Democratic
    fundraisers want to be lenient on Google? That the Department
    of Justice will not give in to that pressure?
        Judge Garland. So, Senator Cruz, I am old enough to
    remember when there was a political effort to end the case in
    the antitrust case in the Justice Department against ITT, which
    gives you an idea of how old this is, that there is no ITT
    anymore, the International Telephone and Telegraph Company.
        This--if I am not wrong, this was one of the paragraphs in
    the indictment, the proposed indictment of impeachment of
    President Nixon, I think, but it was around the same time, and
    it had to do with the partisan effort to influence the Justice
    Department in that Antitrust Division.
        I grew up knowing that this is not something that is
    permissible for the Justice Department to do, and my whole life
    has been in looking at Ed Levi and the post-Watergate Attorneys
    General who stood up to that kind of stuff.
        And I can assure you that there will--I do not care what
    kind of donor talks to me about what--of anything. I do not
    expect to talk to any donors. I have no conflicts. I do not own
    any Google stock and I will do whatever is the right thing, and
    I do not own any stock, or I won't, once--if I am----
        Senator Cruz. Let me ask two very quick questions, because
    my time is expiring.
        Judge Garland. Yes.
        Senator Cruz. Number one, you voted to rehear the Heller
    case--or actually, the Parker case en banc.
        Judge Garland. I did.
        Senator Cruz. I argued the Parker case on the D.C. Circuit.
    As Attorney General, will the Department of Justice argue for
    the Supreme Court to overturn Heller v. District of Columbia?
        Judge Garland. Look, the Department, you know, makes all
    kinds of judgments like that. I cannot promise but I find it
    hard to believe that the Department could think that there was
    any possibility of overturning the Heller case.
        Senator Cruz. Okay. And then the final one, with the
    Chairman's indulgence because I am at the end of my time.
        Judge Garland. Yes.
        Senator Cruz. Nine Senators wrote a letter to Chairman
    Durbin asking this Committee to investigate Governor Andrew
    Cuomo's policies concerning COVID and sending COVID-positive
    individuals into nursing homes. A senior aide of his admitted
    to a cover-up to hide information from the Department of
    Justice.
        You have committed to a number of investigations here at
    this hearing today. Will you commit to investigating the extent
    to which the government of New York broke laws or covered up
    their policies concerning COVID-positive patients in nursing
    homes?
        Judge Garland. With all of these investigations, the
    Justice Department is open to evidence of fraud, false
    statements, violations of the law. They normally begin in the
    appropriate way in the U.S.--relevant U.S. Attorney's Office,
    and that is a way that something like this--without commenting
    on this in particular, because I do not know the facts, that is
    the way it should go.
        Senator Cruz. But in this instance the acting U.S. Attorney
    is the mother-in-law of a senior official in the Cuomo
    administration that admitted to the cover-up.
        Will you at least commit to not having the investigation
    done by a person with a conflict of interest?
        Judge Garland. Of course. I do not know any of the facts.
    But I can guarantee you that somebody with a conflict of
    interest will not be the person running an investigation of any
    kind.
        Senator Cruz. Thank you.
        Chair Durbin. Since it has appeared, reappeared, and then
    appeared again, this question about the Durham Special Counsel,
    for the record, the President of the United States and the
    White House, when they reported their policy on the future of
    U.S. Attorneys, made two exceptions, if I remember correctly.
    One was for the Delaware U.S. Attorney and the second one was
    in this situation with Durham.
        The administration has, clearly, committed publicly to
    allowing Durham to complete his investigation. I do not know
    that any additional comments are needed beyond that, though you
    have been asked many, many times that question.
        In terms of Attorney General Barr, we do remember that he
    wrote an unsolicited memo questioning the legitimacy of the
    Mueller investigation before he was under active consideration
    for the Office of the Attorney General.
        I do not know why the other side keeps returning to this.
    But I think your position is consistent with the White House
    position and is what we would expect of any Attorney General
    when it comes to making an assessment after they learn the
    facts.
        Senator Whitehouse.
        Senator Whitehouse. Thank you, Chairman, and, am I the
    final questioner? Could be.
        So I may be all that stands between you and relief from
    these proceedings, your Honor.
        [Laughter.]
        Senator Whitehouse. I would summarize our earlier
    conversation as you telling us that when we ask you questions
    or the Department or the FBI questions, we are entitled to an
    answer, and if the answer is ``no, we cannot tell you that,''
    we are entitled to an explanation as to why you think that. Is
    that correct?
        Judge Garland. Yes, that is right, Senator.
        Senator Whitehouse. Good. I touched on the problem of
    Executive privilege because the Department of Justice has a
    role as kind of an arbiter for the whole administration of
    Executive privilege determinations.
        We had documents sent in here blank, that had the phrase
    ``constitutional privilege'' stamped on them. No articulation
    of what constitutional privilege it was.
        We have had witnesses claim to assert Executive privilege,
    but the administration never backed them up by actually
    asserting the privilege. So there was never actually a test of
    the proposition.
        But our Chairman would not force an answer. So we were
    stuck. And I urge you to--maybe we should even have a hearing
    on it--think through what Executive privilege ought to look
    like, what the process for declaring it ought to look like, and
    try to get that cleared up so that in this Committee we are no
    longer being treated the way we were in the last
    administration.
        You mentioned that false statements were a way that cases
    kind of traditionally came in, went to the U.S. Attorney first,
    worked their way up. There is one sort of strange anomaly,
    which is false statements to the IRS.
        The administration before this one took the view that a
    false statement to the IRS was something that they would not
    look at unless it had been referred by the IRS. So I get the
    policy of not getting into criminal investigations of tax law
    without the IRS saying, hey, we would like you to prosecute
    this. We are the tax law experts and we really--we have some
    equities here and why they want you or do not want you to
    proceed criminally in this matter.
        I get that. When it is a plain vanilla false statement--I
    did that as U.S. Attorney, you did those cases, anybody who
    served in--as a U.S. Attorney has done those cases, I would
    urge you to reconsider a policy of deferring to the IRS before
    proceeding on a simple false statement case. Obviously, it will
    be fact specific, but I flagged that for you.
        And the last point I would like to make is that it seems to
    me, and I will ask you to agree or disagree with the statement,
    it seems to me that failing to proceed--failing to proceed
    where an investigation or a prosecution is warranted and doing
    so on political grounds is just as bad as proceeding with an
    investigation or prosecution on political grounds.
        Would you agree that that is a correct proposition?
        Judge Garland. Yes, of course. Absolutely.
        Senator Whitehouse. Last of all, we all need something to
    believe in, I think. People who worked in the Department very
    much believe in the Department of Justice. They believe in the
    merits and the norms and the values and the traditions of their
    service and of the Department. People across this country need
    to believe, and there was a lot that happened in the last
    administration to cause doubt about whether the Department of
    Justice met that standard, if they were worthy of the public's
    trust and belief.
        Let me ask you with your closing comments to respond to how
    you view the importance of the public's trust and belief in the
    Department of Justice, and your commitment to salvaging, if
    necessary, restoring as needed, and upholding those ideals.
        Judge Garland. Yes. Look, I could not agree with you more.
    It is not just that the Department has to do justice, that it
    has to appear to do justice and that the people of the United
    States have to believe that it does justice.
        Otherwise, people lose their faith in the rule of law. They
    take the law into their own hands if they become cynical about
    law enforcement, about public servants.
        I would like for the time that I am in the Justice
    Department to turn down the volume on the way in which people
    view the Department, that the Justice Department not be the
    center of partisan disagreement, that, you know, we return to
    the days when the Department does its law enforcement and
    criminal justice policy, and that this is viewed in a
    bipartisan way, which for a long time in the history of the
    Department that is the way it was.
        I know that these are divisive times. I am not naive. But I
    would like to do everything I can to have people believe that
    that is what we are doing.
        People will disagree. People on the left side, the right
    side, the Democratic side, the Republican side, will disagree
    with things that I do, and that has happened as a judge.
        The only thing I can hope is that people will understand
    that I am doing--I am doing what I do because I believe it is
    the right thing and not out of some improper motive. That is
    the best I can ask.
        And if you confirm me and if at the end of my time people
    still believe that, I will consider that a singular
    accomplishment.
        Senator Whitehouse. Godspeed to you, sir.
        Chair Durbin. Judge Garland, I am going to say a few words
    about what the Committee is going to do tomorrow in pursuit of
    your nomination, and then a few closing comments.
        Tomorrow, the second day of the hearing begins at 10 a.m.
    We will hear from a panel of outside witnesses. Reminder that
    questions for the record from the Senators on the Committee
    must be submitted by 5 p.m. on Wednesday, February 24th.
        I hope people will show good faith and common sense in the
    number of questions that they submit because you have been open
    now for two full rounds to ask whatever people have had on
    their minds.
        Let me say a few words in closing. My appreciation of your
    background is a little different than some. I know one of your
    earliest inspirations was a man named Abner Mikva, who
    proceeded to serve with distinction all three levels of
    Government in the Federal branch as well as his initial service
    in the Illinois House of Representatives.
        One of his closest friends and allies and colleagues over
    the years was a man named Paul Simon, who picked me up and
    dusted me off a few times when I lost elections and said, ``You
    will get them next time.''
        He was right. I eventually did but took a while. I knew
    Abner Mikva personally, and through his relationship with my
    mentor, Paul Simon, they represented the very best in public
    service--integrity, honesty, hard work, all of the above, time
    and again.
        We are lucky to be heirs of that legacy, and I think that
    that has inspired both of us in our different pursuits of
    public service.
        When President-elect Biden told me that you were under
    consideration for this job, I thought instantly, this is the
    right person. At this moment in history, this is the right
    person to put in as Attorney General.
        The Department of Justice needs to have its morale
    restored. It needs to have its reputation restored. It needs
    leadership that is honest and we can respect from every corner
    of this country.
        You are that person. Your testimony today is evidence of
    that. I want to thank your family in particular. I do not know
    that they have--you mentioned but it is well worth repeating.
    Lynn, thank you for being here. Rebecca and her husband,
    Alexander. That would be Becky and Xan. And Jessica--Jessie,
    thank you for being here today in support of an extraordinary
    person who is ready to serve again in his being called by the
    President to be there at a moment in history when he is needed
    the most.
        This President has put faith in you, Judge Garland. We will
    do the same. Thank you again. I look forward to your swift
    confirmation.
        And with that, the hearing stands adjourned until 10 a.m.
    tomorrow.
        [Whereupon, at 4:06 p.m., the hearing was recessed.]
        [Additional material submitted for the record for Day 1
    follows Day 2.]

