[Senate Hearing 117-493]
[From the U.S. Government Publishing Office]
S. Hrg. 117-493
CONFIRMATION HEARING
ON THE NOMINATION OF
HON. MERRICK BRIAN GARLAND
TO BE ATTORNEY GENERAL
OF THE UNITED STATES
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 22 and 23, 2021
__________
Serial No. J-117-1
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
48-356 PDF WASHINGTON : 2023
COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa,
DIANNE FEINSTEIN, California Ranking Member
SHELDON WHITEHOUSE, Rhode Island LINDSEY O. GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE K. HIRONO, Hawaii BEN SASSE, Nebraska
CORY A. BOOKER, New Jersey JOSH HAWLEY, Missouri
ALEX PADILLA, California TOM COTTON, Arkansas
JON OSSOFF, Georgia JOHN KENNEDY, Louisiana
THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Chief Counsel and Staff Director
Kolan L. Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
February 22, 2021, 9:30 a.m., and February 23, 2021, 10:00 a.m.
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois:
February 22, 2021, opening statement......................... 1
February 23, 2021, opening statement......................... 95
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa:
February 22, 2021, opening statement......................... 5
February 23, 2021, opening statement......................... 96
INTRODUCERS
Van Hollen, Hon. Christopher, a U.S. Senator from the State of
Maryland....................................................... 8
Duckworth, Hon. Tammy, a U.S. Senator from the State of Illinois. 9
prepared statement........................................... 122
STATEMENTS OF THE NOMINEE
Witness List..................................................... 121
Garland, Hon. Merrick Brian, Nominee to serve as Attorney General
of the United States:
February 22, 2021, statement................................. 10
prepared statement........................................... 125
questionnaire and biographical information................... 128
WITNESSES
Blackman, Josh, professor of law, South Texas College of Law,
Houston, Texas................................................. 98
prepared statement........................................... 235
Bucella, Donna A., former director, Executive Office for United
States Attorneys, and former U.S. Attorney for the Middle
District of Florida, Irving, Texas............................. 103
prepared statement........................................... 238
Henderson, Wade, interim president and chief executive officer,
The Leadership Conference on Civil and Human Rights,
Washington, DC................................................. 97
prepared statement........................................... 242
Starr, Hon. Ken, Judge, U.S. Court of Appeals for the District of
Columbia Circuit, retired, Waco, Texas......................... 101
prepared statement........................................... 248
Tucker, Andrea, parent of students at J.O. Wilson Elementary
School, Washington, DC......................................... 100
prepared statement........................................... 253
QUESTIONS
Questions submitted to Hon. Merrick Brian Garland by:
Senator Blackburn............................................ 375
Senator Cornyn............................................... 280
Senator Cotton............................................... 332
Senator Cruz................................................. 299
Senator Durbin............................................... 255
Senator Graham............................................... 278
Senator Grassley............................................. 258
Senator Hawley............................................... 328
Senator Kennedy.............................................. 342
Senator Lee.................................................. 284
Senator Ossoff............................................... 277
Senator Sasse................................................ 326
Senator Tillis............................................... 343
ANSWERS
Responses of Hon. Merrick Brian Garland to questions submitted
by:
Senator Blackburn............................................ 533
Senator Cornyn............................................... 417
Senator Cotton............................................... 494
Senator Cruz................................................. 447
Senator Durbin............................................... 378
Senator Graham............................................... 415
Senator Grassley............................................. 383
Senator Hawley............................................... 490
Senator Kennedy.............................................. 512
Senator Lee.................................................. 424
Senator Ossoff............................................... 382
Senator Sasse................................................ 485
Senator Tillis............................................... 514
LETTERS RECEIVED BY THE COMMITTEE REGARDING THE NOMINATION OF HON.
MERRICK BRIAN GARLAND TO BE ATTORNEY GENERAL OF THE UNITED STATES
Adams, Aileen, Esq., Los Angeles, California, et al.,
professional and personal advocates for victims and survivors
of crime at national, State, Tribal, and local levels of
system- and community-based victim service agencies and
organizations; January 28, 2021................................ 568
Alaska Wilderness League, Washington, DC, and Anchorage, Alaska,
et al., members of 20 environmental groups; February 21, 2021.. 589
Alliance for Justice (AFJ), Nan Aron, president, Washington, DC;
February 21, 2021.............................................. 587
American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO), William Samuel, director, government
affairs, Washington, DC; March 1, 2021......................... 622
Constitutional Accountability Center (CAC), Elizabeth B. Wydra,
president, Washington, DC; February 24, 2021................... 605
Everytown for Gun Safety, John Feinblatt, president, New York,
New York; February 23, 2021.................................... 597
Federal Law Enforcement Officers Association (FLEOA), Larry
Cosme, national president, Washington, DC; February 17, 2021... 572
Fraternal Order of Police (FOP), Patrick Yoes, president,
National Fraternal Order of Police, Washington, DC; February
10, 2021....................................................... 547
Freeh, Hon Louis J., former Director, Federal Bureau of
Investigation, and former Judge, U.S. District Court for the
Southern District of New York; February 19, 2021............... 592
Gonzales, Hon. Alberto R., former U.S. Attorney General, Hon.
Eric Holder, former U.S. Attorney General, and Hon. Loretta E.
Lynch, former U.S. Attorney General, et al., former U.S.
Attorneys and other senior U.S. Department of Justice
officials; March 1, 2021....................................... 624
International Association of Chiefs of Police (IACP), Cynthia
Renaud, chief, retired, and president, Alexandria, Virginia;
February 3, 2020............................................... 544
James, Letitia, Attorney General, State of New York, New York,
New York, et al., current State Attorneys General charged with
defending the rights of their States and their citizens and
committed to protecting and upholding the rule of law; February
25, 2021....................................................... 614
Keating, Hon. Frank, former Governor, State of Oklahoma, and
former U.S. Associate Attorney General; February 21, 2021...... 585
Kennedy, Mrs. Robert F. et al., relatives of the late Hon. Robert
F. Kennedy, a former U.S. Attorney General and former U.S.
Senator from the State of New York............................. 612
Krinsky, Miriam, executive director, Fair and Just Prosecution
(FJP), New York, New York; February 23, 2021................... 598
Leadership Conference on Civil and Human Rights, The, Washington,
DC, et al., organizations committed to promoting and protecting
the civil and human rights of all persons in the United States;
February 25, 2021.............................................. 576
Levi, Hon. David F., former Chief Judge, U.S. District Court for
the Eastern District of California, and Levi Family Professor
of Law and director, Bolch Judicial Institute, Duke Law School,
Durham, North Carolina; February 22, 2021...................... 581
Levi, Hon. John G., board chair, Legal Services Corporation,
Chicago, Illinois; February 22, 2021........................... 583
Lewis, Hon. Timothy K., Judge, retired, U.S. Court of Appeals for
the Third Circuit and U.S. District Court for the Western
District of Pennsylvania, et al., former Federal judges
appointed by Republican and by Democrat Presidents and former
trial attorneys and supervisors of the U.S. Department of
Justice; February 19, 2021..................................... 557
Major County Sheriffs of America (MCSA), Sheriff Peter
Koutoujian, president, Alexandria, Virginia.................... 594
Mosby, Marilyn J., State's Attorney for Baltimore City,
Baltimore, Maryland, et al., local prosecutors committed to
criminal justice reform, police reform, and racial justice;
February 3, 2021............................................... 548
National Action Network (NAN), Rev. Al Sharpton, founder and
president, Harlem, New York, and Ebonie Riley, bureau chief,
Washington, DC; February 12, 2021.............................. 555
National Association of Drug Court Professionals (NADCP), Carson
Fox, chief executive officer, and the divisions of National
Drug Court Institute, National Center for DWI Courts, and
Justice For Vets, Alexandria, Virginia; February 10, 2021...... 551
National Coalition on Black Civic Participation (NCBCP) and Black
Women's Roundtable, Melanie L. Campbell, president and chief
executive officer, NCBCP, and convener, Black Women's
Roundtable, Washington, DC; February 21, 2021.................. 620
National Council of Negro Women (NCNW), Johnnetta Betsch Cole,
Ph.D., national chair and seventh president, Washington, DC;
February 11, 2021.............................................. 573
National District Attorneys Association (NDAA), Nancy G. Parr,
president, Arlington, Virginia; January 8, 2021................ 566
National Education Association (NEA), Marc Egan, director,
government relations, Washington, DC; March 8, 2021............ 633
National Organization of Black Law Enforcement Executives
(NOBLE), Dwayne A. Crawford, executive director, Alexandria,
Virginia; February 16, 2021.................................... 554
National Sheriffs' Association (NSA), Alexandria, Virginia;
Sheriff David Mahoney, Dane County, Wisconsin, president, NSA;
and Sheriff Vernon Stanforth, Fayette County, Ohio, chairman,
Government Affairs Committee, NSA; letter to President Joseph
R. Biden; February 19, 2021.................................... 575
National Urban League, Marc H. Morial, president and chief
executive officer, New York, New York; February 11, 2021....... 552
Newtown Action Alliance, families and survivors directly impacted
by gun violence, Newtown, Connecticut; February 24, 2021....... 607
People For the American Way (PFAW), Marge Baker, executive vice
president for policy and program, Washington, DC; February 23,
2021........................................................... 600
Taxpayers Against Fraud (TAF), Joseph E.B. ``Jeb'' White, Esq.,
president and chief executive officer, Washington, DC; February
4, 2021........................................................ 545
Terwilliger, Hon. George J., III, former U.S. Deputy Attorney
General and former Acting U.S. Attorney General, Washington,
DC; January 21, 2021........................................... 536
Ujima, Inc.: The National Center on Violence Against Women in the
Black Community, Karma Cottman, executive director, Washington,
DC; February 22, 2021.......................................... 595
United States Chamber of Commerce, Neil L. Bradley, executive
vice president and chief policy officer, Washington, DC;
February 23, 2021.............................................. 596
U.S. Institute Against Human Trafficking (USIAHT), Kevin Malone,
chairman, Tampa, Florida; February 22, 2021.................... 604
Woods, Grant, former Attorney General of Arizona, et al., former
State Attorneys General from across the United States regarding
U.S. Department of Justice nominees; February 1, 2021.......... 538
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
American Civil Liberties Union (ACLU), Cynthia W. Roseberry,
deputy director for policy, Justice Division, New York, New
York, correspondence via email, February 18, 2021, letter...... 634
Blackman, Josh, ``Government by Blog Post,'' FIU Law Review,
Florida International University College of Law, Vol. 11, No. 2
(Spring 2016), pp. 389-416, article............................ 641
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland, February 22, 2021, prepared statement................ 669
Sciutto, Jim, ``The Capitol rioters speak just like the Islamist
terrorists I reported on: People who feel robbed of their pride
and purpose can become dangerous,'' The Washington Post,
February 19, 2021, perspective................................. 672
CONFIRMATION HEARING
ON THE NOMINATION OF
HON. MERRICK BRIAN GARLAND
TO BE ATTORNEY GENERAL
OF THE UNITED STATES
----------
MONDAY, FEBRUARY 22, 2021
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m., in
Room 216, Hart Senate Office Building, Hon. Richard J. Durbin,
Chair of the Committee, presiding.
Present: Senators Durbin [presiding], Leahy, Feinstein,
Whitehouse, Klobuchar, Coons, Blumenthal, Hirono, Booker,
Padilla, Ossoff, Grassley, Graham, Cornyn, Lee, Cruz, Sasse,
Hawley, Cotton, Kennedy, and Blackburn.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. This hearing will come to order.
Today the Senate Judiciary Committee will hold a hearing on
the nomination of Judge Merrick Garland to be the 86th Attorney
General of the United States. Judge Garland, I want to welcome
you and your family. I want to welcome you back to the Senate
Judiciary Committee. I know this return trip has been a long
time in planning, and you are here finally.
This will be the Judiciary Committee's first hearing of the
117th Congress. Before I turn to my opening remarks, I would
like to just take a few minutes to make some acknowledgements.
I want to welcome my friend, Senator Chuck Grassley, as the
Committee's Ranking Member. When I first came on the Senate
Judiciary Committee 24 years ago, I was the Ranking Member on a
Subcommittee with you, and we dealt with the issue of
bankruptcy. Now, Illinois and Iowa sit next to each other, and
so did Durbin and Grassley. We have our differences, but
Senator Grassley and I have worked together on important
legislation over the years, most recently on criminal justice
and sentencing reform. I look forward to continuing that work
in this Congress.
I want to recognize the outgoing Chair and Ranking Member:
Senator Lindsey Graham, who will join us remotely this morning,
and Senator Dianne Feinstein.
Senator Graham, as is true of Senator Grassley, while we do
not always agree, has always been a welcome partner on many
issues, including one of the most challenging issues,
immigration.
Senator Feinstein I want to commend for leading the
Committee Democrats with grace and resolve over the past 4
years. I know she will continue to be an important voice on
this Committee on a host of issues, including in her new
capacity as the Chair of the Human Rights and Law Subcommittee,
which I was proud to chair in past Congresses.
I also want to welcome our new Committee Members who will
either be here in person--I see one in person and one probably
remote: Senators Padilla and Ossoff on the Democratic side,
Senator Cotton on the Republican side. I look forward to
working with each of you.
There are some historic firsts in the Judiciary Committee
this year.
