[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
         

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                    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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