                              CONTINUATION OF THE
                              CONFIRMATION HEARING
                              ON THE NOMINATION OF
                           HON. MERRICK BRIAN GARLAND
                             TO BE ATTORNEY GENERAL
                              OF THE UNITED STATES

                                  ----------

                           TUESDAY, FEBRUARY 23, 2021

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10 a.m., in Room
    216, Hart Senate Office Building, Hon. Richard J. Durbin, Chair
    of the Committee, presiding.
        Present: Senators Durbin [presiding], Whitehouse, Coons,
    Blumenthal, Booker, Grassley, Cornyn, Lee, and Tillis.

              OPENING STATEMENT OF HON. RICHARD J. DURBIN,
               A U.S. SENATOR FROM THE STATE OF ILLINOIS

        Chair Durbin. This hearing will come to order.
        Yesterday, Senators from both sides of the aisle asked
    Judge Merrick Garland about his ability to rebuild the
    independence of the Justice Department and restore its
    integrity so the American people know that the Nation's top law
    enforcement officer is working for them. I believe the Judge
    made it clear that he is the right person to lead the Justice
    Department at this moment in history. He will ensure that the
    Department meets the critical challenges facing America.
    Throughout his career at the Justice Department and as judge on
    the D.C. Circuit, Judge Garland has demonstrated that he has
    the experience, judgment, independence, and dedication to
    public service necessary to excel as Attorney General. I am
    sure today's testimony will further illustrate the Judge's
    qualifications.
        Today, we welcome five witnesses who are supporting Judge
    Garland's nomination to be the 86th Attorney General. Each will
    offer a different perspective on Judge Garland and the
    experience and talent he would bring to that role. I will
    introduce the majority witnesses, then I will turn to Ranking
    Member Grassley to introduce the minority witnesses.
        Our first witness in the majority is Wade Henderson. He was
    the CEO of--is the CEO of the Leadership Conference on Civil
    and Human Rights, served in that position from 1996 to 2017,
    currently back serving as their interim president. The
    Conference consists of more than 220 national organizations
    working to ensure equality under the law. Mr. Henderson can
    speak to many issues facing the Justice Department, such as the
    right to vote and reform of the criminal justice system.
        Andrea Tucker is a special witness, and I thank her for
    joining us today. She is a native of Washington, DC, and the
    mother of three children who are in the DC Public Schools
    system. Judge Garland tutors her twins, who are now in the
    sixth grade. Ms. Tucker can speak to and give us valuable
    insight into the Judge's character and his dedication to the
    community.
        Donna Bucella has held many public service roles across the
    Federal Government from the U.S. Army Judge Advocate General
    Corps to several positions in the Department of Justice. She
    worked closely with Judge Garland when he led the investigation
    of the Oklahoma City bombing, and she is going to share that
    experience with us.
        Ranking Member Grassley, would you like to introduce your
    other two witnesses?

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

        Senator Grassley. Yes, I would.
        Ken Starr is an attorney, academic, and public servant, and
    also appears on a lot of television for interviews and
    explanations on legal matters. He earned his undergraduate
    degree from George Washington University, master's degree from
    Brown University, and law degree from Duke. After law school,
    Judge Starr clerked on the Fifth Circuit for Judge David Dyer
    and then with Chief Justice Warren Burger on the Supreme Court.
    Judge Starr spent some years in private practice before serving
    as Counselor to Attorney General William French Smith during
    the first term of the Reagan administration. In 1983, Judge
    Starr was appointed by Reagan to serve as a judge on the U.S.
    Court of Appeals, D.C. Circuit. Judge Starr left the bench to
    serve as Solicitor General under President George H. W. Bush,
    and then served as Independent Counsel investigating President
    Clinton during Whitewater.
        After his services as Independent Counsel, Judge Starr
    returned to private practice as an appellate lawyer and law
    professor. Judge Starr also served as dean of Pepperdine School
    of Law and president and chancellor of Baylor University. He
    has argued 36 cases before the Supreme Court, authored more
    than two dozen publications, and received numerous awards for
    his public service. We welcome Judge Starr.
        The next person is Josh Blackman, professor of law, South
    Texas College of Law in Houston. Professor Blackman received
    his undergraduate degree in Penn State University before
    receiving his J.D., George Mason University School of Law. Both
    degrees were magna cum laude. Professor Blackman clerked for
    Judge Kim Gibson, Western District, Pennsylvania, and then
    Judge Danny Boggs of the Sixth Circuit. During his career in
    academia, Professor Blackman has proven to be a prolific author
    and an expert in constitutional law, healthcare, the Supreme
    Court and many other subjects. He has also testified 3 times
    before the House Judiciary Committee. I believe that this is
    his first time testifying before the Senate.
        We welcome both Judge Starr and Professor Blackman.
        Chair Durbin. Thank you, Senator Grassley. Because our
    witnesses are appearing via video, I will lay out the procedure
    we will follow. The mechanics are that witnesses will be sworn
    in, then they each have 5 minutes to provide an opening
    statement, and then it will be opened for questions. The first
    round of questions, each Senator will have 5 minutes to ask. So
    I would like to start by asking the members who are witnesses
    today to raise their right hand and please----
        [Witnesses are sworn in.]
        Chair Durbin. Let the record reflect that the Chair heard
    ``I do,'' which is an indication of good results from the oath
    being given.
        We are going to start with Mr. Henderson to proceed with
    your 5-minute opening statement. Please proceed.

       STATEMENT OF WADE HENDERSON, INTERIM PRESIDENT AND CHIEF
    EXECUTIVE OFFICER, THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN
                         RIGHTS, WASHINGTON, DC

        Mr. Henderson. Good morning. Good morning, Chairman Durbin,
    Ranking Member Grassley, and Members of the Committee.
        I am Wade Henderson, interim president and CEO of the
    Leadership Conference on Civil and Human Rights, a national
    coalition of over 220 civil rights, human rights, and social
    justice organizations dedicated to building an America as good
    as its ideals. Thank you for inviting me to join today's
    hearing to support Judge Merrick Garland's nomination as
    Attorney General of the United States.
        Now, when President Biden nominated Judge Garland, he
    rightly instructed him, and I quote, ``You are not the
    President's or the Vice President's lawyer. Your loyalty is not
    to me. It is to the law, to the Constitution, to the people of
    this Nation.'' Indeed, the Attorney General must be seen by
    every member of the public from every community as a fair
    arbiter of our legal system, whose sole duty is to serve the
    national interest. Unfortunately, our two most recent Attorneys
    General failed to live up to this high standard.
        From their unconscionable validation of President Trump's
    subversions of voting rights and our democracy, to their
    inhumane separation of families at the border, to their abuses
    of our justice system, Attorneys General Sessions and Barr all
    too often served as loyalists rather than independent law
    enforcement officials, and, in the process, deeply tarnished
    the reputation of the Department of Justice. Nowhere has the
    damage been more apparent than in efforts to undermine civil
    and human rights, and my written statement lists many of the
    harmful anti-civil rights actions taken by President Trump's
    Justice Department.
        America is in dire need of a course correction at DOJ. The
    Nation needs an Attorney General with a demonstrated commitment
    to integrity, independence, and the enforcement of civil
    rights. And DOJ must embrace our Nation's tremendous diversity
    while protecting the rights of individuals and communities that
    have borne the burdens of systemic discrimination in all its
    forms. Judge Garland, who is widely regarded as one of the top
    legal minds in the Nation, embodies these principles.
        I first became familiar with him as a nominee to the U.S.
    Supreme Court in 2016. As then-president of the Leadership
    Conference, I had the responsibility of reviewing Judge
    Garland's record, and I became deeply familiar with his views.
    I presented those findings in various public forums, including
    on C-SPAN's ``Washington Journal.'' I believe now what I
    believed then: Judge Garland is a jurist with a first-rate
    legal mind and great personal integrity, and he has
    consistently written and joined opinions that have upheld civil
    and human rights. Several of our member groups and allies
    reached similar conclusions. Frankly, he should right now be on
    the U.S. Supreme Court.
        That said, however, President Biden's selection of him for
    this position is an inspired choice. He, along with the
    Leadership Conference's own Vanita Gupta, our board member,
    Kristen Clarke, and attorney Lisa Monaco are the right team for
    this trying moment. If the issue is restoring the integrity and
    independence of DOJ, and it is, then Judge Garland is
    particularly well chosen. If the issue is restoring the mission
    of the institution, including its commitment to addressing
    civil rights enforcement and attacking racial inequality, and
    it is, then Judge Garland's own words speak best when he
    recounted so movingly yesterday how the DOJ first forged its
    identity fighting against the Ku Klux Klan and working to bring
    meaning to the Thirteenth, Fourteenth, and Fifteenth Amendments
    of the Constitution. For these reasons, we support Merrick
    Garland to be the Nation's next Attorney General fully and
    without reservation.
        I should be clear, however, that this report does not come
    without expectations for prompt and meaningful action on civil
    and human rights. My written statement outlines several
    priorities that DOJ should quickly address, among them,
    suspending the use of the Federal death penalty, rooting out
    and addressing white supremacy and hate violence, and helping
    to secure the right to vote for all Americans. The need for
    robust Federal civil rights enforcement is as important as it
    has ever been. The Nation needs a Justice Department that will
    do everything in its power to provide equal justice to all. We
    need an Attorney General who knows the Justice Department well
    and who will reinstate DOJ's historic commitment to integrity,
    independence, and vigorous civil rights enforcement.
        Merrick Garland would be such an Attorney General, and is,
    therefore, a fitting choice to lead the Justice Department at
    this crucial moment. We urge the Senate to confirm him, and
    thank you. And I would be happy to answer any questions. Thank
    you.
        [The prepared statement of Mr. Henderson appears as a
    submission for the record.]
        Chair Durbin. Thank you, Mr. Henderson.
        Professor Blackman?