Senator Padilla, our new Senator from California, will be
chairing the Subcommittee on Immigration, Citizenship, and
Border Safety. I am honored that he is the first Latino Senator
to chair that Subcommittee, and we look forward to his
leadership.
Senator Cory Booker of New Jersey will chair the
Subcommittee on Criminal Justice and Counterterrorism. He is
the first Black Senator to chair a Judiciary Subcommittee, and
we could not imagine a better choice at the helm of this
particular Subcommittee.
To all of our other Members who are returning to serve on
the Committee, welcome back.
I want to thank all the Committee Members for agreeing to
hold this Committee hearing and vote on Judge Garland's
nomination. It is a great honor to serve on this Committee. The
Senate established the Judiciary Committee by resolution on
December 10th, 1816, making it among the very first standing
Committees of the Senate. This Committee has seen many
consequential debates and approved many important nominations
and landmark legislation.
In the Committee's history, there has only been one prior
Illinois Senator to serve as Chair, Judge Garland: Lyman
Trumbull, who led the Committee from 1861 to 1872, and during
his term of service was a Democrat, a Republican, a Radical
Republican, and a Democrat again. He was the most bipartisan
Senator you can imagine. His tenure was also distinguished by
passage of historic legislation: the Thirteenth, Fourteenth,
and Fifteenth Amendments to the Constitution, the Freedman's
Bureau Acts of 1865 and 1866, the Civil Rights Act of 1866. The
last of these was introduced by Trumbull and ultimately became
the Nation's first civil rights law.
As Chair, Trumbull saw a Nation torn apart by original
sin--slavery--and widespread violence and injustice that
continued even after the Thirteenth Amendment's passage, as
African Americans throughout the Nation faced racism. Our
Nation is still dealing with the consequences of these
injustices. People of color face systemic racism, and we are
still working to rid this Nation of the horrific legacy of
slavery and Jim Crow. This Committee can make a difference. We
have the jurisdiction and the opportunity to do it through
legislation, oversight, and nominations, including this
nomination of Merrick Garland to serve as our Nation's next
Attorney General.
There have been few moments in history where the role of
Attorney General and the occupant of that post have mattered
more. Judge Garland, should you be confirmed, and I have every
confidence you will be, you will oversee a Justice Department
at an existential moment. After 4 tumultuous years of intrigue,
controversy, and brute political force, the future of the
Department is clearly in the hands of the next Attorney
General. Under Attorney General Sessions and his successor,
Bill Barr, the Justice Department literally became an arm of
the White House, committed to advancing the interests of
President Trump, his family, and his political allies. It came
as little surprise then that the U.S. Department of Justice
became the Trump Department of Justice.
General Barr stated clearly that he believed the Attorney
General was the President's lawyer, not the Nation's, and what
were the results? Too many in the Department's senior roles
cast aside the rule of law. Trump appointees in the Department
sidelined career public servants, from line attorneys to FBI
agents, limited their roles, disregarded their nonpartisan
input, overriding their professional judgment, and falsely
accusing them of being members of the deep state. And the
Department pursued policies of almost unimaginable proportions,
from separating thousands--thousands--of innocent migrant
children from their parents to banning innocent Muslims from
traveling to our shores; from defending and even ordering
violent crackdowns on peaceful protestors, to parroting
baseless lies about voter fraud in the lead-up to the 2020
election.
The misdeeds of the Trump Justice Department brought this
Nation to the brink. In fact, as we learned after President
Biden's inauguration, the senior official in the Trump Justice
Department, Jeffrey Clark, plotted with President Trump for one
final stab at the results of the 2020 election. They were
thwarted at the last minute by Justice Department attorneys who
threatened to resign en masse rather than join their effort.
So, Judge Garland, it is no overstatement to say that your
nomination is one of the most critical in Department history.
When I reflect on it, I am reminded of two previous Attorneys
General, one a Democrat, the other a Republican: Robert
Kennedy, Edward Levi. Kennedy entered office at a time of
political turmoil. Although the Nation had started down the
path toward civil rights, Attorney General Kennedy recognized
that equal rights and equal justice under law were still an
aspiration for too many people of color in the United States.
In June 1963, several years into his tenure as AG, Kennedy
testified before the House Judiciary Committee. He said, ``The
demonstrations of the past few months have only served to point
out what thinking Americans have known for years: that this
country can no longer abide the moral outrage of racial
discrimination.'' He continued: ``If we fail to act promptly
and wisely at this crucial point in our history, the ugly
forces of disorder and violence will surely rise and multiply
throughout the land--and grave doubts will be thrown on the
very premise of American democracy.'' The moral outrage of
racial discrimination remains with us today as do the forces of
disorder and violence, and, tragically, the Justice Department
in the previous administration fanned the flames of
discrimination, but a restored Justice Department, a Department
under new leadership, can, and, I believe, will, meet the
moment.
There are great challenges ahead. The right to vote is
under constant assault by those who wish to suppress the voices
of communities of color. We have a criminal justice system
still in urgent need of reform, and too many Americans, whether
because of race, national origin, disability, sexual
orientation, or gender identity, face inequality in their daily
lives. It is time for the Department of Justice to confront
these realities that unfortunately continue to threaten, as
Robert Kennedy said, the very premise of American democracy.
Judge Garland, when I think of what you face in restoring
integrity and independence to the Justice Department, I also
think another--of another one of your predecessors and fellow
Chicagoan, Edward Levi, who likewise assumed the office at a
time of turmoil. Levi had, of course, been president of the
University of Chicago before his nomination to serve as
Attorney General for President Ford. And when he came before
this Committee for his confirmation in 1975, he was asked about
removing the Justice Department from the ambit of partisan
politics. This is what he said: ``I do not believe that the
administration of justice should be a partisan matter in any
sense, but I do not think that cases should be brought to
reward people or to punish them for partisan reasons.'' He
continued: ``I think it would be a bad thing for the country to
believe that the administration of justice was not evenhanded
because it was in some ways tilted by partisan politics.'' Why
was this question asked? Why was Levi's response so important?
Just 2 years earlier, President Nixon had attempted to use the
Justice Department as his personal law firm, ordering Elliot
Richardson to fire Archibald Cox, the special prosecutor
overseeing Watergate. Richardson rightly refused to fire Cox,
as did his deputy, William Ruckelshaus, and so each of them
were fired in what became known as the Saturday Night Massacre.
Richardson and Ruckelshaus refused to act in a way contrary to
the rule of law. They refused to put partisan politics and the
personal interests of President Nixon above fidelity to the
Constitution and the principle of equal justice for all, even
those who occupy the White House.
In the wake of Nixon's action when the Justice Department
faced a reckoning with the Department's legacy still tarnished
and public confidence shaken, President Gerald Ford turned to
Levi to restore honor, integrity, and independence. Well, Judge
Garland, the Nation now looks to you to do the same. The
public's faith in the Department of Justice has been shaken,
the result of Department leadership consumed with advancing
personal and political interests. In fact, had it not been for
several Justice Department attorneys I mentioned earlier
threatening to resign this January, President Trump might have
gone even further than he did to overturn the election results,
and that raises critical questions this Committee and you must
reckon with. Judge Garland, we are confident we can rebuild the
Department's once-hallowed halls, that you can restore the
faith of the American people in the rule of law and deliver
equal justice.
I want to close by returning to the attempt to overturn the
2020 Presidential election. You probably noticed when you came
to Capitol Hill how it has changed. You have lived most of your
life and I have lived a large part of mine coming to this
Capitol Hill to visit, to work, really to honor the traditions
of these buildings. We now have established a perimeter around
this building. It stretches for blocks in every direction, and
a 10-foot-high fence that walls off this Capitol Building from
the rest of America. At the top of the fence, barbed wire.
Inside the fence, we have not only our loyal police force, but
men and women of the National Guard from all over the United
States, thousands of them still standing guard over this
building.
What a commentary on the current state of America that we
face today, but it is needed. We were here on January 6th. We
lived through it. We were lucky. For most of us, we were not in
direct contact with the mob. Others were and sadly paid a heavy
price for it. For months, President Trump spread falsehoods
about the election and fraudulent voting, and before a single
vote had been cast, he claimed that he can only lose as a
result of fraud. Far too many Americans gave credence to these
unproven, dangerous claims. We know the result. We saw the
attempt to subvert democracy culminating in the events January
6th when this armed mob stormed the Capitol, sought to disrupt
the counting of Electoral College votes, violently targeted
Congress, our colleagues in the House, our families, even the
Vice President's staff, ultimately causing the senseless deaths
of Capitol Police Officers Brian Sicknick and Howard
Liebengood, and D.C. Police Officer Jeffrey Smith.
When you're confirmed, Judge Garland, you, along with the
rest of the Nation, will continue to grapple with the January
6th attacks, but you will be in a unique position with a unique
responsibility. As the Nation's chief law enforcement officer,
you will be tasked with a solemn duty to responsibly
investigate the events of that day, to prosecute all of the
individuals responsible, and to prevent future attacks driven
by hate, inflammatory words, and bizarre conspiracy theories.
You know what it is like. You have been there before. You
have seen domestic terrorism. You led the investigation and
prosecution of the Oklahoma City bombing, and in doing so, made
the Nation safer and bought some measure of peace and healing
to the victims and their families. I am confident that, given
this prior experience, you are up to the task the Department
now faces in the wake of January 6th. In fact, I can think of
few people better suited to do it.
I look forward to hearing your testimony, but at this
point, I will turn to my colleague, Senator Grassley.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Thank you, Senator Durbin.
Welcome to Judge Garland. I am glad that you have been
honored with this appointment to be Attorney General of the
United States. Welcome, the public at large, most of them very
remote, not the large crowds we normally have when we have an
Attorney General nominee come before this Committee.
I have a longer statement that I will put in the record,
and I have still got plenty to say even this morning. I, of
course, congratulate Senator Durbin on his new role as
Chairman. He has already referred to he and I getting
acquainted on the Administrative Oversight Subcommittee and
working on what now is badly needed law when agriculture is in
bad shape, bypassing Chapter 12 agricultural bankruptcy
legislation, and I look forward to working with you in the
future here. And I also want to express my admiration for
Senator Feinstein, the previous Democrat Leader of this
Committee. She and I have worked closely together during the
years that I chaired and she was Ranking Member, and I thank
you for your leadership.
I would also like to say a word about Judge Garland. This
is, of course, Judge Garland's first time appearing before this
Committee since ascending to the Federal bench. I had something
to do with that. After the death of Justice Scalia, my
Republican colleagues and I decided not to hold a hearing on
his nomination; in other words, meaning Judge Garland's
nomination to the Supreme Court, having been nominated by
President Obama. As you recall, it was an election year with a
divided Congress. The position I took was consistent with
previously publish--publicly expressed positions by other
Senators and Democratic Senators previous to that. So, yes, it
is true that I did not give Judge Garland a hearing. I also did
not mischaracterize his record. I did not attack his character.
I did not go through his high school yearbook. I did not make
his wife leave the hearing in tears. I took a position on
hearings, and I stuck to it, and that is it. I admire Judge
Garland's public service. Just because I disagreed with anyone
being nominated did not mean that I had to be disagreeable to
that nominee. Unfortunately, that is not always the way it
works in this town that has great political division.
Judge Garland is here, and we are here to talk about his
nomination to be Attorney General, and I extend a warm welcome
to you, Judge Garland, and your family and friends that are
probably very honored because of your nomination. This, of
course, is a worthy capstone on a storied career that you have
had. Judge Garland is a good pick to lead the Department of
Justice. He has decades of experience as one of the most
respected appellate judges in the country, and, before that,
being a great prosecutor. When the domestic terrorist, Timothy
McVeigh, was executed for his crimes, we had Merrick Garland to
thank for that successful prosecution.
No one doubts that Judge Garland is qualified for his job,
but, of course, an Attorney General is more than just
qualifications. The top law enforcement officer of the United
States must be committed to enforcing the rule of law. As our
former colleague and former Attorney General, John Ashcroft,
likes to say, ``The Department of Justice is the only Cabinet
agency whose name is an ideal.'' It is not the Department of
Law Enforcement, but the Department of Justice. Justice is
equality under the law. There is one law for all Americans
regardless of race, color, creed, or connection. Is Judge
Garland up to that task? I think he is, but today our goal is
to ask him questions to find out.
The Department of Justice has taken important steps to live
up to these ideals expressed by Attorney General Ashcroft, and
I think they have done well in that direction, particularly
over the last 4 years. The Department has undertaken many
successful initiatives to reduce violent crime in all
communities. It has sought to maintain the rule of law by
reforming consent decrees, guidance documents, and ``sue and
settle'' abuse. It has protected our civil liberties, in
particular, defending our religious liberties, and pursuing
Elder Justice. I hope that the Department of Justice continues
these initiatives under you, Judge Garland.
What I do not want is a return to the Obama years. I do not
want an Attorney General who bragged about being a wingman, and
those are his words, to the President. That was Eric Holder
notoriously describing himself. I do not want a Justice
Department that abuses the FISA process to spy on American
citizens. I do not want consent decrees that federalize law
enforcement and cause murder rates to soar. I do not want a
return to catch-and-release on the border. I could come up with
many other examples.
Unfortunately, a lot of what we have seen so far from the
Justice Department is discouraging. They have whiplashed
inducing changes to litigation positions. They are going
through rescinding excellent rule of law memorandums right out
of the gate. President Biden is even reportedly firing nearly
every Senate-confirmed U.S. Attorney regardless of what
investigations they are supervising. That is troubling. That is
why I am especially concerned about the Durham investigation.