       STATEMENT OF JOSH BLACKMAN, PROFESSOR OF LAW, SOUTH TEXAS
                     COLLEGE OF LAW, HOUSTON, TEXAS

        Professor Blackman. Thank you, Chairman Durbin, Ranking
    Member Grassley, thank you for inviting me to testify. My name
    is Josh Blackman, and I am a constitutional law professor at
    the South Texas College of Law, Houston. I support the
    confirmation of Judge Garland. He should be swiftly confirmed.
    In my brief time today, I will discuss three current DOJ
    policies that I hope Attorney General Garland will maintain.
        First, DOJ lawyers should not give legal effect to so-
    called rulemaking by guidance. Second, Attorney General Garland
    should carefully scrutinize consent decrees, especially those
    reached through so-called ``sue and settle.'' Third, DOJ should
    not resume the settlement practice of giving third party
    payments to non-parties. That money should be returned to the
    Treasury. These three issues may seem fairly low profile, but
    each practice will have a huge impact on the separation of
    powers, and these issues should be important to people on both
    sides of the aisle. I hope that Attorney General Garland will
    retain current DOJ policy with respect to these three issues.
        First, the Department of Justice should not enforce
    rulemaking by guidance. In the past, Federal agencies avoided
    the formal rulemaking process and instead issued various
    guidance documents. For example, substantive changes to the law
    were made through dear colleague letters, frequently asked
    questions, and even online bulletins, what I called Government
    by Blog Post. These guidance documents are not supposed to have
    the force of law. However, courts grant Auer deference to this
    sub-regulatory dark matter. In 2018, Associate Attorney General
    Rachel Brand instructed DOJ lawyers to not treat violations of
    guidance documents as violations of the law, and President
    Trump signed Executive Orders 13891 and 13892, which ordered
    other agencies to adopt the principles from the Brand Memo.
    Unfortunately, President Biden rescinded those Executive orders
    on his first day in office. At present, the Brand Memo is still
    codified in DOD regulations. I hope that Attorney General
    Garland will maintain the Brand Memo.
        Second, Attorney General Garland should carefully
    scrutinize consent decrees. These agreements include intricate
    requirements that DOJ could never impose through regulation or
    litigation, and these consent decrees can exist in perpetuity.
    During this time, Federal judges and court monitors can oversee
    State and local governments. Such agreements raise distinct
    federalism concerns. Indeed, many of these agreements arise
    from a practice known as ``sue and settle.'' Organizations and
    local governments would sue a like-minded agency, knowing there
    is no adversity, and reach favorable settlements. Fortunately,
    Attorney General Sessions took action to restrict those consent
    decrees. The Justice Department imposed restrictions on consent
    decrees, including limits on duration, sunset provisions, and
    means for termination. Critically, under Attorney General
    Sessions' guidelines, a consent decree cannot be used to
    achieve a policy goal that cannot be obtained through
    litigation. I hope Attorney General Garland will maintain this
    policy.
        Third, the Department of Justice should return any excess
    settlement funds to the United States' Treasury rather than
    make third party payments to progressive groups. These payments
    have been criticized as settlement slush funds. The Federal
    Government has allowed billions--billions, not millions--
    billions of dollars to be given to third party nonprofit
    organizations. These special interest groups were not parties
    in the litigation and were not victims of misconduct. Indeed,
    Senator Grassley has observed that the Justice Department
    directed funds at organizations that Congress had defunded. In
    this way, the executive branch bypassed the Constitution's
    appropriations process. In 2017, Attorney General Sessions
    prohibited the inclusion of third party payments and
    settlements. Any excess funds from settlements would be
    restored to the United States Treasury. Attorney General
    Garland should maintain this policy.
        Thank you for your time, and I will be happy to answer any
    questions.
        [The prepared statement of Professor Blackman appears as a
    submission for the record.]
        Chair Durbin. Thanks, Professor.
        Ms. Tucker, the floor is yours.

             STATEMENT OF ANDREA TUCKER, PARENT OF STUDENTS
            AT J.O. WILSON ELEMENTARY SCHOOL, WASHINGTON, DC

        Ms. Tucker. Good morning. First, I would like to say good
    morning to Chair Durbin, Ranking Member Grassley, all of the
    Members of the Judiciary Committee, and my fellow witnesses.
    Thank you so much for having me here today. My name is Andrea
    Tucker. I am a native Washingtonian and the proud mother of
    three scholars in D.C. Public Schools. I am honored to be here
    today, and I am thankful for the opportunity to come and speak
    on behalf of Judge Garland.
        I met Judge Garland roughly 5 years ago when he came to my
    children's school to meet with one of the fifth graders he was
    tutoring at the time. Unbeknownst to me, a few months later, my
    then-second grader would have the honor of becoming Judge
    Garland's next pupil. This was something that my child's
    teacher thought he could benefit from, specifically to help
    bring him out of his shell and to help with his reading
    comprehension. Judge Garland normally tutors a student until
    they graduate elementary school and the fifth grade, and then
    he starts with another child in second grade. So over the last
    4 years, Judge Garland has had weekly tutoring sessions with my
    son.
        At the end of every school year, Judge Garland has had--
    always invites all of the children of the tutoring program,
    which he started, to the D.C. Circuit Court of Appeals for a
    tour to see the courtroom, meet the U.S. marshals and the
    marshals' dogs, and get a feel for what it was that Judge
    Garland does for a living. Judge Garland also has a pizza party
    for them where they exchange gifts and other educational
    materials so students can continue their learning over the
    summer. One year when my son was struggling with
    multiplication, Judge Garland gave him some flashcards to
    practice with over the summer so Judge Garland could quiz him
    when they returned the following school year.
        Of course the past year was a bit different due to the
    pandemic. Judge Garland did not miss a beat. He quickly pivoted
    from tutoring in person at the school, once in-person tutoring
    was no longer an option, and contacted the school's tutoring
    coordinator to get my contact information, and he offered to
    virtually tutor my son. On top of that, he knew that my son had
    a twin sister in the same class, so he also offered to tutor my
    daughter. The judge felt like all students can benefit from
    tutoring and extra support, not just the ones that are
    struggling and behind. What parent would turn that down,
    especially during a time like this?
        So in the end, Judge Garland coordinated with my kids'
    school to get all the appropriate work packages to tutor both
    of my children once a week on Zoom, carefully guiding them
    through virtual learning and their schoolwork. All the extra
    help was much appreciated. The fact that he still wanted to
    tutor during a pandemic and give so much of his time to both my
    children was amazing. This shows his dedication to our
    community and love for children.
        One thing that made Judge Garland such a special tutor was
    he always began each session with asking how my children were
    doing and what funny, interesting things they did since they
    last met, getting to know them and engaging them on a personal
    level. He made tutoring fun, interactive, and effective, or, in
    the words of my daughter, ``He made tutoring and math more fun
    and understandable for me.''
        I mentioned earlier that when a student graduates fifth
    grade, Judge Garland usually begins with another student. But
    as my children approached their fifth grade graduation, they
    asked Judge Garland if he didn't mind staying with them for the
    upcoming school year if they were online. He quickly agreed. My
    children are now in sixth grade, and I could see their work
    with Judge Garland paying off in their grades.
        When you confirm Judge Garland, and I believe you should
    confirm him quickly, he is eagerly looking forward to getting
    back to his students to continue tutoring them, even as he
    settles into a new challenging role. This speaks to the
    character of the man who would serve as Attorney General. He is
    a man who actually does what he says he will, not one who just
    pays lip service to helping our communities. Character,
    commitment, and dedication, someone who will say--do what they
    say they will do, that is what you are getting in Judge
    Garland. Thank you.
        [The prepared statement of Ms. Tucker appears as a
    submission for the record.]
        Chair Durbin. Thanks, Ms. Tucker. I appreciate that.
        Judge Starr?

     STATEMENT OF HON. KEN STARR, JUDGE, U.S. COURT OF APPEALS FOR
         THE DISTRICT OF COLUMBIA CIRCUIT, RETIRED, WACO, TEXAS

        Judge Starr. Well, thank you, Mr. Chairman, and Ranking
    Member Grassley, and Members of the Committee. I am so honored
    to testify before the Committee today.
        Since 1789 and General Washington's nomination of Virginia
    Governor Edmund Randolph to serve as our Nation's very first
    Attorney General, few nominees to the office have come before
    the Committee, before the Senate with Judge Garland's
    extraordinary array of credentials. We just heard one, by the
    way, from Ms. Tucker, and that is his generosity of spirit. I
    would like to focus very briefly on leadership and the
    universal respect that the Judge garnered during his years as
    Chief Judge of the D.C. Circuit. He is not only viewed, as he
    is, as a superb jurist, but he was a superb leader of the
    court, a leader who listened carefully to his colleagues and
    who treated all persons in the court family with dignity and
    respect.
        What history teaches is that the role he will soon be
    occupying, if confirmed, is extraordinarily difficult. My late
    boss, Attorney General William French Smith, during the Reagan
    administration, compared the job to that of the captain of a
    hypothetical javelin team that elected to receive. ``It is a
    hard job, and controversy, at times quite bitter, goes with
    that territory.'' Consider the example of Attorney General
    Janet Reno during the Clinton administration. She was
    vehemently criticized, I think unfairly, for her decisions to
    appoint several Independent Counsels during President Clinton's
    first term. And yet, as she made crystal clear, the law that
    was in effect required nothing less, and her determination to
    do the right thing was mirrored by the outstanding FBI Director
    at the time, Judge Louis Freeh.
        This bedrock requirement of doing the right thing, of
    integrity, has been spoken about frequently during the course
    of these hearings, and, frequently, the reference is made to
    the independence of the Justice Department. But as Judge
    Garland full well understands in our constitutional
    architecture, Executive power is vested in the President of the
    United States. So how can, as a theoretical matter, any
    Attorney General be truly independent while serving at the
    pleasure of the President? Indeed, there were attempts made in
    the immediate wake of Watergate to reconstitute the Department
    as an independent agency, a very bad idea and constitutionally
    suspicious.
        The answer to this conundrum is independence with
    accountability lying in the very qualities that Judge Garland
    has shown through his long and distinguished tenure, and that
    is independence of judgment. And that is, the Attorney General
    must be allowed to make pivotally important decisions
    unimpeded, especially with respect to the most sensitive work
    of the Department, that of the criminal laws. And at times, the
    resulting decision may draw the ire of White House personnel,
    perhaps even of the President himself, as history teaches. But
    his commitment to integrity and professionalism as a total way
    of looking at the job, I think, was reflected in the work of
    Judge Griffin Bell and his contribution during his tenure as
    Attorney General. And Judge Bell's vast judicial experience,
    like that now of Judge Garland, made itself manifest in the way
    in which he conducted the office so honorably in his aptly
    entitled memoir, ``Taking Care of the Law.'' That is the job.
        Very briefly, the second broad area likely to be rife with
    controversy in the coming months is that of protecting
    religious freedom. Over the past decade, a number of voices
    have been raised, drawing into question long-settled principles
    of America's very first freedom, guaranteed by the majestic
    opening words of the First Amendment: ``Congress shall make no
    law respecting an establishment of religion or prohibiting the
    free exercise thereof.'' Here again, I think Judge Garland's
    distinguished traditional service points to optimism about the
    Justice Department's protecting religious liberty.
        His body of jurisprudence reflects stability and
    predictability as huge values in the law, and those of us who
    have long supported the Religious Freedom Restoration Act are
    optimistic. After all, the Religious Freedom Restoration Act,
    called RFRA, is the leading Federal civil rights law that
    protects all Americans in the exercise of religious liberty. It
    also embodies the constitutional perspective and jurisprudence
    of Justice William Brennan, for whom Judge Garland served as a
    law clerk. This is, in short, settled law, and it is crucially
    important that the Department of Justice not support any
    legislative or executive action that would dilute the vital
    protections that RFRA provides to Americans of all faiths.
        I thank the Chairman, and I look forward to your questions.
        [The prepared statement of Judge Starr appears as a
    submission for the record.]
        Chair Durbin. Thank you very much, Judge Starr.
        Ms. Bucella?

            STATEMENT OF DONNA A. BUCELLA, FORMER DIRECTOR,
     EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, AND FORMER U.S.
       ATTORNEY FOR THE MIDDLE DISTRICT OF FLORIDA, IRVING, TEXAS