Starting January 2017, I began an investigation on how the
Justice Department and the FBI handled Crossfire Hurricane, its
investigation into the Trump campaign and administration.
Simply said, Crossfire Hurricane is a textbook example of what
should not happen during investigations. What the Obama
administration did to the Trump campaign transition and
administration cannot ever happen again. If confirmed, you will
have oversight of Special Counsel Durham's review of Crossfire
Hurricane. When Bill Barr appeared before the Committee for his
nomination hearing, he said, ``It is vitally important that a
Special Counsel be allowed to complete his investigation.'' Of
course, he was referring to then-Special Counsel Mueller's
investigation. Today, you will need to be clear about what your
position will be with regard to Special Counsel Durham. We
should expect the same level of commitment from you to protect
Durham as we expected from Barr to protect Mueller.
So, Judge Garland, I just want to say that I like you, I
respect you, and I think you are a good pick for this job, but
I have a lot of questions about how--about how you are going to
run the Department of Justice.
Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Grassley.
At this time, we will have a formal introduction of Judge
Garland. Two of our colleagues will be doing that. Because of
your State of residence, Senator Chris Van Hollen of Maryland
will be first, and because of your roots, Senator Tammy
Duckworth, my colleague of Illinois, will be second. Both are
joining us by Webex. There will be a statement made by Senator
Cardin placed in the record.
[The prepared statement of Senator Cardin appears as a
submission for the record.]
Chair Durbin. Senator Van Hollen.
INTRODUCTION OF HON. MERRICK BRIAN GARLAND, NOMINEE TO BE
ATTORNEY GENERAL OF THE UNITED STATES, BY HON. CHRISTOPHER VAN
HOLLEN, A U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Van Hollen. Thank you, Mr. Chairman. Let me thank
you, and Ranking Member Grassley, and all of our colleagues on
the Senate Judiciary Committee for being here today. And I am
really grateful for the opportunity to introduce the
President's nominee for Attorney General, Judge Merrick
Garland, who is not only a fellow Marylander, but somebody who
I have known personally for many years. And I know that
President Biden has picked a nominee with impeccable
credentials and an unimpeachable character.
His experience stretches from the halls of the Justice
Department to the Chambers of the U.S. Court of Appeals for the
District of Columbia Circuit, and he embodies the decency, the
impartiality, and the commitment to justice that our Nation
deserves as the Attorney General of the United States. I am
confident that if confirmed, Judge Garland will serve admirably
and faithfully as the next Attorney General, and I am proud to
present him to you and the Committee on behalf of myself, but
also Senator Cardin, who, as you mentioned, Mr. Chairman, is
fully in support of this nomination, but could not join us
because of a scheduling conflict.
The Nation already knows Merrick Garland because of his
Supreme Court nomination and as the former judge at the U.S.
Court of Appeals for the District of Columbia Circuit, where he
earned a reputation as one of our Nation's finest and fairest
jurists. But his tenure on the D.C. Circuit was just the most
recent achievement in a life dedicated to serving the rule of
law. After excelling at law school, Judge Garland clerked for
the Second Circuit Court of Appeals and then for the Supreme
Court. He then rose through the ranks of a prominent law firm
before jumping back into public service, feet first, as a
Federal prosecutor in the U.S. Attorney's Office during the
administration of President George Herbert Walker Bush, and
then later served as the Principal Associate Deputy Attorney
General at the Department of Justice.
As a senior DOJ official, Judge Garland was tasked with
overseeing the case of the Oklahoma City bombing, one of the
deadliest domestic terrorist attacks in American history. It
left 168 Americans dead and hundreds more injured. Merrick
Garland brought a steady hand to an operation that involved
massive amounts of evidence, pressure from the public, and a
large team with diverse skills and backgrounds. With fidelity
to the law, meticulous attention to detail, and unrelenting
focus, Merrick Garland helped bring the bomber, Timothy
McVeigh, to justice. He has called this case the most important
thing he has done in his life.
Mr. Chairman, Ranking Member, and Committee Members, we are
going to need his experience as we once again confront the rise
of domestic terrorism, particularly in the wake of the horrific
events of January 6th. And the next Attorney General must not
only take on the rise of white supremacist and radical militia
groups, but also ensure that justice is rendered equally and
fairly by promoting and ensuring racial equity, rooting out
discrimination in our criminal justice system, addressing
police reform, and ensuring that we do not see a concerted
effort to limit people's, citizens' right to vote in the United
States of America.
As Judge Garland has himself stated, ensuring the rule of
law and making real the promise of equal justice under the law
are ``the great principles upon which the Department of Justice
was founded and for which it must always stand.'' Judge Garland
has spent his career doing both, and I have no doubt he will
honor that tradition as Attorney General. While his
professional experiences have prepared him for this job, it is
his character that makes him right for this moment. Should he
be confirmed, Judge Garland will be charged with restoring
credibility and independence to the Department of Justice,
making it clear that the Department is not the political
instrument of the White House. I know Merrick Garland is up to
the task.
The lengthy list of testimonials speaking to his fairness
and sound judgment span the political spectrum. He is respected
by lawmakers, scholars, and lawyers of every legal persuasion
and political philosophy. And on a personal note, I can attest
to the fact that his brilliance is matched by his kindness. His
many achievements have never gone to his head. He has always
stayed humble and treated everyone with respect. Mr. Chairman,
Ranking Member, Members of the Committee, it is for these
reasons and many more that I am honored to present to you the
President's nominee to serve as the next Attorney General of
the United States, Judge Merrick Garland. Thank you.
Chair Durbin. Thank you, Senator Van Hollen.
And now I am calling on my colleague and friend from
Illinois, Senator Tammy Duckworth.
INTRODUCTION OF HON. MERRICK BRIAN GARLAND, NOMINEE TO BE
ATTORNEY GENERAL OF THE UNITED STATES, BY HON. TAMMY DUCKWORTH,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Duckworth. I thank the Chairman. Thank you so much
for this opportunity to introduce President Biden's nominee to
serve as the next Attorney General of the United States. We in
Illinois also claim Merrick Garland as a son of our State. He
possesses the brilliance and the resilience, the experience and
intellect, the expertise and integrity necessary to serve
effectively as our next Attorney General. I am especially
honored to be here today because I have full confidence in his
capability to lead the Department of Justice in an independent
and impartial manner. And he will defend the civil and
constitutional rights of all Americans, no matter what they
look like, who they love, how they pray, or their disability
status.
Judge Garland hails from our home State of Illinois, Mr.
Chairman. His father ran a small business out of his home, and
his mother directed volunteer services at the Council for
Jewish Elderly in Chicago. After graduating valedictorian at
Niles West High School in Skokie, he won scholarships for both
college and law school. He then graduated from Harvard
University in 1974 and Harvard Law School in 1977. His breadth
of experience stems in part from his time in private practice
and judicial clerkships. He clerked for Judge Henry Friendly on
the Second Circuit and Justice William Brennan on the United
States Supreme Court. However, his commitment to public service
is perhaps even more clearly demonstrated by his successful
tenure at the Department of Justice and his current seat on the
United States Court of Appeals for the District of Columbia
Circuit.
In 1979, Judge Garland joined the DOJ as a special
assistant, and then, after a brief stint in private legal
practice, led the Department as the Principal Associate Deputy
Attorney General in 1997. During his tenure, which spanned both
Republicans and Democratic administrations, he led multiple
high-profile investigations, working on a number of issues,
including criminal, civil, antitrust, appellate, espionage, and
national security measures. He gained valuable experience as a
prosecutor by trying and supervising numerous prosecutions and
appeals. Notably, he played a key role in the prosecution of
the Oklahoma City bombers, as has been previously noted.
Following his career at DOJ, the United States Senate
confirmed his nomination for a lifetime appointment to serve on
the D.C. Circuit. Judge Garland authored hundreds of opinions
that addressed disability rights, criminal justice, and voting
rights, among other issues, issues that affect Americans at
every mile and every corner of this country. As a judge, he
joined a unanimous panel decision that upheld a Department of
Labor regulation requiring contractors to comply with the
Rehabilitation Act of 1973. This decision upheld regulations
that sought to protect employment opportunities for individuals
living with a--with a disability like myself. It is this legacy
of public service that gives me confidence that, if confirmed
to be our Nation's chief law enforcement officer, Judge Garland
will not only modernize and strengthen enforcement of the
Americans with Disabilities Act, but will restore integrity and
lift morale throughout the DOJ.
Judge Garland is ready to defend the constitutional and
civil rights that our Nation so deeply values, and I know he
will make all of us Illinoisans proud as our country's next
Attorney General. Thank you.
[The prepared statement of Senator Duckworth appears as a
submission for the record.]
Chair Durbin. Thank you, Senator Duckworth.
Judge Garland, will you please stand to be sworn?
[Nominee is sworn in.]
Chair Durbin. Thank you.
Before I turn to my questions, I think there is another
element in the program here, your testimony. Let me turn to
Judge Garland.
STATEMENT OF HON. MERRICK BRIAN GARLAND, NOMINEE TO SERVE AS
ATTORNEY GENERAL OF THE UNITED STATES
Judge Garland. Thank you, Mr. Chairman, Mr. Ranking Member,
and Members of the Judiciary Committee. I am honored to appear
before you today as the President's nominee to be the Attorney
General.
I would like first to take this opportunity to introduce
you to my wife, Lynn; my daughters, Jessie and Becky; and my
son-in-law, Xan. I am grateful to them and to my entire
extended family that is watching today on C-SPAN every day of
my life.
The President nominates the Attorney General to be the
lawyer not for any individual, but for the people of the United
States. July 2020 marked the 150th anniversary of the founding
of the Department of Justice, making this a fitting time to
remember the mission of the Attorney General and of the
Department. It is a fitting time to reaffirm that the role of
the Attorney General is to serve the rule of law and to ensure
equal justice under law. And it is a fitting time to recognize
the more than 115,000 career employees of the Department and
its law enforcement agencies, and their commitment to serve the
cause of justice and protect the safety of our communities. If
I am confirmed as Attorney General, it will be the culmination
of a career I have dedicated to ensuring that the laws of our
country are fairly and faithfully enforced and the rights of
all Americans are protected.
Before I became a judge almost 24 years ago, a significant
portion of my professional life was spent at the Justice
Department as a special assistant to Ben Civiletti, the last of
the trio of post-Watergate Attorneys General, as a line
assistant U.S. Attorney, as a supervisor in the Criminal
Division, and, finally, as a senior official in the Department.
Many of the policies that the Justice Department developed
during those years are the foundation for reaffirming the norms
that will ensure that the Department adheres to the rule of
law. These are policies that protect the independence of the
Department from partisan influence in law enforcement, that
strictly regulate communications with the White House, that
establish guidelines for FBI domestic operations and foreign
intelligence collection, that ensure respectful treatment of
the Press, that read the Freedom of Information Act generously,
that respect the professionalism of DOJ's employees, and that
set out principles of Federal prosecution to guide the exercise
of prosecutorial discretion.
In conversations that I have had with many of you before
this hearing, you have asked why I would agree to leave a
lifetime appointment as a judge. I have told you that I love
being a judge, but I have also told you that this is an
important moment for me to step forward because of my deep
respect for the Department of Justice and for its critical role
of ensuring the rule of law.
Celebrating DOJ's 150th year reminds us of the origins of
the Department, which was founded during Reconstruction in the
aftermath of the Civil War, to secure the civil rights that
were promised in the Thirteenth, Fourteenth, and Fifteenth
Amendments. The first Attorney General appointed by President
Grant to head the new Department led it in a concerted battle
to protect Black voting rights from the violence of white
extremists, successfully prosecuting hundreds of cases against
white supremacist members of the Ku Klux Klan. Almost a century
later, the Civil Rights Act of 1957 created the Department's
Civil Rights Division, with the mission to uphold the civil and
constitutional rights of all Americans, particularly some of
the most vulnerable members of our society.
That mission on the website of the Department's Civil
Rights Division remains urgent because we do not yet have equal
justice. Communities of color and other minorities still face
discrimination in housing, in education, in employment, and in
the criminal justice system, and they bear the brunt of the
harm caused by the pandemic, pollution, and climate change. One
hundred fifty years after the Department's founding, battling
extremist attacks on our democratic institutions also remains
central to the Department's mission.
From 1995 to 1997, I supervised the prosecution of the
perpetrators of the bombing of the Oklahoma City Federal
Building, who sought to spark a revolution that would topple
the Federal Government. If confirmed, I will supervise the
prosecution of white supremacists and others who stormed the
Capitol on January 6th, a heinous attack that sought to disrupt
a cornerstone of our democracy: the peaceful transfer of power
to a newly elected Government.
And that critical work is but a part of the broad scope of
the Department's responsibilities. The Justice Department
protects Americans from environmental degradation and the abuse
of market power, from fraud and corruption, from violent crime
and cybercrime, and from drug trafficking and child
exploitation, and it must do all of this without ever taking
its eye off of the risk of another devastating attack by
foreign terrorists. The Attorney General takes an oath to
support and defend the Constitution of the United States
against all enemies, foreign and domestic.
I am mindful of the tremendous responsibility that comes
with this role. As Attorney General, later Supreme Court
Justice Robert Jackson, famously said: ``The prosecutor has
more control over life, liberty, and reputation than any other
person in America. While prosecutors at their best are one of
the beneficent forces in our society, when they act from malice
or other base motives, they are one of the worst.'' Jackson
then went on to say: ``The citizen's safety lies in the
prosecutor who tempers zeal with human kindness, who seeks
truth and not victims, who serves the law and not factional
purposes, and who approaches the task with humility.'' That was
the prosecutor I tried to be during my prior service in the
Department of Justice. That is the spirit I tried to bring to
my tenure as a Federal judge. And if confirmed, I promise to do
my best to live up to that ideal as Attorney General. Thank
you.
[The prepared statement of Judge Garland appears as a
submission for the record.]
Chair Durbin. Thank you, Judge Garland.
Before I turn to my questions, I want to lay out a few
mechanics for the hearing. Senators will have 8 minutes in the
first round of questions, followed by a 5-minute second round,
and I ask Members to do their best to stay within their
allotted of time. We will take a break every once in a while
for 10 minutes. I am hoping the first will be sometime near 11.
At about 12:15 or 12:30, we will break for lunch for 30
minutes. I beg you to stick with that schedule if you can and
be back in time so that we can keep the hearing moving along.
So let me at this point turn to questions.
You were sent to Oklahoma City in 1995. What happened there
was the deadliest act of homegrown domestic terrorism in modern
American history. A hundred and sixty-eight people had been
killed, including 19 children. Hundreds were injured. You were
supervising the prosecution of Timothy McVeigh and Terry
Nichols, who were accused of being complicit in leading that
destruction. Now, if you are confirmed as Attorney General,
which I believe you will be, you will face what is known as the
biggest, most complex investigation in Justice Department
history, and that is the investigation around the events of
January 6th. Two hundred and thirty have been arrested so far.
Some 500 are under investigation. We know that the death of at
least one police officer is one of the major elements in this
investigation.
I would like to ask you to reflect on two things. What is
going on in America? Was Oklahoma City just a one-off unrelated
to what happened here? Can you measure, based on what you have
learned so far, what kind of forces are at work to divide and
destroy the American Dream? Second, when it comes to this
prosecution, are there elements that we should consider in
terms of law enforcement to deal with this rising threat to the
American democracy?
Judge Garland. Thank you, Senator. Thank you very much for
the opportunity to address the Committee today. I am grateful
for this opportunity.
I do not think that this is necessarily a one-off. FBI
Director Wray has indicated that the threat of domestic
terrorism, and particularly of white supremacist extremists, is
his number one concern in this area. This is coupled with an
enormous rise in hate crimes over the past few years. There is
a line from Oklahoma City, and there is another line from
Oklahoma City all the way back to the experiences that I
mentioned in my opening with respect to the battles of the
original Justice Department against the Ku Klux Klan. We must
do everything in the power of the Justice Department to prevent
this kind of interference with the policies of American
democratic institutions, and I plan, if you now confirm me for
Attorney General, to do everything in my power to ensure that
we are protected.
Chair Durbin. Judge Garland, it goes without saying, but we
ought to make it a record, we abhor violence whether it comes
from the right or left, whatever its source. It has no place in
responsible constitutional dialogue in America. Currently,
though, we are faced with elements that were not there 25 years
ago in Oklahoma City: a proliferation of weapons; second,
social media and the internet which serves as a gathering place
for many of these domestic terrorists. What are your thoughts
about how we should deal with those elements from the law
enforcement viewpoint?
Judge Garland. Well, Mr. Chairman, I certainly agree that
we are facing a more dangerous period than we faced in Oklahoma
City, than at that time. From what I have seen, and I have no
inside information about how the Department is developing its
work, it looks like an extremely aggressive and perfectly
appropriate beginning to an investigation all across the
country in the same way our original Oklahoma City
investigation was, but many times more. I do not yet know what
additional resources would be required by the Department, but I
can assure you that this will be my first priority and my first
briefing when I return to the Department, if I am confirmed.
Chair Durbin. Judge Garland, several years ago, I went to
an immigration court hearing in downtown Chicago. It was in a
high-rise Loop building. I met the immigration court judge. She
had been on the job almost 20 years and seemed like a very
conscientious and fair person. She asked me to stay for the
docket call, particularly for the first clients on the docket.
The first clients on the docket were a 4-year-old girl named
Marta. When the judge asked that all of the people in the
courtroom be seated, she had to be helped into the chair. It
was too tall for her to get into. She was handed a stuffed
animal to hold during the hearing. At the same table was a
young boy with the unlikely name Hamilton, who was given a
little Matchbox car, which he played with on top of the table.
He was 6 years old. They were the victims of the Zero Tolerance
Policy. We remember it well. Thousands of children were
forcibly removed from their parents, separated and many times
lost in the bureaucracy.
Some have incorrectly stated that that administration
policy by the Trump administration was just a continuation of
Obama-era policy. That is not true. The Obama administration
did not have policies that resulted in the mass separation of
parents and children, and on rare occasion separations
occurred, this was due to suspicion of trafficking or fraud,
not because of an intentional, cruel policy to separate
children.
The Justice Department's Inspector General conducted an
investigation of the Zero Tolerance Policy and noted that the
Justice Department was ``the driving force'' in that policy.
There are still a lot that we do not know about that policy and
the accountability for the officials who were responsible for
it, so let me ask you this. This Committee is going to hold
oversight hearings to get to the bottom of it. Will you commit
to cooperate with those investigations?
Judge Garland. Senator, I think the oversight
responsibility of this Committee is one of its very most
important things. It is a duty imposed by the Constitution, and
I greatly respect it. I think that the policy was shameful. I
cannot imagine anything worse than tearing parents from their
children, and we will provide all of the cooperation that we
possibly can.
Chair Durbin. I thank you for that. When it comes to
congressional oversight, this Committee has a role in restoring
independence and integrity to the Justice Department through
oversight hearings. It has a longstanding tradition of holding
annual Justice Department oversight hearings, but sadly, it has
been 3 years since the Attorney General has been called before
this Committee. I pledge that as Chair, I will hold annual DOJ
oversight hearings where Members from both sides of the aisle
can ask important questions of you in that capacity. I do not
want to go into detail, but I would ask you obviously, would
you agree to cooperate in that commitment to oversight hearing?
Judge Garland. Of course, if I am confirmed, I will
certainly cooperate.
Chair Durbin. And when requests are made for information by
Members of the Committee, I hope that I can also have your
commitment to cooperation in providing timely answers.
Judge Garland. Yes, Mr. Chairman, we will be as responsive
as we possibly can. As I said, I have great respect for and
belief in the oversight role of this Committee.
Chair Durbin. Thank you.
Senator Grassley.
Senator Grassley. Yes. Since you are a currently sitting
judge, you are bound by the Code of Conduct of U.S. Judges.
Nevertheless, I hope that we can get frank answers from you on
your views. And when we talked last on the phone, you told me
you would get guidance from the Administrative Office on what
you can or cannot say. I assume that you sought that guidance.
If so, what did they advise you?
Judge Garland. Yes, Senator Grassley, I did. And they
advised me just as you and I thought that they would. Canon 3
bars me from commenting on any pending or impending case that
is in any court, but I am free to talk about policy with you.
Senator Grassley. Okay. I am going to go to the Durham
investigation. At Barr's hearing, he stated the following in
regard to Mueller's investigation, ``It is vitally important
that the Special Counsel be allowed to complete his
investigation.'' Also at that same hearing, Senator Feinstein
asked, ``Will you commit to providing Mr. Mueller with the
resources, funds, and time needed to complete his
investigation? '' Attorney General Barr answered Senator
Feinstein with a one word ``yes.''
With respect to Special Counsel Durham's investigation, I
expect that he will be allowed to complete his investigation.
If confirmed, will you commit to providing Special Counsel
Durham with the staff, resources, funds, and time needed to
thoroughly complete the investigation?
Judge Garland. Well, Senator, I do not have any information
about the investigation as I sit here today, and another one of
the very first things I am going to have to do is speak with
Mr. Durham, figure out how his investigation is going. I
understand that he has been permitted to remain in his
position. And sitting here today, I have no reason to think
that that was not the correct decision.
Senator Grassley. Okay. And I suppose that would be an
answer that he would only be removed for cause then? Would that
be your position?
Judge Garland. Well, Senator, I really do have to have an
opportunity to talk with him. I have not had that opportunity.
As I said, I do not have any reason from what I know now, which
is really very little, to make any determination on that
ground. But I do not have any reason to think that he should
not remain in place.
Senator Grassley. If confirmed, would you commit to
publicly releasing Special Counsel Durham's report, just like
Mueller's report was made public?
Judge Garland. So, Senator, I am a great believer in
transparency. I would, though, have to talk with Mr. Durham and
understand the nature of what he has been doing and the nature
of the report. But I am a big--very much committed to
transparency and to explaining Justice Department
decisionmaking.
Senator Grassley. At this point, I am not going to take
exception to the answers you gave me about Durham because I
think you are an honorable person. They are not quite as
explicit as I hoped they would be, like we got from Barr for
the Mueller investigation, but I think you have come close to
satisfying me, but maybe not entirely.
We are in the midst of a polydrug crisis. In addition to
opioids, methamphetamine, and cocaine, fentanyl and fentanyl
analogs are plaguing our country. Increasingly, sophisticated
drug trafficking organizations, both domestic and
internationally, try to skirt the law by changing their
molecular structure. So the Centers for Disease Control has
found that drug overdose deaths rose to their highest level
ever measured during the pandemic, with the overall jump in
deaths being driven most substantially by drugs like fentanyl.
We must stop this fentanyl substance from entering our
neighborhoods and killing thousands of Americans. So my
question is, as you lead the Justice Department, having
oversight over the Drug Enforcement Administration within that
Department, and they will be addressing the spread of fentanyl
analogs and related substances by pushing for continued class-
wide prohibition of fentanyl.
So I did not quite make my question clear. Would you lead
the Justice Department in pushing for continued class-wide
prohibition of fentanyl analogs?
Judge Garland. Senator, I am familiar with this problem.
One of my roles as the Chief Judge of the D.C. Circuit was to
serve on the Pretrial Services Committee--the committee for the
Pretrial Services Agency for the District. And we were
constantly advised of the fact that the formula was being
slightly changed constantly, and this was a problem both for
detection as well as for the problem of enforcement.
To be honest, I am no chemist. This is one of the reasons I
ended up being a lawyer instead of a doctor. But I would need
to look at what would be proposed. But I do understand the
scope of this problem, and I am in favor of doing something
either by scheduling or legislation, if I am confirmed, that
would address the problem that you are talking about, which is
an enormous problem for enforcement.
Senator Grassley. I want to go to the death penalty because
we have some people already prosecuted where the death penalty
has been advocated or sought, and one of those is the people
that were involved in the Boston Marathon. So the question, the
Justice Department, again under the Obama administration,
sought and received an appropriate sentence of death. That
sentence is currently being appealed. Will you commit to
defending these sentences on appeal?
Judge Garland. Well, Senator, this--now we are rubbing up
against exactly the problem that you asked me about in the
beginning. These are pending cases, and as a sitting judge, the
Canons bar me from making comment on pending cases.
Senator Grassley. My last question will have to deal with
the investigation that is underway by some of us in Congress
about Hunter Biden. Have you discussed the case with the
President or anyone else?
And I do not expect you to discuss your private
conversation with the President, but Members of this Committee
always ask judges or other people what your--did you discuss
with the President, for instance, your position on abortion. So
have you discussed this Hunter Biden case with the President or
anyone else?
Judge Garland. I have not. The President made abundantly
clear in every public statement before and after my nomination
that decisions about investigations and prosecutions will be
left to the Justice Department. That was the reason that I was
willing to take on this job, and so the answer to your question
is no.
Senator Grassley. Okay, thank you.
Chair Durbin. Thanks, Senator Grassley.
Senator Leahy would be next, but he is outside of the
jurisdiction of Zoom at the moment. I guess that is
appropriate. And so Senator Feinstein will be recognized.
Senator Feinstein. Thank you very much, Mr. Chairman.
And welcome, Judge. Throughout your career, you have been
praised by people on both sides of the aisle. When you were
nominated to the Supreme Court, President Obama said you were
``someone who would bring a spirit of decency, modesty,
integrity, evenhandedness, and excellence.''
Similarly, Senator Orrin Hatch called you ``a fine man''
who would be a ``moderate choice for the Court.'' Even Carrie
Severino of the conservative Judicial Crisis Network once
called you ``the best scenario we could hope for to bring the
tension and the politics in the city down a notch.''
At a time when America feels more polarized than ever
before, this sort of bipartisanship is truly rare. So I ask
this question. Can all Americans, regardless of their political
affiliation, count on you to faithfully and fairly enforce our
laws?
Judge Garland. Yes, Senator. That is my personality. That
is everything I have done in my career. And that is my vision
for the Justice Department, to dispense the law fairly and
impartially without respect to persons and without respect to
political parties.
Senator Feinstein. Thank you for that statement.
On January 6th, a group of white supremacists launched a
terrorist attack on our Capitol in an attempt to overturn the
results of a democratic election. Their attempt failed and
resulted in at least five fatalities, including a Capitol
Police officer. It also led Federal prosecutors to file over
180 charges and initiate 25 domestic terrorism cases.
So this is not the first time the Justice Department has
been forced to investigate and prosecute white supremacists for
an act of terrorism. You received high praise for investigating
and supervising the prosecution of the Oklahoma City bombing
perpetrators in 1995. So here is the question. What steps will
you take to ensure that the perpetrators of the attack on our
Capitol are brought to justice?