        Ms. Bucella. Chairman Durbin, Ranking Member Grassley,
    distinguished Members of the Committee, thank you for allowing
    me this opportunity to testify at today's hearing.
        I have had the privilege of knowing Judge Garland since
    1993. We worked together at Justice from 1993 to 1997. At that
    time, I was the principal deputy director of the Executive
    Office for United States Attorneys, the organization that
    oversaw the 94 U.S. Attorney's Offices. Judge Garland and I had
    constant contact over those years, and I witnessed Judge
    Garland make sound and factually based decisions every day.
        I have been honored to serve our country in various roles,
    some of which include assistant United States attorney for the
    Southern District of Florida, the director and the principal
    deputy director for the Executive Office for United States
    Attorneys, the United States attorney for the Middle District
    of Florida, and the director of the Terrorist Screening Center.
    One of my most life-changing experiences happened while working
    with Judge Garland in Oklahoma City after one of the most
    horrific domestic terrorist acts was committed on U.S. soil.
        On April 19th, 1995, 168 people were senselessly murdered
    in Oklahoma City. That day, Attorney General Reno asked me to
    go to Oklahoma City. I went to offer assistance to the U.S.
    Attorney's Office and found that the entire downtown was a
    crime scene. Within 24 hours, Merrick arrived and immediately
    began leading the investigation. I had the opportunity to see
    Merrick deal calmly and purposefully with this horrific event.
    Initially, we worked out of the command center at the Southwest
    Bell Telephone building. Downtown Oklahoma City was still in
    chaos. The streets were closed, except law enforcement and
    first responders. The structures around the Alfred P. Murrah
    Federal Building and the Daily Register were still smoldering.
    Cars in the parking lot were crushed from the force of the
    explosion. Rescue workers and their dogs walked through the
    rubble searching for survivors. Later rescue dogs were
    substituted for cadaver dogs, and many first responders were
    desperate to find the remains of co-workers, family, friends,
    loved ones, law enforcement. Many Federal agencies had offices
    in the Murrah Building, and behind the building was the Daily
    Register where many victims were catastrophically impacted. On
    the other side of the Murrah Building was a Federal courthouse
    where Federal judges worked. Large shards of glass were
    embedded into office chairs, furniture, and the walls. How
    could this have happened in America's heartland?
        Merrick and I walked downtown around and through the Murrah
    Building. As we walked by the daycare center attached to the
    Murrah Building, an empty silence overcame us. Neither of us
    said anything to each other about our shock and grief, not
    until about 20 years later. We then went upstairs to one of the
    floors in the building. We saw a desk, a chair. There was a
    jacket on the chair, a can of Coke, papers still on the desk,
    but less than 5 feet away where we were standing, there was
    nothing but open space. Without exchanging words, we knew we
    had to find the perpetrators of this unimaginable terrorist
    attack. I knew Merrick, who would be leading the investigation,
    would ensure that justice would be done, would be carried out
    objectively and fairly. Emotions were not part of his decision-
    making process.
        Merrick is unwavering in doing what is right and has always
    demonstrated outstanding judgment. I worked with him weeks and
    months after the bombing and in Denver where the trial was
    conducted. I saw the countless hours he devoted to make sure
    that there were no corners cut and that justice was done. Under
    his leadership, he required the investigation be coordinated
    through the Western District of Oklahoma with involvement from
    at least eight different jurisdictions around the United
    States. It required a tremendous coordination effort, which he
    led. And as his nature, Judge Garland was committed to making
    sure the investigation was conducted in the right way. Why?
    Because we owed the victims, the people of Oklahoma, and the
    people of the United States a thorough and fair investigation
    that comported with the rule of law. Merrick would accept
    nothing less.
        He relentlessly followed the law throughout this complex
    investigation. He was meticulous in requiring that subpoenas
    were issued. There were complete records of how evidence was
    obtained. He made sure the applications for wiretaps, search
    warrants, and other investigative tools were reviewed and
    approved by each Federal district where the evidence was
    sought, as well as by the FBI and the Department of Justice.
    Merrick worked closely with Federal, State, local officials,
    agents, first responders. He made sure all voices were heard,
    and there were many voices.
        Merrick is a collaborator and consensus builder. He was
    always willing to tackle the difficult issues head on. While
    many in law enforcement had their own opinions of how the
    investigation should have been conducted, Merrick welcomed and
    listened to diverse opinions. His sense of collegiality and
    fairness and objectivity earned the respect of even those who
    may not have agreed with his decisions. His commitment to
    victims' rights was strong and enduring.
        Judge Garland dedicated most of his professional life to
    public service, which includes his 2 decades on the bench. He
    is brilliant, thoughtful, kind, empathetic, compassionate, and
    down-to-earth. He is a serious person and does not shy away
    from making the hard decisions. He is a man of integrity,
    honesty, and fairness. I can attest to all of this because I
    know him. I was there with him in Oklahoma City, and I have
    worked with him in good times and in bad. He has committed his
    life to our country. He is extraordinarily well qualified to be
    our Attorney General.
        Thank you for allowing me this privilege to share my
    thoughts regarding qualifications of Judge Garland, and I
    welcome any questions.
        [The prepared statement of Ms. Bucella appears as a
    submission for the record.]
        Chair Durbin. Thanks, Ms. Bucella.
        Now we will ask a few questions, and I will start.
        Let me start with Ms. Tucker, if she would be kind enough
    to answer a basic question that I am asking, not just as a
    Senator, but as a father and grandfather. I am trying to
    visualize the relationship between Judge Garland and your
    children, particularly since I have found, in my experience,
    that many of my kids and grandkids are very skeptical of my
    wisdom until they reach a certain stage in life. How have your
    children taken to Judge Garland in a personal way?
        Ms. Tucker. Well, my son has had the last 4 years before
    the pandemic to get to know Judge Garland since he came to the
    school every week to tutor him, so he had a familiar--
    familiarity with Judge Garland. And my daughter always saw him
    getting tutored by Judge Garland, and she was kind of a little
    jealous, so she also wanted to get tutored with him. But they
    just seem to love Judge Garland, and, like I said, he always
    asks how they are doing to get to know them on a personal
    level, so it is just easy for them.
        Chair Durbin. Do they ever talk about the fact that he has
    another life beyond being a good tutor as a judge--maybe
    considered for the Supreme Court--now being considered for
    Attorney General? Are your kids aware of that?
        Ms. Tucker. Yes, they are, and we have had several
    conversations in regards to that. And we also watched when
    Judge Garland was nominated by President Biden on TV, and they
    were just so excited. They were jumping up and down. It was
    like, ``That is my tutor. That is Judge Garland.'' So they know
    he is famous. I don't think they know the severity of it
    because they are still 11, but they know he is somebody.
        Chair Durbin. Thank you, Ms. Tucker, for joining us today.
        Ms. Tucker. Thank you.
        Chair Durbin. Wade Henderson, I have a basic question for
    you. When we look at the Reconstruction period, Jim Crow, there
    have been some great books written. I always recommend Carol
    Anderson's ``White Rage'' and ``One Man, No Vote.'' But it
    seems to me that the first thing--the first vulnerability of
    the recently freed African Americans was the right to vote, and
    that was the first--one of the first things that was attacked
    during Jim Crow. It still continues to this day. Voter
    suppression really focuses primarily on people of color after
    all is said and done. Any comments on your life experience with
    this issue?
        Mr. Henderson. Senator Durbin, thank you for your question.
    It could not be more pertinent to the issues of the day. When
    the Justice Department was--the Division was formed in 1870, as
    I mentioned before, one of its first tasks was to challenge the
    Ku Klux Klan for the violence that they perpetrated against
    newly freed, formerly enslaved people. That was almost--that
    was 150 years ago. Congress enacted the Ku Klux Klan Act of
    1871 to address that violence.
        Ironically, today, the same issues that affected newly
    freed African Americans at that time affect us and other
    communities of color today, literally 150 years after the
    enactment of the Ku Klux Klan statute. Recently, Congressman
    Bennie Thompson, Chair of the Homeland Security Committee, and
    the NAACP filed a Federal lawsuit charging a conspiracy between
    Former President Trump, Attorney Rudolph Giuliani, the Proud
    Boys, and the Oath Keepers to prevent Congress from certifying
    the election of this past year. And it was the Ku Klux Klan Act
    of 1871 that was the basis for this challenge.
        So as the great author, William Faulkner, once said, ``The
    past is never dead. It is not even past.'' The issues that
    motivated the challenge to African Americans 150 years ago
    remain a challenge to American democracy today. We are a Nation
    at war with itself, and we need a Department of Justice that is
    committed to lowering the temperature and enforcing the laws as
    they exist today, with the understanding that every American
    citizen deserves the right to cast a vote when appropriate, and
    that that right will be protected by the Department of Justice.
        Judge Garland is the perfect individual to carry out that
    responsibility, and, in times like these, it is so important
    that an individual of his integrity and stature be chosen to
    represent the Department of Justice. Thank you.
        Chair Durbin. Thanks, Mr. Henderson.
        Senator Grassley has told me that he has to go to a Finance
    meeting.
        Senator Grassley. No, if you have got more questions, I can
    wait.
        Chair Durbin. No, I am going to defer my questioning so
    that you can take the time for yours.
        Senator Grassley. Then I will go to the Finance Committee
    meeting.
        Judge Starr, you left the bench to go to the Department of
    Justice as Solicitor General. So what sort of advice would you
    have to Judge Garland that leaves the same court to go to be
    Attorney General?
        Judge Starr. He will be blessed with a very fine group of
    professionals throughout the Department overwhelmingly, but I
    must say his independence of judgment and taking a careful
    look, presuming, as we say in administrative law, regularity,
    the presumption of regularity. But sometimes the Department
    gets it profoundly wrong, and the Attorney General is where, in
    effect, the buck stops. So I have one very quick example.
        As I say in my written statement, during the Obama
    administration, the Justice Department took, what I believed,
    was an extraordinarily ill-conceived position with respect to
    religious liberty, trenching on values of the autonomy of
    religious institutions, specifically church schools. And the
    position taken by the Solicitor General--very able lawyers--was
    unanimously rejected by the Supreme Court, not 5-4, not 6-3,
    but 9-nothing, Justice Ruth Ginsburg joining, Justice Sotomayor
    joining, in a huge rebuke to the Justice Department.
        Where has the Justice Department gone wrong? They had gone
    wrong, first, at the EEOC. It took the position that religious
    liberty did not really count on the scales beyond simply
    association of liberty, more generally, of the Rotary Club or
    the NAACP, important organizations and they enjoy associational
    freedoms. But the Hosanna-Tabor Angelical School was a
    religious institution, and that, of course, triggered First
    Amendment values, very specifically, those first 16 words.
        So there are times when even with respect to the office
    that I was privileged to hold, the Solicitor General, that on
    issues of fundamental importance to our constitutional order,
    the Attorney General should be willing to focus on it and to
    step in and say, with all due respect, Solicitor General, and
    your very able team, I think you have got this one wrong.
        Senator Grassley. Okay. I have another question for you,
    but because time might run out, I have an important question
    for Professor Blackman. Historically, the solicitor--
    historically, the Solicitor General's Office has been seen as
    representing the permanent interests of the Government, not the
    political interests of any single Presidential administration.
    Paul Clement in that position said, ``It has been the long-term
    position of the Justice Department to defend the
    constitutionality of statutes whenever reasonable arguments can
    be made.'' So far, we have seen the Biden administration change
    its litigation position on a number of high-profile cases, and
    I would expect that might continue.
        So two questions to you. I am going to ask them both at the
    same time, Professor. If a case is being litigated, what is the