Judge Garland. Senator, I think this was the most heinous
attack on the democratic processes that I have ever seen and
one that I never expected to see in my lifetime. One of the
very first things I will do is get a briefing on the progress
of this investigation. I intend to give the career prosecutors
who are working on this matter 24/7 all of the resources they
could possibly require to do this, and at the same time, I
intend to make sure that we look more broadly to look at where
this is coming from, what other groups there might be that
could raise the same problem in the future and that we protect
the American people.
And I know that the FBI Director has made the same
commitment.
Senator Feinstein. Thank you for that answer.
Over the last 4 years, the independence of the Attorney
General has been repeatedly attacked. For example, President
Trump once told The New York Times, ``I have the absolute right
to do what I want to do with the Justice Department.''
Do you believe that, in fact, the President does have the
absolute right to do what he wants with the Justice Department?
Judge Garland. The President is constrained by the
Constitution, as are all Government officials. The issue here
for us are the set of norms and standards to which this
President, President Biden, has agreed, that he will not
interfere with the Justice Department with respect to its
prosecutions and investigations. Those decisions will be made
by the Department itself and by--led by the Attorney General,
and that they will be without respect to partisanship, without
respect to the power of the perpetrator or the lack of power,
without respect to the influence of the perpetrator or the lack
of influence.
In all of those respects, the Department will be
independent. The Department is a part of the executive branch,
and for that reason, on policy matters, we follow the lead of
the President, of the administration, as long as it is
consistent with the law.
And the role of the Department is to advise the President
and the administration and the other agencies about what is
consistent with the law. That is our obligation, and we will do
so objectively, based only on our reading of the law.
Senator Feinstein. Well, thank you for that. I think you
have laid it out clearly and directly, and it is very much
appreciated.
If the President's interest and the public's interest are
in conflict, which interest does the Attorney General
represent?
Judge Garland. The Attorney General represents the public
interest, particularly and specifically as defined by the
Constitution and the statutes of the United States.
Senator Feinstein. Do you believe that the President has
the authority to order the Attorney General to open or close an
investigation or prosecution?
Judge Garland. This is a hard question of constitutional
law, but I do not expect it to be a question for me. As I just
said to you, the President has promised that those decisions
will only be made by the Attorney General, and that is what I
plan to do. I do not plan to be interfered with by anyone. I
expect the Justice Department will make its own decisions in
this regard.
Senator Feinstein. Well, thank you.
I am going to cease at this time, but I just want to say
that I think you have had a remarkable career. You have done
very special things and always in a very reasonable, sober,
penetrating way. So I just want to say thank you for that.
Judge Garland. I am grateful, Senator. Thank you for that.
Senator Feinstein. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Feinstein.
We hope that Senator Graham, who is next up, is ready.
Senator Graham.
Senator Graham. Can you hear me?
Chair Durbin. We can hear you. You have 8 minutes.
Senator Graham. Great. Yes, sir. Congratulations to you.
And Judge Garland, congratulations on your appointment. I
think you are a very good pick for this job. So I am going to
try to go through as much information as I can.
Do you promise to defend the Portland courthouse against
anarchists? The Federal court building in Portland.
Judge Garland. Any attack on a Federal building or damage
to a Federal building violates Federal statutes, and those who
do it will be prosecuted.
Senator Graham. Okay. When it comes to the people who
attacked the Capitol on January 6th, will you let the Committee
know if you need more resources?
Judge Garland. Yes, absolutely, Senator. I really do think
one of my first jobs is to consult with the prosecutors and the
agents who are investigating that matter and see what resources
they need, and I am eager to have an invitation----
Senator Graham. I think I speak for most----
Judge Garland. I am eager to have an invitation from the
Senate to ask for more resources.
Senator Graham. Sure, please. Thank you.
I think all of us want to prosecute every single person
that deserves to be prosecuted. So whatever you need, I am sure
you will get from this Committee.
Judge Garland. Thank you, Senator.
Senator Graham. Have you read the Horowitz report?
Judge Garland. Senator, in our conversations, you asked me
to read it. It is some 400 pages long, and I asked your
permission to read only the also very long executive summary.
And I have done that.
Senator Graham. So what is your general take?
Judge Garland. Well, my general take is that there were
certainly serious problems with respect to FISA applications,
particularly for Mr. Page, and in the subsequent report to the
way in which FISA applications are documented. The Inspector
General had a substantial number of recommendations for how
this could be fixed and how it must be fixed. I understand that
he submitted those to the FBI Director, and I understand the
FBI Director agreed totally and either has made those changes
or is in the course of making them.
I intend, if I am confirmed, to speak more deeply and
directly with Mr. Horowitz, the Inspector General, about this
and with Director Wray and make sure that these and any other
things that are necessary be done. I am always concerned and I
have always been concerned that we be very careful about FISA.
It is a tool that is very useful and important for
investigations involving foreign agents.
Senator Graham. That is good to hear. So, Clinesmith: Are
you familiar with the fact that a lawyer for the FBI has been
prosecuted, pled guilty to altering information to the FISA
court?
Judge Garland. I did--I did read about that, yes, Senator.
Senator Graham. What would happen to somebody under your
charge that did that? How would you feel about the behavior?
Judge Garland. Well, somebody who makes a false statement
to the FBI or the Inspector General during an investigation has
violated 18 U.S.C. 1001, and I prosecute those myself.
Senator Graham. Do you believe the Durham investigation is
a legitimate investigation?
Judge Garland. Senator, I--I do not know anything really
about the investigation.
Senator Graham. Besides the Horowitz report, do you think
somebody should look at what happened?
Judge Garland. Well, I do think somebody should look at
what happened with respect to those FISAs, absolutely. And I
believe the Inspector General has done that.
Senator Graham. Based on what--your review of the Horowitz
report, do you think Jim Comey was a good FBI Director?
Judge Garland. Senator, I really do not want to get into
analyzing any of the previous Directors and----
Senator Graham. Well, you know, you have been very
political, and appropriately so at times. I just find it pretty
stunning that you can't say, in my opinion, that he was a
terrible FBI Director.
But have you ever been to the border? Have you ever been to
the U.S.-Mexican border?
Judge Garland. No, sir. I have not.
Senator Graham. So I would like you to go--because I just
got back--because I learned that drug cartels are using our
asylum laws against us. They will collect people to sort of
rush the border, and once they are apprehended, they will claim
asylum. And most of these claims, 90 percent are rejected, and
that will take resources away from securing the border and
detecting drugs and protecting the Nation against terrorism.
This is a behavior by the cartels. Will you look into that
practice of using asylum claims by drug cartels to weaken
border security?
Judge Garland. I had not known about this, and I will
certainly look into this problem. I think the drug cartels are
a major menace to our society, and the poison that they put
into our streets is damaging communities of every kind. If they
have a particular----
Senator Graham. Well, I would ask----
Judge Garland. If they have a particular----
Senator Graham. I would ask you to visit the border. I
think you will find patriots there, and when they make
mistakes, they need to be held accountable. But that is one of
the toughest jobs in the country.
Judge Garland. Senator? Senator, I apologize for speaking
over you just now, but there is a little bit of a lag.
Senator Graham. I am sorry.
Judge Garland. It is not your fault. It is a lag in the
technology, I think.
Senator Graham. Okay. Well, I do--I have a southern accent.
So that is----
Judge Garland. It is not the accent. I am familiar with
southern accents.
Senator Graham. It must be the internet. This is the 20th
anniversary of 9/11. Are you concerned that al-Qaeda and ISIS
types are going to try to hit us again?
Judge Garland. I am very concerned that foreign terrorist
organizations will try to hit us again, yes. I do not know
enough at this point about the capabilities of those two, but
it really does not matter which foreign terrorist. The terrible
thing is the attack.
And as I said in my opening statement, with all of the
other things that the Justice Department has to do, it must
always keep its eye on the ball with respect to foreign
terrorist attack. I was sitting in my office, arriving at my
office as the first planes--first plane hit the Trade Center,
and I was sitting in my office and could see smoke rising over
the Pentagon. I can assure you that this is top of mind for me.
Senator Graham. Well, one of the reasons I am very inclined
to support you is I believe what you just said is true. I think
you have a very deep understanding of the threats America
faces. And to my colleagues on the Committee, al-Qaeda has been
diminished. ISIS, quite frankly, has been greatly diminished.
But they are out there, and they are trying to--they will this
year sometime--I hope I am wrong--let us know they are still
there. So it is great to hear the potential future Attorney
General understanding that our Nation is very much still under
threat.
So when it comes to interacting with the Committee, we are
going to be talking about Section 230 reform. What is your
impression of Section 230 liability protection for Big Tech,
and is it time to revisit that topic?
Judge Garland. Senator, I have to be the first to confess
when I have relatively limited information about a subject. I
have had one case on Section 230. It was a very straightforward
application of the law. So, of course, I know what it is. I
also know that many Members of this Committee have ideas for
how it should be amended, and I would have to have an
opportunity, if I am confirmed, to talk with you about that and
to understand all the conflicting concerns and the complexities
of how to alter it, if it is to be altered.
The devil in these sort of things is always in the details,
and you on the Committee know more about this than I do, and I
look forward, if I am confirmed, to having the chance to talk
about it with you.
Senator Graham. Thank you. Congratulations on your
nomination.
Thank you, Mr. Chairman.
Judge Garland. Thank you, Senator.
Chair Durbin. Thank you, Senator Graham.
Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
And welcome, Judge Garland.
Judge Garland. Thank you, Senator.
Senator Whitehouse. People who have been prosecutors
understand that it is not the legislature's business to meddle
around in a prosecution. At the same time, we have oversight
responsibilities. In your view, is it appropriate for Congress
to ask that DOJ give an honest look at investigative matters?
Judge Garland. Senator, I know of your own long experience
as a prosecutor, including some of it which overlapped with
mine, and I am deeply respectful of it and appreciative of it.
When you ask it that way, it is, of course, always possible for
anyone to ask about matters like this.
The Department has to be very careful with respect to the
Congress in the same way it has to be respectful--careful with
respect to the White House, that no investigations get started
just for partisan--and I am not in any way suggesting that that
is what you are asking.
Senator Whitehouse. Correct. No, I agree with you.
Judge Garland. But we have to be careful about this.
Senator Whitehouse. And after the fact, once the
investigation is closed or concluded, is it appropriate in the
exercise of our oversight to assure that, in fact, an honest
look was taken?
Judge Garland. Yes, of course, it is. There are, obviously,
limitations on the Department's ability to speak. They include
everything from grand jury material----
Senator Whitehouse. Rule 6(e) and so forth.
Judge Garland [continuing]. And methods.
Senator Whitehouse. Understood. Understood.
With respect to January 6th, I would like to make sure that
you are willing to look upstream from the actual occupants who
assaulted the building in the same way that in a drug case you
would look upstream from the street dealers to try to find the
kingpins and that you will not rule out investigation of
funders, organizers, ring leaders, or aiders and abettors who
were not present in the Capitol on January 6th.
Judge Garland. Senator----
Senator Whitehouse. Fair question?
Judge Garland. Fair question, and again, your law
enforcement experience is the same as mine. Investigations, you
know, I began as a line assistant U.S. Attorney and was a
supervisor. We begin with the people on the ground, and we work
our way up to those who were involved and further involved. And
we will pursue these leads wherever they take us.
Senator Whitehouse. Thank you.
Judge Garland. That is the job of the prosecution.
Senator Whitehouse. As Chairman Durbin mentioned, there
have been widely reported problems within the Department in the
last 4 years. The Judge Gleeson's brief for Judge Sullivan is
one pretty stunning reproach of the Department. Judicial
decisions out of the D.C. District Court and the Southern
District district court have been pretty damning. And press
reports, too many to mention, have raised concerns about
problems within the Department during that period.
How do you plan to assess the damage that the Department
sustained so that you can go forward with a clear understanding
of what needs repair?
Judge Garland. Well, Senator, I am a strong believer in
following the processes of the Department. That was my
experience in all of my experiences at the Department,
regardless of whatever level I served.
The traditional process is for issues to be raised before
either the Inspector General or the Office of Professional
Responsibility in the areas that you are talking about, that
they conduct investigations--and they certainly seemed
extremely capable of conducting thorough investigations--they
then make recommendations. And that would be the normal
procedures in the Department, and I would expect, if I am
confirmed, that those would be the kind of procedures I would
want to follow.
Senator Whitehouse. Well, I would submit to you that you
may want to take it on more systematically than that, but we
can leave that for a later day.
On this Committee, and particularly on this side of this
Committee, we have experienced more or less a 4-year stonewall
of information from the Department of Justice and from the FBI.
From 2017 to 2020, we had 25 DOJ and FBI witnesses who failed
to answer some or all of the questions for the record that
Senators asked them. Twenty-one answered none of the questions
for the record from either side.
I have sent during the course of those years 28 different
letters on various subjects that went completely unanswered. It
got so bad that Chairman Graham brought the Deputy Attorney
General up to meet with him and me to go through the list and
try to figure out why the hell we were not getting answers and
where the policy came from, the de facto policy of refusing to
answer questions of Senators.
I think we need to understand what happened during that
period, why these questions were not being answered. The base
question, the point of entry is why were these questions not
being answered? Upon whose instructions were these questions
not being answered? Why? What was behind, what was the motive
for refusing to answer these questions?