    standard for whether to change a position, and is a simple
    political disagreement enough, and how does the Supreme Court
    view an administration changing its litigation position?
        Professor Blackman. Well, thank you, Senator Grassley. It
    is a pleasure to be here.
        In the past, the Supreme Court has been very critical of
    changes of position. During the Obama administration, Chief
    Justice Roberts, in particular, went after some of the lawyers
    in the Government, ``Why did you change your position?'' And
    the answer is always the same: ``Upon further reflection, we
    have a new position,'' and ``upon further reflection'' is
    really code for ``upon further election,'' rather than a simple
    change in position. I would hope if General Garland is in the
    office and decides to switch position for the Court, he gives a
    reason why. It cannot just be we have a new President. If that
    is the reason, then state it, but maybe there is some judgment
    about the law. But I suspect that at some point, the Court will
    get annoyed that all these positions keep flipping on a fairly
    regular basis.
        Senator Grassley. Okay. I am going to go back to Judge
    Starr. I believe you are familiar with the Justice Department's
    recent practice of dismissing False Claims Act cases brought by
    whistleblowers. The Justice Department argues that it has
    unfettered discretion to dismiss any claim brought by a
    whistleblower. If legislation is needed in this area, I am in
    the process of trying to clarify Congress' intent, which
    oftentimes DOJ or the Supreme Court gets wrong, and we have to
    correct it, and I have had a lot of help from Senator Leahy in
    regard to that. Based on your reading of the False Claims Act,
    would you--what would be your advice as the appropriate
    interpretation of the Government's dismissal authority?
        Judge Starr. Yes, thank you, Senator Grassley, and I think
    that the Government has taken, frankly, an unconstitutional
    position. It is seeking to arrogate complete authority, what it
    calls an unfettered discretion, to dismiss a qui tam relator's
    suit seeking redress against possible fraud against the
    Government. And I think fundamental constitutional principle
    suggests that the interpretation of the law that has been
    given, including by my former court and Judge Garland's current
    court, the D.C. Circuit, is just profoundly wrong in our system
    of checks and balances.
        There is a key interest on the part of qui tam lawsuits,
    and that is of the qui tam relator, the whistleblower, and
    those merit much more protection than is involved in the
    opportunity, as one judge put it. The hearing before the
    dismissal of the lawsuit is ordered by district judges to give
    the qui tam relator and her counsel an opportunity to persuade
    the Government not to do that. This, I think, diminishes the
    judicial role, calls the Article III power into fundamental
    question, and arrogates authority that I do not believe, and I
    hope that you and Senator Leahy likewise believe that Congress
    never intended in those magnificent amendments in the 1980s
    that you helped so instrumentally as really the architect of
    those amendments, Congress never intended to give the authority
    of that sort to the Justice Department's Civil Division and,
    ultimately, the Attorney General.
        Chair Durbin. Thanks, Senator Grassley, and I realize you
    have to go to another Committee hearing. With the permission of
    the Senator from Connecticut, the Senator from Texas has a time
    issue. Would you be all right if I recognized him first?
        Senator Blumenthal. Absolutely.
        Chair Durbin. All right.
        Senator Cornyn.
        Senator Cornyn. I will be happy to return the favor at some
    future date. Thank you, Mr. Chairman.
        Judge Starr, you have--during your distinguished career,
    you have had a lot of different hats that you have worn. One,
    of course, is as Independent Counsel, which was the predecessor
    to the--now the Special Counsel provisions that--under which
    Robert Mueller and now Mr. Durham have been appointed. I
    understand why Judge Garland was reluctant to talk about the
    Durham investigation and what he would or would not commit to,
    but I would like to get the benefit of your insight and
    experience on what kind of advice would you give Judge Garland,
    what kind of advice would you give us in terms of allowing the
    Special Counsel to complete their job as assigned without the
    Congress interfering.
        Judge Starr. Well, the questions yesterday, Senator Cornyn,
    pointed to the key issue: will Attorney General Garland, once
    confirmed, support fully, completely, at a practical and moral
    level, as well as a legal level, the ongoing Special Counsel
    investigation. Under the regulations promulgated by Attorney
    General Janet Reno in 1999, those are very strong and solid
    regulations, and, in my judgment, there is a guarantee of
    practical independence subject to the overall supervision of
    the Attorney General.
        So just as the Attorney General is well advised not to be
    interfering with the orderly conduct of an investigation by a
    United States attorney's office and the like, so, too, and all
    the more so in light of the sensitivity of a Special Counsel
    investigation, that is where, it seems to me, it is very wise
    and prudent for Judge Garland, as Attorney General, to show the
    kind of respect and restraint that he has demonstrated
    throughout his judicial career. He should preserve, protect,
    and defend that investigation and to provide the assurances to
    Mr. Durham that that protection will proceed so long as there
    is not good cause for his removal, which, of course, would be a
    very daunting standard to meet.
        Senator Cornyn. And that is the same advice you would give
    any Attorney General, I suspect.
        Judge Starr. Yes, indeed, because it is the law. I think
    sometimes people on the outside do not realize that a
    regulation has the force of law, and I think those regulations,
    which have been in effect for, lo, these many years, have stood
    the test of time over these decades during both Republican and
    Democratic administrations. So I would say, as Judge Garland is
    accustomed to doing as a judge, stay the course. I would give
    that advice to any Attorney General.
        Senator Cornyn. Thank you very much. Professor Blackman,
    recently, President Biden announced that he wanted the
    Department of Justice to review its policy on allowing it to
    divert some of the money from settlement agreements to third
    parties who are not even parties to the lawsuit. The goals of
    the settlement agreement between the Department and a private
    party, say, a bank or a business, are to compensate victims, as
    you know, redress harm, and deter unlawful conduct. So it
    strikes me as a little odd and highly problematic that we would
    let the Department of Justice pick and choose their favorite
    charities or political causes, even perhaps at the expense of
    making the victim whole, which, of course, is the whole goal of
    compensating the victim. Would you give us the benefits of your
    thoughts on changing this policy, so allowing the sharing of
    the proceeds of a settlement or a jury verdict with non-parties
    to the litigation?
        Professor Blackman. Thank you, Senator. Attorney General
    Sessions adopted a policy that I thought was quite salutary. It
    prohibited these so-called third party settlements where the
    Government would pick and choose which charities would receive
    millions and hundreds of millions of dollars--Senator Grassley,
    who stepped out, was a key hawk on this issue. In the Bank of
    America settlement, I think hundreds of millions of dollars
    were directed to various charities that had no connection to
    the actual offense. I think there is even a constitutional
    problem with these settlements. If there is any excess money,
    it should go to the U.S. Treasury. Congress then could choose
    to fund or not these settlements.
        Some of the charities that were selected for the settlement
    funds were actually defunded by Congress, so these are end
    run--end runs around the appropriations process. It is
    disappointing that the Biden administration is revisiting this
    policy, and I suspect it will be abandoned. I can only hope
    that Judge Garland will perhaps be more judicious in giving
    these vast amounts of money to groups that were in no way
    affected by the litigation.
        Senator Cornyn. Thank you very much.
        Chair Durbin. Thank you, Senator Cornyn.
        Senator Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman.
        Thank you all for being here today, and I would say,
    judging by your testimony, but, more important, by Judge
    Garland's testimony yesterday and his reception in this
    Committee, that he should be approved by an overwhelming
    bipartisan Majority. He demonstrated a fierce independence and
    strong sense of the integrity and credibility that needs to be
    restored at the Department of Justice, illustrated, I think,
    most tellingly by his saying again and again that he will
    involve the professionals, the career prosecutors,
    investigators, in decisions, and that those decisions will be
    based on fact, not politics; that he will insulate the
    Department of Justice from political interference and defend
    its independence, but, equally important, his commitment to
    correcting racial injustice and overcoming inequities and
    systemic racism that have plagued policing in this country and
    our justice system in almost every area of our society.
        I would like to ask you, Mr. Henderson, if you were
    advising Judge Garland, what would you recommend to him that he
    adopt in the way of policies to address these kinds of
    inequities and issues?
        Mr. Henderson. That is a very good question, Senator
    Blumenthal. I would begin first by suggesting, at least with
    regard to the issue of policing in our country, that the
    Leadership Conference supports meaningful police reform. Quite
    frankly, we cannot understand how anyone who witnessed the
    torture and death of George Floyd, or the results of a wrongly
    delivered no-knock warrant in the case of Breonna Taylor,
    resulting in her death, or the death of a victim like Eric
    Garner, who suffered from an illegally applied chokehold that
    ended up killing him, how any of those incidents could be
    ignored by someone arguing the need for police reform.
        As a matter of fact, 2 days ago, the Office of the Chicago
    Inspector General issued a scathing report about the practices
    of the Chicago Police Department in the aftermath of the George
    Floyd-related demonstrations in Chicago. And the report found
    that many police officers made an effort to avoid
    accountability by obscuring their badge numbers or their names
    and so the issues related to their conduct could not be
    adjudicated. Now, this comes on the heels of an effort by the
    previous administration to end consent decrees that had sought
    reform of the Chicago Police Department.
        So clearly there is evidence and a record of the need for
    accountability. As a matter of fact, in today's Washington
    Post, there is an article about police units from Japan and
    Canada and Finland reviewing an instance where a Seattle
    resident was killed by police, even though the resident was
    clearly mentally incapacitated. And the three police
    departments that reviewed it from these other countries say--
    said, look, we deal with these issues very differently, and it
    really underscored the importance of reform.
        So, we hope that Judge Garland will look at these issues
    and understand their importance. We are supporting the George
    Floyd Justice in Policing Act, which may be coming up soon for
    a vote in the House of Representatives and hopefully will be
    presented to the Senate for action. We think that is one step
    where the Department could make a contribution to the kind of
    meaningful reform we support. And that is just one example,
    Senator, of what we would recommend on the front end.
        Senator Blumenthal. I am a strong supporter and co-sponsor
    of the Justice in Policing Act, and I think that one of the key
    elements of the policing reform ought to be changing the mens
    rea requirement under Section 242. I had an exchange with Judge
    Garland yesterday, and I was very pleased that he is receptive
    to lowering the threshold standard so that more accountability
    can be imposed for violations of constitutional rights by
    public officials generally, not just by police.
        And, of course, like you, I am committed to eliminating
    racial injustice, not just in policing, but in housing where
    redlining continues to exist, in education where the quality of
    a child's education often depends on their ZIP Code, in
    workplace discrimination where jobs still are denied and
    promotions denied based on racial injustice, and, of course, in
    healthcare where there are dramatic disparities illustrated by
    what has been happening in the pandemic and its impact
    disproportionately on Black and Brown communities. So I thank
    you for your commitment, and I am very pleased that Judge
    Garland has emphasized the priority of eliminating racism and
    racial injustice, along with his fight against violent
    extremism and white supremacy and our society. Thank you very
    much, Mr. Henderson.
        Thanks, Mr. Chairman.
        Chair Durbin. Thank you, Senator.
        Senator Lee.
        Senator Lee. Thank you, Mr. Chairman.
        Thanks to our witnesses participating with us today.
        Judge Starr, I would like to start with you, if that is
    okay. Would you agree that removing Special Counsel Durham for
    anything other than cause would flatly and inexcusably
    contradict the administration's claims that the Biden Justice
    Department will be free from political pressure?
        Judge Starr. Yes, it would take the form, as it were, of a
    Saturday Night Massacre. We all recall that or know it from
    history. I recall it ever so vividly, as most Members will,
    which is the President of the United States acting imprudently
    and resulting in an act of conscience by the then-Attorney
    General of the United States, Elliot Richardson, who said, ``I
    cannot in conscience fire the Special Prosecutor,'' as
    Archibald Cox was known. It would, in fact, create a firestorm
    absent the most compelling circumstances. And I have great
    confidence in Judge Garland, given his record of integrity and
    his independence of judgment, that were there to come such a
    suggestion from anyone--I am not suggesting that the President
    of the United States would do this, but anyone as a senior
    leader in the administration suggesting this kind of action
    without compelling circumstances would be a grievous mistake.
        Senator Lee. Thank you, Judge Starr.
        Professor Blackman, let us go to you for a second. Is there
    a point at which what is known as ``prosecutorial discretion''
    simply becomes Executive fiat? And if so, at what point does
    that run afoul of the Constitution?
        Professor Blackman. Absolutely, the President has a duty to
    take care that the laws are faithfully executed, and that means
    something. Congress gives the Executive some latitude, some
    discretion, but the President cannot simply decline to enforce
    a law he dislikes. And I think we have seen this pattern all
    too often. I think some of the Executive actions on immigration
    amount to an abdication of the law. I think even in the first
    100 days the Biden administration tried to say no more
    deportations for 100 days; I do not think he has that much
    discretion. We have seen perhaps a complete moratorium on the
    death penalty. That can go beyond the bound of discretion. I
    think Congress could perhaps do more to legislate to make clear
    what those rules are, but I am troubled by the failure to
    faithfully execute the law. It is something that I think we are
    seeing increasingly.
        Senator Lee. So you mentioned prosecutorial discretion
    being invoked as a doctrine in the context of immigration. I
    assume you may be referring there, among other things, to DACA.
    It reminds me of a piece that you wrote with my friend Ilya
    Shapiro about a year and a half ago in which you said that if
    Federal law, in fact, supported DACA, then certain key
    important provisions of the INA would themselves run afoul of
    the non-delegation doctrine. Can you explain what you mean
    there?
        Professor Blackman. Of course, and I am thankful my
    colleague at Cato, Ilya Shapiro, gets a shout-out.
        Congress has created a very elaborate scheme of granting
    discretion to the Department of Homeland Security. For example,
    you can let the Secretary set priorities. That is a fairly
    nebulous provision. You can set priorities.
        The Obama administration and perhaps now the Trump--Biden
    administration said these nebulous provisions about granting
    discretion to set priorities let them basically create this
    elaborate program by granting lawful presence to over a million
    people and grant them work authorization.
        If you can read the INA that broadly, then the entire INA
    is perhaps unconstitutional, right? You should not be able to
    read it--the Supreme Court punted on this issue. Chief Justice
    Roberts does what he often does and declines to decide
    important questions, and they just did not decide it. But
    eventually the courts will have to decide the DACA litigation,
    and this is something that Attorney General Garland will be
    litigating now, defending the policy for the new
    administration.
        Senator Lee. So in other words, you have got concerns with
    the notion that the President of the United States could just
    tell the Department of Justice in advance to not comply with
    this specific provision of the INA. That would concern you.
        Professor Blackman. Oh, very much so, yes.
        Senator Lee. Section 241 of the INA, of course, provides
    that, ``When an alien is ordered removed, the Attorney General
    shall remove the alien from the United States within a period
    of 90 days.''
        On what planet, in what universe would it then be
    appropriate to convert the word ``shall'' into ``may not'' or
    ``may decide not to''?
        Professor Blackman. That is exactly right, Senator.
    Generally, the word ``shall'' means ``must.'' That is how we
    read the word ``shall'' in the law. And Congress has created a
    very elaborate scheme by which the Attorney General can cancel
    removal through very specific rules. But the moratorium enacted
    on day number one was across the board: every deportation shall
    stop.
        A Federal judge down in Texas, in Corpus Christi, declared
    that policy unlawful. As far as I am aware, that has not been
    appealed up. That is still in the district court. I think we
    will see more of these sorts of efforts to try to just not
    enforce parts of the law that are unpopular.
        Yesterday Senator Sasse made a point that, over time,
    Article II, the Executive, has grown; Article I, the Congress,
    has sort of shrunk. I would hope it reverses and Congress
    asserts itself more over immigration and puts some teeth into
    the limits on the President's powers.
        Senator Lee. Thank you, Mr. Chairman. I see my time has
    expired, and I would note here that this is part of a
    consistent pattern that has been under the leadership of
    Republican and Democratic Congresses and White Houses combined
    over the last 80 years in which we have taken power away from
    the American people in two steps. First, we have taken non-
    Federal power and brought it to Washington. Within Washington,
    we have taken that power or any power that we might have
    previously had and handed it over to the executive branch. We
    cannot do this anymore. We have got to reclaim our role under
    Article I as the lawmaking branch.
        Thank you.
        Chair Durbin. I thank the Senator from Utah. We can reserve
    for another hearing the question of prosecutorial discretion
    because there are not enough resources to prosecute every
    suspected criminal, and there are decisions being made every
    single day by agencies as to which are the more important
    prosecutions to pursue.
        Senator Coons.
        Senator Coons. Thank you. Thank you, Chairman Durbin.
        And thank you to the witnesses. I appreciate this
    opportunity to consider Judge Garland's nomination for Attorney
    General from the perspective of those who have worked with him,
    supported him, come to know him both as an individual and as a
    professional.
        Ms. Bucella, if I might, you worked with him around the
    prosecution following the Oklahoma City bombing. You have
    praised Judge Garland's leadership as someone who made everyone
    feel heard. I would be interested if you would briefly explain
    what stuck out to you about his leadership during that
    demanding prosecution of what was at that point the most
    pressing and challenging recent example of domestic violent
    extremism.
        Ms. Bucella. Thank you very much, Senator Coons. Judge
    Garland is a very thoughtful person, and you need to remember
    that at that time there were all these competing agencies. We
    had Federal, State, and local law enforcement. We had a DA's
    office. Everyone wanted to run the case. Merrick was incredibly
    patient and very--a great listener, and he took into account
    everybody's ideas. And this was something that was
    unimaginable, and you can only believe that the people of
    Oklahoma wanted to take care of business in Oklahoma. But
    because it was domestic terrorism, because--while the act
    occurred in Oklahoma City, it impacted so many other
    jurisdictions. McVeigh was in a number of different locations.
    His family was in different locations. Terry Nichols had family
    and co-conspirators in different locations. And it really,
    really took a combined effort, and so it was not, you know,
    Merrick's way or the highway. It was really--I remember sitting
    down in the command center and listening to people strenuously
    and vigorously argue their opinion about how they wanted the
    case to be prosecuted. And, ultimately, while everything is not
    perfect, everybody does not get exactly the way they wanted it,
    at the end of the day it was a solid prosecution, and he
    actually had everyone have their say in it.
        Senator Coons. Thank you. I think a critical role for the
    Attorney General is to help coordinate Federal, State, and
    local law enforcement, to coordinate across different agencies,
    different interests, different regions. It is encouraging to
    hear about what I have heard about his experience as a judge,
    that he is able to craft consensus opinions from judges of
    widely varying views. But to hear about his experience as a
    prosecutor is encouraging as well.
        Ms. Tucker, I am a father of twins. If you could, tell me
    something about your experience with Judge Garland tutoring
    your twins. I thought he really showed his humanity in his
    answers yesterday, but if you could speak briefly to how he has
    influenced your children and your family and what that tells
    you about his values, I would appreciate that.
        Ms. Tucker. Thank you so much. Thank you for your question.
    I would say, as Ms. Bucella previously stated, Judge Garland is
    so patient and he is so kind, and he is just so down-to-earth,
    and he gravitates toward kids, and he just sucks them in, and
    they just want to do that. They want to be interested in what
    it is that he is teaching them. He just makes it interesting to
    where they are able to gravitate to it. And I have seen my--he
    started tutoring my son in the second grade. His reading and
    his comprehension has tremendously grown, and he is an Honor
    Roll student now.
        So, I appreciate the time that he invested in him because,
    you know, he always encourages him, be like, ``You can do it.
    Come on, let us try to figure this out.'' I mean, it takes a
    special person and a patient person in order to be able to want
    to teach kids. I thank all these teachers out here because it
    takes a lot to be a teacher and a tutor, because he seems to
    know everything that they are learning in the school and he can
    explain it a lot better than I could. So I just appreciate what
    he has learned from that, and they are just so excited about
    learning.
        Senator Coons. Thank you, Ms. Tucker, and thank you for
    joining our hearing today.
        Ms. Tucker. You are welcome.
        Senator Coons. Mr. Henderson, it is great to see you again,
    Wade. You have noted that addressing America's longstanding
    racial inequalities, that dealing with racial justice will be
    central to many of the issues on the Justice Department's
    docket for the coming years, whether it is voting rights,
    criminal justice, environmental justice, many others.
        Can you just speak to the importance, the urgency of
    confirming the other senior nominees who will help guide the
    Department of Justice alongside Judge Garland, should he be
    confirmed, Vanita Gupta to be Associate Attorney General and
    Kristen Clarke to lead the Civil Rights Division? How will they
    be critical to his leadership? And how will the Attorney
    General play a key role in shaping the Department's work on
    these issues with their vital support and partnership?
        Mr. Henderson. Senator Coons, thank you for your question.
    When President Biden announced the selection of Judge Garland
    to be his next Attorney General, he introduced three other
    attorneys to fill out a quartet of Department leadership that
    would be responsible for the enforcement of a number of issues,
    but of greatest concern to us is the civil rights enforcement
    of the Department, returning to its original mission from 1870.
    We were so pleased that the President announced the selection
    of Vanita Gupta to be the Associate Attorney General, the
    Number 3 position in the Department; and as you know, she comes
    from the Leadership Conference on Civil and Human Rights as our
    president, but before that had established herself as one of
    the great civil rights lawyers in this country and of her
    generation. And her history of involvement as deputy general
    counsel with the ACLU and ground-breaking attorney with the
    NAACP Legal Defense and Educational Fund lets us know that the
    President is deeply committed to exercising oversight of the
    Civil Rights Division in the most important way, and Vanita's
    selection confirms that.
        The choice of Kristen Clarke could not be better. Kristen
    currently serves as the president of the Lawyers' Committee for
    Civil Rights Under Law, that esteemed organization established
    in 1963 by President Kennedy to address the great injustices
    that were occurring primarily in the South, directed at African
    Americans, making an effort to prevent them from exercising
    their constitutional rights. Kristen has been an outstanding
    civil rights lawyer. Her tenure with the State government in
    New York handling civil rights issues and her current work with
    the Lawyers' Committee has distinguished her among her peers as
    really one of the great attorneys of her generation.
        The two of them taken together will bring an incredible
    strength to the Department that should not be ignored, and at
    this time of great controversy for the country, having both
    Kristen Clarke and Vanita Gupta as part of the quartet of
    leadership under the guidance of Merrick Garland, along with
    Lisa Monaco as the Deputy Attorney General, makes for, in our
    view, one of the strongest teams that the Department has ever
    fielded.
        Judge Garland's commitment to including his supporters, his
    staffers, as part of the decisionmaking of his Department,