Once we have cleared that up, then I think we have got to
go through the backlog of questions that the Department refused
to answer. As you know, sometimes Congress asks questions that
are touchy for a department. Somebody may have misbehaved.
There may be wrongful conduct that has taken place.
And I hope you will agree that covering up misconduct is
never an acceptable reason for refusing to answer questions of
Congress.
Judge Garland. Well, I certainly agree that covering up
anything is never an appropriate reason for not answering a
question of Congress. There will be no policy, de facto or
otherwise, if I am confirmed, that would direct the Department
to not be responsive to this Committee and to its Members. I
want the Department I lead to be as responsive as possible and,
at the very least, to explain why, if it cannot answer a
question or cannot answer a letter, why it cannot do so.
Senator Whitehouse. Correct.
Judge Garland. That is the minimum you are entitled to.
Senator Whitehouse. Correct. And I do not want this just
going forward, I want to be able to go back and get answers to
those backlogged questions that were wrongfully refused. Would
you help us make sure that that happens?
Judge Garland. Yes, Senator. As we talked in our
conversation before, I would definitely direct the previous
questions be answered. I only ask you and the other Members of
the Committee, as a matter of resource and priority allocation,
to give us--the Department some sense of the priorities of
which ones still need to be answered and perhaps----
Senator Whitehouse. Correct.
Judge Garland [continuing]. Even in what order.
Senator Whitehouse. We will do that. And last, I have just
a few seconds left, so I will just flag two things.
I think that the Office of Legal Counsel has taken a lot of
hits, from the torture memos to the wiretap memos, to the
Southern District decision to the D.C. Court decision, to its
extremely self-serving and self-propagating view of
Presidential investigations. This is a part of the Department
that I think is in real trouble.
Another role of the Department is the policing and the
intermediation of Executive privilege for an administration,
and I think that is an area that has been in complete collapse.
And I look forward, with my time now expired, to working with
you to figure out what to do about OLC and what to do about the
intermediative role of the Department of Justice when Executive
privilege is asserted.
Judge Garland. Thank you, Senator. I look forward to
speaking with you.
Chair Durbin. Senator Cornyn.
Senator Cornyn. Welcome, Judge. I enjoyed our conversation
the other day. Thank you----
Judge Garland. As did I, thank you.
Senator Cornyn. Thank you for that.
As I told you, my sole criterion for voting for your
confirmation is your pledge to make sure that politics does not
affect your job as Attorney General. And I believe you told me
that you could make that commitment. Is that a commitment you
can make here publicly today?
Judge Garland. Yes, absolutely. I would not have taken this
job if I thought that politics would have any influence over
prosecutions and investigations.
I do want to, just to be clear about--to clarify so as to
not disappoint you. With respect to policies of the
administration, which I assume are driven by politics--although
as a judge, I would not know for sure--it is our obligation to
advance the policies of the Department, as long as they are
consistent with the law. And our evaluation of the law has to
be based only on the law and not politics.
Senator Cornyn. Thank you for that clarification.
I think being Attorney General has got to be the toughest
job in the United States Government because you serve at the
pleasure of the President, but you also have, as you
appropriately point out, obligation to equal justice and
impartial enforcement of the law. If you were asked to do
something that you considered to be in violation of the law or
unethical, would you resign?
Judge Garland. Well the first thing I would do is to tell
the President or whoever else was asking me to do that that it
was unlawful. I do not expect this to happen with this
President, who has made it completely clear, publicly and in
private, that he will not do that. But of course, if I am asked
to do something and an alternative is not accepted, I would
resign. Yes.
Senator Cornyn. Judge Garland, I think one of the biggest
problems that the administration of justice has had here in the
United States for the last--particularly the last couple of
Presidencies--has been the perception that there is a double
standard, one that applies to maybe one political party or
people of wealth, and another one that applies to the opposing
political party or people who do not have the resources in
order to defend themselves against the awesome investigative
and prosecutorial powers of the Department of Justice.
Of course, you are acquainted with the phrase above the
Supreme Court, ``Equal Justice Under Law.'' Do you agree with
me that a double standard, a perception of a double standard of
justice can be a cancer that will eat away at public confidence
in the administration of justice and that commitment to equal
justice?
Judge Garland. Absolutely, Senator. As I have said to many
people, I think probably including yourself, Ed Levi is my
model for the Attorney General. His role was to be sure that
justice was meted out fairly and impartially, without any
special favors for anyone. This is the definition, in my view,
of the rule of law that the powerful and the powerless, one
party and another party, one community in the United States and
another community in the United States, all are treated equally
in the administration of justice.
Senator Cornyn. The Chairman's recitation of things that he
perceives as being inappropriate at the Department of Justice
ended with the Trump--started and ended with the Trump
administration. But let me take you back a little further into
the Biden-Obama administration.
You are familiar with the press conference that James
Comey, the FBI Director, had in July 2016----
Judge Garland. I remember----
Senator Cornyn [continuing]. Where he discussed the
investigation of Hillary Clinton for inappropriate use of her
email server?
Judge Garland. I remember it, Senator, yes.
Senator Cornyn. According to the Justice Department norms
and procedures and rules that you are well acquainted with as a
result of your experience, is that an appropriate step for an
FBI Director to take, to talk about derogatory information in a
case that they say no reasonable prosecutor would pursue?
Judge Garland. Senator, I do not think it is useful for me
to comment on specific matters involving specific former
officials. But I have no problem at all telling you that the
Justice Department's policies make clear that derogatory
comments about subjects, targets, even people who have been
indicted, except for what is in the indictment, are not
appropriate. And if I am confirmed, I will zealously attempt to
re-inculcate that spirit.
When I was speaking to the Press after each court hearing
in Oklahoma City, I was assiduous in making sure that I did not
say anything about the defendants who had just been before the
court and who had done--now we know after conviction--horrible
things, that I would not say anything other than what the
charges had been brought against them and what the judge
reported. And I believe that is an important part of Federal
prosecution.
Senator Cornyn. I know you do not want to comment on Mr.
Comey's actions, but what you have just described strikes me as
diametrically opposed to what he actually did.
Senator Graham asked you if you had read the Horowitz
report on the investigation of Crossfire Hurricane. I
understand that your time has been limited up to this point,
but do you--would you pledge to read all 404 pages of that
report, if you are confirmed?
Judge Garland. I will, Senator. It may take me some time,
but I have a head-start by reading the executive summary. So I
think I should be able to get through it.
Senator Cornyn. Well, I think it is really important that
you do so.
Judge Garland. Okay. I will.
Senator Cornyn. Because of the abuse not only of the FISA
process, where an FBI lawyer lied to the FISA court in order to
get a warrant to spy on an American citizen, but the use of a
counterintelligence investigation against a Presidential
candidate and in the run-up to the election.
Are you familiar with the Steele dossier?
Judge Garland. Only what I read in the newspapers, and I
have to admit that I read only conflicting reports about it in
the papers.
Senator Cornyn. Well, it has been revealed that the sources
for the Steele dossier, which was used in part in order to get
FISA warrants, that the sub-sources could well be--could well
be Russian intelligence officers using that in order to get--as
part of a Russian active measures campaign. Are you familiar
with the practice of the Soviet Union and now the Russian
Federation to use active measures as part of their intelligence
service attacks against the United States?
Judge Garland. So not from my experience either as a judge
or as a prosecutor, but again, from reading media reports. I
know what the words mean, and I have a general idea of what you
are speaking about, yes.
Senator Cornyn. Judge Garland, my time is about up. But I
think we talked about the role of the Judiciary Committee and
authorizing the tools, like Section 702 of the Foreign
Intelligence Surveillance Act, and the importance of preserving
public confidence that those tools will be appropriately used.
And there will be appropriate oversight both at the Department
of Justice and the FBI, as well as the Judiciary Committee and
the Intelligence Committees.
Do you agree with me that abuse of those authorities
jeopardizes the availability of those tools in a way that is
detrimental potentially to the security of the United States?
Judge Garland. Absolutely, Senator. My entire career as a
Justice Department official was aimed at ensuring that we used
FISA only as appropriate under the law as it existed at the
time. It is not only that I am worried about losing a tool that
is essential. It is also that I am worried about transgressing
the constitutional rights of Americans.
Both of those are important, and I have to say probably the
latter is way more important, in my view. We have to be careful
about respecting American citizens' constitutional rights.
Senator Cornyn. Thank you, Judge.
Chair Durbin. Thanks, Senator Cornyn.
Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman.
Congratulations on your new job.
And congratulations to you, Judge Garland, on your
nomination.
Judge Garland. Thank you.
Senator Klobuchar. I listened with much happiness in your
opening remarks when you talked about being a lawyer for the
people, that you want to serve the law and not factional
purposes, and that you used the important adjective ``humble.''
I think we need a little bit more of that in this town. So I
appreciate that.
And I was also glad that you mentioned--when President
Biden nominated you--Attorney General Edward Levi, who taught
an iconic first-year law class at the University of Chicago
that I took. And like Edward Levi, who took office after
Watergate, you will take on the Department of Justice at a
critical time and will have the great task of restoring its
ideals of independence and fidelity to the Constitution and to
the law.
What is the number one thing you want to do to boost morale
in the Department of Justice on Day 1?
Judge Garland. Well, on Day 1, hopefully, if I am
confirmed, I will take an oath in which I say all of the things
that you just said. I want to make clear to the career
prosecutors, the career lawyers, the career employees, the
career agents of the Department that my job is to protect them
from partisan or other improper motives.
I then hope to have an opportunity over the next few months
to visit with as many members of the Justice Department as
possible. In a pandemic, unfortunately, this will have to be
over Zoom. I would much prefer to be able to go down to the
great hall or the cafeteria and mingle with folks and let them
hear what is in my heart about this, but I am afraid that
technology is the only way I am going to be able to do it now.
Senator Klobuchar. Okay, very good. One of the things that
troubled me along these lines was the pardon process that
President Trump undertook, and one study found that 88 percent
of the pardons that he granted had some sort of personal or
political connection to the former President.
What do you think we need to do to restore integrity to the
pardon process? Obviously, it is an important power of the
President. What do you think you can do from the Attorney
General's position?
Judge Garland. Well, Senator, you are right. This is a
power granted by the Constitution to the President. I think the
role of the Justice Department through its pardon attorney is
to provide a careful, individualized examination of the people
who are asking to be pardoned.
The office has a set of very detailed regulations, which
describe when people are appropriate for pardons and when they
are not. It provides an important screen that not only yields
who maybe should be pardoned, but also protects the President
from improper influence.
Senator Klobuchar. Okay. Just a few things I want to ask
quickly because I want to also get to antitrust. You talked to
Senator Graham about resources for domestic terrorism and that
you want to take a look. Do you think you will need additional
authorities, or you want to look at that when you get in there?
I am going to be chairing a hearing tomorrow with the Rules
Committee on what happened at the Capitol and what we need to
do to improve security. Obviously, part of it is prosecuting
the perpetrators.
Judge Garland. Yes. Well, I thank you for that question.
The Department is probably always looking for new tools. But
the first thing we have to do before we look for new tools is
figure out whether the tools we have are sufficient, and that
will be part of this briefing that I want to have to determine
whether the laws, which are quite capable and which were
capable of the charges against McVeigh and Nichols and many
other terrorists over the years, whether they are sufficient.
And then I would be interested in speaking with you and
other Members of the Committee about what other additions might
be made, but I first have to know whether anything more is
necessary.
Senator Klobuchar. Very good. Will you commit to
reinstating Attorney General Holder's 2015 guidelines requiring
the AG to sign off on subpoenas to journalists? Something I
care a lot about as the daughter of a journalist.
Judge Garland. Yes. So these guidelines came out originally
when I was working for Ben Civiletti, and I had the great
pleasure of working on them. This is something that I am deeply
committed to. They have improved, I would say, over the years
as more concerns have arisen. But I would expect to re-up those
guidelines.
I do not believe that they have been rescinded in any way,
though. I believe they are still there.
Senator Klobuchar. No, but I could not really get a
straight answer from Attorney General Sessions or Barr. So we
can talk about this more.
Judge Garland. Well, I hope this is a good answer for you.
Senator Klobuchar. I know you support reforms to police
practices. That is correct?
Judge Garland. Yes.
Senator Klobuchar. Okay, very good. We obviously have a
major bill on that. Conviction integrity units, something that
I think is very important. You support Federal grants for that?
Judge Garland. Oh, yes. Look, I think that convicting
someone who did not commit the crime is one of the most--it is
a risk, of course, of all kinds of law enforcement. But if we
can determine that we have made a mistake, we need very much to
correct it.
And I think that grants for the purpose of supporting
conviction integrity units in district attorney, State's
attorneys offices across the country is a very good idea.
Senator Klobuchar. We share an interest in antitrust law. I
know that you used to teach that to law students, and you have
handled some cases as judge. As Chair of the Competition Policy
and Antitrust Subcommittee, we are going to be doing a lot in
this area, along with my colleague Senator Lee.
Two-thirds of U.S. industries have become more concentrated
between 1997 and 2012. The pandemic has actually made things
even harder on small businesses. I think that we need more
resources. The FTC and the Antitrust Division of DOJ are
literally shadows of what they were when the breakup of AT&T
occurred, and we cannot expect the agencies to do what we need
to do to take on the biggest companies the world has ever known
on the tech side, in addition to other ones, with band-aids and
duct tape.
Senator Grassley and I have a bill to greatly increase the
funding to those divisions and agencies. Would you support
that?
Judge Garland. Well, I appreciate your recognizing that my
first love in law school, as it turns out, was, in fact,
antitrust, and I studied under one of the most famous scholars
and was his research assistant, Phil Areeda. And when I was in
practice, I worked with Bob Pitofsky, another one of the
greatest scholars and the former head or chair of the Federal
Trade Commission. And I did practice antitrust law, including
trying antitrust cases.
I always want to be in a position of saying thank you, yes,
when you ask whether we want more resources. My expectation is,
that is what I would say. But until I am--if and until I am
confirmed, I really cannot evaluate what resources we might
need, but I am happy to work with you on that.
Senator Klobuchar. Will you commit to vigorously enforcing
the antitrust laws?
Judge Garland. Absolutely.
Senator Klobuchar. I believe that we need some changes to
those laws to aid you in doing that, and I hope you will be
open to those. I have a bill called the Competition Antitrust
Law Enforcement Reform Act that I hope you'll look at, changing
some of the standards for mergers and for exclusionary conduct.
I also think that if anything has illustrated the need to look
back at the consolidation in some of these industries, it would
be the lawsuits filed by DOJ and the FTC. Example, Facebook's
acquisitions of Instagram and WhatsApp.
I would suggest you look at Mark Zuckerberg's email where
he talked about purchasing nascent competitors, and I think the
answer to that has got to come from the Justice Department. The
answer, the reply to that email, that this kind of exclusionary
conduct is not the way capitalism works in America, and we have
always had a balance. We have had a balance through Republican
Presidents and Democratic Presidents to say that we believe in
the capitalist system, and we have to make sure we keep
rejuvenating it by allowing smaller competitors to emerge.
That is not happening right now in many areas, and I just
need your commitment that you will take this area of the law
very seriously.
Judge Garland. I take it very seriously and have throughout
my entire career. The Supreme Court has repeatedly referred to
the antitrust law as the charter of American economic liberty,
and I deeply believe that.
Senator Klobuchar. Thank you very much, Judge Garland.
Judge Garland. Thank you.
Chair Durbin. Thanks, Senator Klobuchar.
This was the first test of the new regime. We are going to
take a break now for 10 minutes and resume at 11:20 a.m. for
the much anticipated questioning of Senator Lee.
Judge Garland. Thank you, Mr. Chairman.
[Whereupon the hearing was recessed and reconvened.]
Chair Durbin. Senator Lee.
Senator Lee. Thank you very much, Mr. Chairman.
And thank you, Judge Garland, for being here today. I
appreciated also your kind words about former Attorney General
Ed Levi. I have been a lifelong admirer of his. He truly is an
Attorney General in the grand tradition of that office, and he
is someone my family has known in one way or another for a long
time.
My late father worked for him while he was running the
Civil Division during Ed Levi's time as Attorney General, and I
have had close personal and professional interactions with both
his son, David Levi, a former judge and later law school dean,
and with Ed Levi's grandson, David's son, Will, who served with
me as my Chief Counsel, worked on this Committee for several
years, and later served as Chief of Staff to Attorney General
Barr. So I am a big fan of that family, and I am glad that he
is someone that you look up to.
I want to talk about a few issues today. Let us talk first
for a moment about the Second Amendment and the right to bear
arms. This is going back 15 years or so, but in a case called
Parker v. District of Columbia, a case that later became known
as District of Columbia v. Heller, as I recall, you voted for
rehearing en banc with respect to an opinion striking down that
same ban on handguns within the District of Columbia. And, of
course, later in the same proceedings of the same case, the
Supreme Court struck down the ban.
Can you tell us why you voted the way that you did, why you
voted to give D.C. another chance to defend its ban on handguns
in that case?
Judge Garland. Yes, Senator. As I know you know, because
you were a law clerk yourself, you know that rehearing en banc
is a vote to hear a case. It is not a vote on the merits of the
case. And in my case, for myself, it is never a vote on the
merits. It is a vote to rehear the case.
The panel decision was the first time I think ever a court
of appeals had held the individual right to keep and bear arms,
which you are exactly right, the Supreme Court did uphold in
the end. Every court of appeals had decided to the contrary,
and the issue was plainly one that would require looking at a
deep historical record as to the meaning of the Second
Amendment and the way that it had been applied. I thought this
was an extremely important issue, important enough since it was
the very first time that we should hear it en banc. I was not
the only judge, and other judges, including a judge appointed
by a President of a different party, also voted and for the
same reason, so that we would have an opportunity to hear the
case.
Senator Lee. Thank you. I appreciate that.
Let us talk a little bit about the meaning of the Second
Amendment. How do you view it? And do you agree with Justice
Thomas' analysis in his dissent in the Rogers case that the
Second Amendment right to bear arms certainly includes the
right to carry operable firearms in public for self-defense?
Judge Garland. So my view is totally controlled by the
Heller opinion, and in that case, Justice Scalia held that
there was an individual right to keep and bear arms for self-
defense. In the subsequent McDonald case, the Court said that
was a fundamental right which applied to the States as well. It
is a right, as Justice Scalia said in the opinion, like all
rights, that is subject to some limitations.
The Court has not given us much more to work with at this
point, and I do think, as I said with respect to my vote en
banc, this is a matter that requires careful historical
examination, which I have never done, and I certainly cannot do
sitting here for you. So I do not have an opinion on that
question.
Senator Lee. You have been in a judicial role for the last
20, going on 25 years.
Judge Garland. Yes, sir.
Senator Lee. You will be in a different role if confirmed
to this position, one in which you will have a significant
impact on policy. So let us talk about policy as it relates to
the Second Amendment briefly.
Do you support universal background checks?
Judge Garland. Well, I do think that it is very important
that we be careful that people who are entitled to have guns
get the background check that allows them to have them, and
that those who are not entitled and who we are concerned about
because they are threats, because they are felons, or whatever
reason barred by the law, that we have--that there is an
opportunity to determine that they not be given a gun.
Senator Lee. Do you support banning specific types of guns?
Judge Garland. I am sorry?
Senator Lee. Do you support banning of certain types of
firearms?
Judge Garland. Well, as I am sure you know, the President
is a strong supporter of gun control and has been an advocate
all of his life, his professional life on this question. The
role of the Justice Department is to advance the policy program
of the administration as long as it is consistent with the law.
And as I said, so far we have a little indication from the
Supreme Court as to what this means, but we do not have a
complete indication. And where there is room under the law for
the President's policies to be pursued, then I think the
President is entitled to pursue them.
Senator Lee. What about policies that would support holding
firearms manufacturers liable for damage caused by people using
firearms they produced to commit a crime?
Judge Garland. I do not have a--I believe that the
President may have a position on this question. I have not
thought myself deeply about this. I do not think it raises a
Second Amendment issue itself, the question of the liability
protection, but I have not addressed this in any way, and I
would need to think about this considerably more.
Senator Lee. The other questions I raise potentially
implicate the Second Amendment. That one raises other policy
concerns.
Judge Garland. I understand.
Senator Lee. Let us talk about FISA briefly. Senator Leahy
and I have offered an amendment to reform the FISA process by
strengthening the amicus curiae provisions that are already in
there in existing law, that have been put in there by, among
other provisions, the USA FREEDOM Act, which Senator Leahy and
I got passed through Congress and signed into law by President
Obama in 2015. And our amendments would also require the
Government to disclose relevant exculpatory evidence, both to
the FISA Court and to the amici. This is an amendment that
ended up passing the Senate last year by a bipartisan
supermajority of 77-19.
Do you support reforms to FISA like those I just described
in the Lee-Leahy Amendment?
Judge Garland. So, I think FISA is an extremely important
tool for the Justice Department and the intelligence community
in general to protect the country from foreign agents and
foreign terrorists.
On the other hand, it is extremely important that
everything we do with respect to FISA--and I have felt this way
my entire professional life also--that we do so in accordance
with the law and with respect for the constitutional rights of
citizens.
I do not know very much specifically about your two
proposals. I do know the current rules with respect to amicus,
and I have had the opportunity to discuss those with judges on
the Foreign Intelligence Surveillance Court, and everyone seems
quite happy with the way that process is going. I do not know
what more might be needed. I would have to study that.
Senator Lee. Mr. Chairman, I see my time has expired. I
have got one very brief follow-up. Can I just finish that
question? Thank you.
On this topic of questions related to FISA, I also wanted
to ask you, do you think that the Federal Government ought to
be able to collect American citizens' web-browsing or internet
search history without a search warrant supported by probable
cause?
Judge Garland. I know this is a big issue. I do not--you
know, my experience with FISA comes from a slightly different
era. I had a lot of experience, but it was a very different
era, and I followed this a little bit. I obviously have not had
any cases on it myself. I would have to look at it.
You know, I believe in judicial review, and I am a strong
supporter and respectful of judicial review of orders. But I do
not know what the practicalities of going for a probable cause
warrant in those circumstances would be, if it would be an
emergency, et cetera. And I would be eager to engage with you
and other Members of the Committee who are concerned about this
so that I can understand this problem more fully.
Senator Lee. Thank you very much, Mr. Chairman.
Chair Durbin. Senator Coons.
Senator Coons. Thank you, Chairman Durbin, Ranking Member
Grassley. Judge Garland, welcome.
Judge Garland. Thank you.
Senator Coons. Congratulations on your nomination, and
please convey my thanks to Lynn, to Jessie, to Becky, to your
family for supporting what has been a decades-long career at
the bench and bar as someone dedicated to public service, to
law enforcement, and to upholding the balance between justice
and liberty.
I cannot think of a more urgent task before us than
restoring the people's faith in our institutions and in the
rule of law, and your opening statement, which in part was
dedicated to clarifying your view that the Attorney General
represents the public interest and your enthusiasm for ensuring
that the 115,000 career employees of the Department of Justice
are appropriately sheltered from partisan or political
influence, is very encouraging to me after what I think were
some harrowing moments in the last few years.
As I am sure you know, there are quite a few admirers of
yours who work here on this Committee, some former clerks of
yours who work closely with me, and many who have reassured me
not just of your professional skill and great insights, but
also of your personal decency, kindness and thoughtfulness.
I was struck in reading through your background that you
have spent 20 years quietly as a tutor at an elementary school
here in the District of Columbia, something I think not enough
elected or appointed officials on either the bench or in
Congress do. So thank you for your willingness to continue your
service.
I am from a small town in Delaware which, like many other
cities in America, was torn apart by concerns about racial
justice and inequality, a city that has also struggled with
longstanding challenges with gun violence and with insecurity
and instability in our community. Our Mayor Mike Purzycki, our
Governor John Carney, are doing a great job and working hard to
try and address this and striking the right balance between
protecting our citizens from gun violence, but also developing
an environment where law enforcement is more transparent and
accountable, is going to be one of the core challenges which
you and the Department of Justice will be involved in, in
partnership with State and local law enforcement and with other
elected officials.
In Wilmington and Dover, Delaware, we are rolling out body-
worn cameras for law enforcement officers. Our governor has
committed to having that available for all of our law
enforcement officers by 2025. But it is very expensive. It is
something law enforcement has embraced. It is something that
advocates have embraced.
I am an appropriator for the Department of Justice as well
as a Member of this Committee. Is that something you could
agree to, to be an advocate for the funding and deployment of
body-worn cameras to ensure both accountability and improved
trust between law enforcement and local communities?
Judge Garland. Well, Senator, I am, again, always happy to
accept more resources for the Department of Justice. I do not
know what that might take away from in other areas for the
Department, but I personally think that body cams are a very
important tool both to protect officers and to protect the
citizens. And, you know, just as everyone--well, you are all on
the inside. I was on the outside watching what happened on
January 6th, and the fact that we were able to see exactly what
was happening to the officers and the way in which they were
carrying about their duties in the best way they could is only
possible to be captured because of the body cameras. I think it
is an important tool for accountability, yes, I do.
Senator Coons. Thank you, Your Honor. If you might, I do
think it is important that we increase investment in a variety
of programs. I have long worked for the Victims of Child Abuse
Act. COVID-19 has demonstrated a tragic rise in child abuse,
and this is a critical tool that allows State and local law
enforcement to effectively address child abuse. The Bulletproof
Vest Partnership Program, which has helped save 3,000 officers'
lives, these and other grant programs are things I look forward
to working with you on.
There is also much-needed legislation that will move us
forward in terms of criminal justice reform and protecting
communities from violence. Senator Cornyn and I hope to soon
reintroduce the NICS Denial Notification Act, which just
ensures that State and local law enforcement gets notified when
a person prohibited ``lies and tries.'' They attempt to
purchase a gun. That is something that has been discussed in
previous Congresses on this Committee. We have not made
progress on it. I think we should.
Senator Wicker and I are soon going to reintroduce the
bipartisan Driving for Opportunity Act, which incentivizes
States to stop suspending driver's licenses simply for unpaid
fines and fees. It is a cruel, counterproductive way to take
away people's ability to get to work and ensures people are
trapped in modern-day debt prisons. It is something that has
strong support from law enforcement and civil rights groups,
and I would just be interested in whether you will work with us
here in Congress to move bipartisan bills like these two.
Judge Garland. I am extremely interested, if I am
confirmed, in working with the Members of Congress, and
particularly on bipartisan legislation. I do not know
specifically about those, but each of them has the ring of
something that is very important and quite reasonable.
Senator Coons. Enactable, reasonable, moving the ball
forward are the sorts of things I hope we get to work on.