    gives us great confidence that this Department will use all of
    the resources available to it to ensure that the constitutional
    rights of all are greatly protected.
        So thank you so much, and we hope that the Senate will move
    expeditiously to confirm Vanita and Kristen Clarke as soon as
    possible.
        Senator Coons. Well, thank you, Wade. Thank you for that
    input, Mr. Henderson. I agree with you this is a very strong
    leadership team, and I look forward to working with you and
    this Committee for their swift confirmation.
        Thank you, Mr. Chairman.
        Chair Durbin. Thanks, Senator Coons.
        We understand Senator Booker is available from a remote
    location.
        Senator Booker. I am. You make it sound more glamorous than
    it actually is, but thank you very much, Chairman.
        I would like to go back to Wade Henderson, who I notice has
    a great haircut these days.
        [Laughter.]
        Senator Booker. I really appreciate you finally joining me
    in the world of bald-dom, sir. But, you know, just focusing on
    the Civil Rights Act of 1957 that created the Justice
    Department Civil Rights Division and gave the Attorney General
    new authorities to protect civil rights and ensure equal
    protection for all Americans--and I know you have dedicated so
    much of your life to that work of protecting civil rights,
    advancing equality. But in the decades since then, we have
    seen, unfortunately, that the Attorney General and the
    Department can decide not to really stand and try to create a
    Nation that is really liberty and justice for all.
        You take the Trump administration. We saw a real
    abandonment of the focus on voting rights. For instance, the
    Trump administration's Justice Department all but ignored the
    Voting Rights Act of 1965. With the exception of one school
    district settlement just last year, it did not file a single
    Voting Rights Act case over the last 4 years.
        And so, Mr. Henderson, what do you think the Department of
    Justice's priorities should be in terms of restoring civil
    rights? And what gives you confidence that Merrick Garland is
    the right person for the challenges that we see today in terms
    of equality of access to the polls and voting rights in
    general?
        Mr. Henderson. Thank you for that question because I think
    it is central to the challenge facing our Nation today. I
    mentioned earlier in response to another question that America
    at this point remains a country at odds with itself. I cited
    the fact that the issues which were central to the
    controversies of the 2020 election cycle could well have come
    directly from the challenges facing our Nation in the aftermath
    of the Civil War. The fact that the Fifteenth Amendment to the
    Constitution, which guaranteed the right to vote to African-
    American men--regrettably, not to women at that time--became
    the central issue that this country faced regarding the 2020
    election cycle and whether Americans who indeed are citizens of
    this country, eligible to vote, could have their votes
    respected and protected and heard.
        The Department of Justice has a traditional responsibility,
    as Merrick Garland noted yesterday, formed for the purpose of
    defending the Reconstruction Era statutes that are making sure
    that the Thirteenth, Fourteenth, and Fifteenth Amendments to
    the Constitution have real meaning. And yet the past
    administration did much--in fact, everything in its power to
    subvert the enforcement of those laws and did so in a way that
    greatly damaged--greatly damaged--the interests of the American
    people and the reputation of the Department of Justice.
        We are quite confident that the team that President Biden
    has put together with Merrick Garland at the helm, bringing his
    vast knowledge of the law, his superb gift as an attorney and
    someone who knows the Department well, will invest all of his
    authority in helping, as he said, to address this central issue
    in the most direct and important way. He has put together a
    team of individuals, as he noted, particularly with Vanita
    Gupta and Kristen Clarke, that gives us tremendous assurance
    that these skillful attorneys, knowing and understanding the
    Department's role in helping to achieve equal justice under law
    for all, will be able to carry out that responsibility in the
    best way practical. And I am very confident in the Attorney
    General's willingness to open his door to hear concerns of
    organizations, a vast array of who will have access to him, the
    entirety of the country, truthfully. He will evaluate those
    requests and carry them out in a way that fully, fully
    implements the commitment of President Biden to ensuring that
    there is justice for all in our country. And this is the time
    to do it.
        So I hope that the Attorney General will focus, as he has
    pointed out, addressing issues of hate violence and white
    supremacy in our country. I hope, like Secretary Austin at the
    Pentagon, he will make an effort to investigate hate violence
    and law enforcement in this country. We saw in the unfortunate
    events of January 6th, and we saw, I have to say, many police
    officers sacrificing themselves for the interest of American
    democracy, and they need to be lifted up for that, particularly
    the three individuals who lost their lives on that day, Officer
    Sicknick and his two colleagues who committed suicide. We know
    the hardship that police officers face, and we are sympathetic
    to that. But at the same time, we also know that deeply
    embedded in that crowd were members of law enforcement who
    were, in fact, sympathetic to and supporting the
    insurrectionists' efforts that were underway at that time. And
    I hope that the Attorney General will pursue those issues in a
    meaningful way and help to ensure that that kind of activity
    does not go forth in the future.
        Thank you.
        Senator Booker. Sir, thank you. My time has expired. I am
    grateful for that. I am also grateful for the work that you
    have done in finding bipartisan accord on issues so urgent in
    criminal justice reform. It is just great to see you. Thank you
    for taking the time, and you and Michael Jordan have done more
    for bald Black men in America.
        [Laughter.]
        Mr. Henderson. Thank you, Senator.
        Senator Booker. You are out there making us look good.
    Thank you.
        Chair Durbin. Thank you, Senator.
        Senator Tillis.
        Senator Tillis. Thank you, Chairman Durbin.
        I am going to be brief. I came here--I was in North
    Carolina yesterday and participated in the hearing via Webex.
    Unfortunately, with the time I had to go to the airport, I was
    going to ask some riveting questions about intellectual
    property, trademarks, and the things that bring everybody to
    this Committee every day, but I have submitted those as
    questions for the record. I wanted to be here in person to say
    that I thought he did an extraordinary job in the hearing
    yesterday. I have no questions for the witnesses. I listened to
    their opening statements, and I fully intend to support his
    confirmation.
        Thank you, Mr. Chair.
        Chair Durbin. Thank you, Senator.
        Senator Whitehouse.
        Senator Whitehouse. Thank you, Chairman. I just wanted to
    stop in. We have a hearing in Finance on the Deputy Treasury
    Secretary, so I am sorry I have not been here through the day.
        But I wanted to welcome Donna Bucella, who is one of our
    witnesses. Donna was the head of the Executive Office for
    United States Attorneys when I was the U.S. Attorney in Rhode
    Island, so she had to keep an eye on not only me but another 92
    U.S. Attorneys around the country, and I want to wish her well.
        I would like to ask her thoughts on the question that I
    raised with Judge Garland yesterday, which was how the
    Department should respond to what I consider to be pretty grave
    damage done to its norms and its practices and its values and
    its reputation during the Trump years. And the Attorney General
    suggested that working through the Inspector General and
    working through the Office of Professional Responsibility,
    which oversees attorney conduct as essentially members of the
    bar, might be enough to take on the problem. I think that the
    problem is worse than that. It is more systemic than that, and
    some means of trying to understand what went wrong so that you
    can right it. If you had a ship that you were sailing and the
    ship had a fire on board, the first thing you would do after
    you put out the fire is commission a damage assessment so you
    would know what the capabilities were of the vessel and what
    needed to be repaired and what was the most urgent thing to
    repair and all of that.
        So if I might ask Ms. Bucella for her thoughts, having been
    one of the administrative leaders of the Department in the
    past, on this question of what might be options for the
    Attorney General, if he is confirmed, to consider if he finds
    out that the problems over there are actually worse than just
    what the Inspector General and OPR can handle. Ms. Bucella.
        Ms. Bucella. Thank you, Senator Whitehouse. It is good to
    see you again.
        Senator Whitehouse. I was one of your least difficult and
    problematic U.S. Attorneys, correct?
        Ms. Bucella. Of course you were.
        [Laughter.]
        Ms. Bucella. As you know, Senator Whitehouse, trying to
    find out all of the information--it resides in many places. I
    believe that Judge Garland would be best at trying to
    commission some sort of a working group using his U.S.
    Attorneys, because as you know, as the chief law enforcement
    officer in the 94 different districts, each of the U.S.
    Attorneys have accessibility to Federal, State, and local law
    enforcement. They also have an opportunity to hear on the
    ground what is going on in their communities. So perhaps having
    an Attorney General Advisory Committee Subcommittee to also
    address this to be able to provide input and information and
    recommendations for resolution or recommendations for where do
    we go next. I think there are so many dedicated men and women
    out there in the DOJ law enforcement community as well as the
    State and locals, and I do think that they have some incredible
    insights to really help Judge Garland when he becomes the
    Attorney General to figure out how to right the ship.
        Senator Whitehouse. Yes, I will agree with you, Ms.
    Bucella, that there is something that I think binds most
    graduates of the Department together, a sense of shared values,
    a sense of shared commitment, a sense of appreciation at the
    experience of having been allowed to work in such a remarkable
    place. And I think that does provide a pool of resources and of
    good will and of experience that any Attorney General can draw
    on. And one of the things that we have noticed, particularly
    when things were blowing up in the Bush administration over at
    the Department of Justice, was that that population of the
    alumni of the Department came together in a very bipartisan
    fashion to try to provide helpful remedies to the problems,
    particularly of Attorney General Gonzales. So thank you for
    saying that. I think that is an important community, and
    potentially a bipartisan community as well, to provide good
    advice that will not trigger partisan reactions.
        Thank you so much, Mr. Chairman.
        Chair Durbin. Thank you very much, Senator Whitehouse.
        I want to personally thank the witnesses who have appeared
    today. They have certainly added to the record and our insight
    into not only the nominee but the issues that he will face if
    he is successful in his confirmation quest, and I hope that he
    will be. I am heartened by Senator Tillis' volunteered
    comments, and I hope they are an indication of strong
    bipartisan support for a nominee who certainly deserves it.
        I want to say for those who are watching this hearing, a
    lot of work goes into it. The Senators, of course, do their
    job, but there are a lot of hardworking and dedicated staff who
    back them up and make them look glorious every single day.
        I want to thank, first of all, the Majority nomination
    staff who spent countless hours preparing materials for me and
    the other Democratic Members: Chief Nominations Counsel Phil
    Brest; Counsels Sarah Bauer, Gabe Kader, and Joe Charlet;
    Nominations Clerk Maggie Hopkins; and Research Assistant Anna
    Shepherd.
        I would also like to thank the following staff for their
    work behind the scenes in the logistics department to help this
    hearing go smoothly: Chief Clerk Heather Vachon, Deputy Chief
    Clerk Michelle Heller, Assistant Clerk Bentley Olson, Michael
    Perkins, Katya Kazmin, Audrey Huynh, Bryan Palmer, and Chesney
    Mallory.
        Let me also give a nod--and I am sure that Senator Grassley
    joins in this as well--to thank the Minority staff for their
    work and cooperation: Chief Minority Nominations Counsel Mike
    Fragoso, Senior Counsel Lauren Mehler, and the rest of the
    Minority nominations team.
        So let me say at this point that we are concluding this
    hearing, and as a reminder, written questions for Judge Garland
    are due at 5 p.m. tomorrow, February 24th. As agreed upon by
    both sides, we will proceed to a Committee markup vote on Judge
    Garland's nomination on Monday, March 1st.
        I thank all of my colleagues, but especially Senator
    Grassley. We, as I said at the outset, have had a long-term
    friendship which I am careful to protect as much as possible.
    He is a good man and an honorable person, and I have enjoyed
    working with him over the years.
        And with that good news, the hearing stands adjourned.
        [Whereupon, at 11:28 a.m., the hearing was adjourned.]
        [Additional material submitted for the record for Day 1 and
    for Day 2 follows.]

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