I will be serving as the Chair of the Subcommittee on
Privacy, Technology, and the Law in this Congress, and I look
forward to working with Senator Sasse, who will serve as
Ranking Member. One of the core things we will be looking at is
how online misinformation is contributing to domestic
terrorism, to division here. You have discussed your own
experience with domestic terrorism cases and your plan to
prioritize this issue. It is something the FBI Director has
said is one of our most pressing threats.
Do you think that DOJ has a role to play in examining the
role of misinformation and incitement online to contributing to
violence and that the DOJ has a role in working to help us
develop reasonable solutions to this challenge?
Judge Garland. Well, again, Senator, I think that every
opportunity the Justice Department has to work with Members of
the Senate, think about how to solve problems and how to craft
legislation, is one that we should take. I do not have in mind
particular legislation in this area. I do think that an
important part of the investigation of violent extremist groups
is following their activities online and getting an idea of
what kind of information and misinformation is being put out. I
look forward to talking more about this with you.
Senator Coons. Well, there are increasing regulatory
schemes both in Europe and in California and other States being
considered, and I look forward to working with you on striking
that appropriate balance between protecting data privacy,
protecting individual liberty, but also protecting the
competitiveness of the United States and globally making sure
that we are pushing back on digital authoritarianism.
Last, I am glad to see the Department is prosecuting--I
think there are 235 charges brought so far--against rioters who
invaded the Capitol and attacked our democracy on January 6th.
I have supported calls for a 9/11-style independent commission
to investigate the bigger picture of what caused this and what
we might learn from it.
Do you think an independent commission of that style would
help complement the Department's work and help the American
people better understand the root causes of that riot, that
incident, and then better help us both protect the Capitol and
those of us who serve here but, more importantly, protect the
underpinnings of our democracy?
Judge Garland. Well, Senator, I do think the 9/11
Commission was very useful and very helpful in understanding
what happened then, and, of course, the Congress has full
authority to conduct this kind of oversight investigation or to
set up an independent commission.
The only thing that I would ask, if I were confirmed, is
that care be taken that it not--that the commission's
investigation not interfere with our ability to prosecute
individuals and entities that caused the Capitol--the storming
of the Capitol. And as you well know, this is a very sensitive
issue about disclosing operations which are still in progress,
disclosing our sources and methods, and allowing people to
testify in a way that then makes it impossible to prosecute
them.
So, with those caveats, I certainly could not object to
anything that the Congress would want to do in this regard.
Senator Coons. Understood. Thank you, Judge. I am
encouraged by the broad bipartisan support you have already
garnered from this Committee and publicly, and I look forward
to supporting your confirmation.
Judge Garland. Thank you very much, Senator. I appreciate
it.
Senator Coons. Thank you.
Chair Durbin. Thank you, Senator Coons.
Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman.
Judge Garland, welcome.
Judge Garland. Thank you, Senator.
Senator Cruz. Congratulations on your nomination.
Judge Garland. Thank you.
Senator Cruz. In two-plus decades on the court, you have
built a reputation for integrity and for setting aside partisan
interests in following the law. The job to which you have been
appointed is a very different job, and as I look back over the
8 years of the Obama-Biden Justice Department, in my view the
most problematic aspect of that tenure was that the Department
of Justice was politicized and weaponized in a way that was
directly contrary to over a century of tradition of the
Department of Justice of being apolitical and not a partisan
tool to target your opponents.
So it is very much my hope, if you are confirmed as
Attorney General, that you will bring that reputation for
integrity to the Department of Justice and demonstrate a
willingness to stand up for what will be inevitable political
pressure to once again politicize the Department of Justice and
use it as a tool to attack the political opponents of the
current administration.
Eric Holder, before he was nominated as Attorney General,
had likewise built a reputation as being relatively nonpartisan
and a prosecutor with integrity, and, unfortunately, his tenure
as Attorney General did enormous damage to that reputation. As
was previously discussed, Eric Holder described his role as
Attorney General as being the wingman for President Obama. Am I
right in assuming you do not view your role as Attorney General
as being Joe Biden's wingman?
Judge Garland. Senator, as I said, I do not want to comment
on any individual's conduct, any of my predecessors' or FBI
Directors' conduct in any way. But I can assure you I do not
regard myself as anything other than the lawyer for the people
of the United States. I am not the President's lawyer. I am the
United States' lawyer, and I will do everything in my power,
which I believe is considerable, to fend off any effort by
anyone to make prosecutions or investigations partisan or
political in any way. My job is to protect the Department of
Justice and its employees in going about their job and doing
the right thing according to the facts and the law.
Senator Cruz. Under the Obama administration, the IRS
targeted the political opponents of the President. It targeted
conservatives for their speech. It targeted pro-Israel groups.
It targeted Tea Party groups. It targeted individuals perceived
to be on the opposite political side as the administration.
Will you commit as Attorney General that you will not allow
the Department of Justice to be used to target those who are
perceived as political opponents because they are political
opponents?
Judge Garland. Absolutely, I will not.
Senator Cruz. Also under the Obama administration,
Operation Chokepoint was used to pressure lawful organizations,
lawful institutions, institutions, for example, that sell
firearms, to constrain their lawful activity and to use
regulatory authority to abuse and force them to comply with the
administration's stated policies.
Do you believe it is appropriate for the administration to
use regulatory pressure to force lawful behavior to stop?
Judge Garland. Senator, I am not aware of the specific that
you are giving, and I expect you do not expect that I would
have been aware of it. But, of course, I do not believe as a
general matter that regulations should be used to stop people
from doing what they are lawfully entitled to do, unless the
regulation is pursuant to a statute, obviously, in which
Congress is given authority to change the rules.
Senator Cruz. As you also know, Attorney General Eric
Holder was held in contempt of Congress, criminal contempt of
Congress. That was a bipartisan vote. Eighteen Democrats voted
to hold Attorney General Holder in contempt. They did so
because he refused to produce documents to Congress for
Congress' investigation of the Fast and Furious scandal, a
major scandal that resulted in the death of two Federal law
enforcement officers.
You have previously committed to Senators on this panel
that, under your leadership, the Department of Justice will
comply to the extent possible with requests from this
Committee, and I want to, in the course of this question,
associate myself with Senator Whitehouse's comments and
questions. He and I disagree on a great many issues, but on
this particular issue, we are emphatically in agreement that
Senators from this Committee should get answers, should get
candid answers, should get substantive answers, should get real
answers from the Department of Justice, regardless of the party
of the Senator asking that question, that that is a level of
oversight that the American people have a right to expect. Do
you agree with that?
Judge Garland. I do think that this is a level of oversight
the American people have a right to expect. I want the
Department, if I am confirmed, to be responsive to the extent
it is possible with respect to the Justice Department's
appropriate equities, to be responsive to the requests for
information.
Senator Cruz. So you have had--previously you said you have
read the executive summary of the Horowitz report. What was
your reaction to the Horowitz report?
Judge Garland. Well, I thought, as Mr. Horowitz explained--
and I believe Director Wray agreed--there were problems with
respect to the applications for a couple of FISAs, that those
were not--they were not consistent with the internal
regulations of the Department, and that those problems had to
be corrected. And I think deeply that we have to be careful
about how we use FISA, and that is the reason we have pretty
strict regulations internally, and policies, and we need to
find out why they are not followed and to be sure that they are
followed. I understand that was the purpose of his report and
his recommendations to Director Wray.
Senator Cruz. So you described the report as saying there
were problems. Necessarily, that is a fairly anodyne way of
characterizing it, given the multiple material misstatements
the Horowitz report details, including Mr. Clinesmith's
fabrication of evidence and lying to a court, which he has now
pleaded guilty to. I think that was yet another example of the
deep politicization of the Department of Justice culminating in
a meeting with the Acting Attorney General, President Obama,
Vice President Biden in the Oval Office concerning the
targeting of their political opponent.
Will you commit to this Committee that, under your
leadership, the Department of Justice will not target the
political opponents of this administration and that there will
be real scrutiny? What that report outlines, among other
things, is weaponizing oppo research from the Hillary Clinton
campaign and launching a criminal investigation based on that.
Will you commit that that conduct will not be acceptable under
any Department of Justice you are leading?
Judge Garland. So, absolutely, Senator, but without trying
to comment specifically on that matter, it is totally
inappropriate for the Department to target any individual
because of their politics or their position in a campaign. The
only basis for targeting has to be evidence of the risk of a
foreign intelligence problem or of a criminal problem. And that
is a nonpartisan issue. That is a question of objective facts
and law, and it can never be an effort to help one party or
another party.
However, in investigations and prosecutions, there is no
party. The Department is an independent, nonpartisan actor, and
that is my job to ensure that that is the case.
Senator Cruz. Thank you.
Chair Durbin. Thanks, Senator Cruz.
We now understand that Senator Leahy is in Zoom range.
Senator Leahy, do you read me?
Senator Leahy. Can you hear me?
Chair Durbin. I hear the voice.
Senator Leahy. I assume there is a picture coming in here
somewhere.
Chair Durbin. Is there a way to turn up the volume so we
can hear Senator Leahy? There he is.
Senator Leahy. I am going to move this camera around just a
little bit.
Chair Durbin. All right. If you will----
Senator Leahy. Okay.
Chair Durbin. Take it away, Senator.
Senator Leahy. Thank you very much. First off, Mr.
Chairman, I am glad you are having these hearings.
Judge, it is great to see you seated there. I wish 5 years
ago we would have seen you seated there for your Supreme Court
nomination, but I am glad you are here today.
Judge Garland. Thank you, Senator.
Senator Leahy. The nomination comes at probably the most
vulnerable moment in the 151-year history of the Department,
and you have got to restore the integrity and the respect of
the Department. No small job, but I cannot think of anybody
more qualified to do that.
I know that a number of people have stated their support of
you. One person I know and respect greatly, former FBI Director
Judge Freeh, and I know he sent a letter. And, Mr. Chairman, if
you do not mind, could we have that letter go in the record, if
you have not already put it there.
Chair Durbin. Without objection.
Senator Leahy. Thank you.
[The information appears as a submission for the record.]
Senator Leahy. A lot of the things have already been
covered, and, of course, you and I have talked before. Your
experience in the Oklahoma City bombing, anybody who has been a
prosecutor knows what a job you did there, and I do appreciate
that.
We have other things you will have to deal with: the Voting
Rights Act, the John Lewis Voting Rights Act enforcement. We
have seen that there has been a scourge of voter suppression,
which would be wrong--I do not care who is being suppressed.
Unless the Justice Department gets its tools back under the
Voting Rights Act, I am afraid the right to vote is always
going to be at risk, especially for minority and underserved
communities.
Do you agree that legislation like the John Lewis Voting
Rights Advancement Act is urgently needed?
Judge Garland. So, Senator, I do not know the specifics of
the Act, although I certainly knew John Lewis well, and I was a
great admirer. I think that with respect to voting, even in
this last election, where a larger percentage of Americans
voted than ever before, there was still a huge percentage that
did not--at least a third did not vote. I think it is important
that every American have the opportunity to vote. Voting is the
central facet, the fulcrum of our democracy. So anything that
can--any legislation that will encourage more voting, I
strongly support.
Specifically, you were referring to the Supreme Court's
decision in the Shelby County case, which said that the
coverage formula for preclearance could not be used as
unconstitutional because of the then-state of the congressional
record. But then the Court indicated that a different and
stronger record might support preclearance, and I would be in
favor, if I am confirmed, of working with the Committee and the
Senate and the House to try and develop that record that would
allow that important tool to be used.
The Department still does have other tools. It has Section
II, which remains in force, as the Supreme Court clearly said
in Shelby County, and it prevents interference with voting
practices and procedures, you know, that interfere with
minorities' ability to vote. And it is something that the
Department has always looked to as an important tool. There are
plenty of other tools to increase the ability of Americans to
vote, which I would support.
Senator Leahy. Thank you. And I know Senator Lee has
already raised this, but please know that Senator Lee and I
will both be talking to you about privacy matters. This is not
a partisan issue. It is an issue of concern, and we will do
that.
Let me ask you about another area that is of additional
concern to me. In the Bush administration, the last Bush
administration, they put a moratorium on the death penalty in
Federal cases. They gave solid reasons for that, and that
moratorium has lasted--or it did last from 2003 during the Bush
administration, and then suddenly in the last 6 months, the
Justice Department under the last President rushed to execute
more people--this is what is stunning--in 6 months than had
been executed in the past 60 years. That is a matter--many of
us feel that was nothing short of being a killing spree. And
what worries me, we all know the death penalty is used
disproportionately against minorities and the poor. I was a
prosecutor. I prosecuted many murder cases. But I always
opposed the death penalty, and Vermont has gotten rid of
theirs. I would much rather have somebody serve their time for
years in a prison cell thinking of what they did wrong.
Now, I am joining Senator Durbin and Senator Booker in
reintroducing the Federal Death Penalty Act, which would end
the Federal death penalty. So I would ask you this: Would you
go back to what President Bush did and reinstate the Federal
moratorium, which was lifted just in the last few months by the
last administration, and reinstate it while Senator Durbin,
Senator Booker, myself, and others work on the legislation
eliminating the death penalty?
Judge Garland. Well, as you know, Senator, President Biden
is an opponent of the death penalty. I have to say that over
those almost 20 years in which the Federal death penalty had
been paused, I have had great pause about the death penalty. I
am very concerned about the large number of exonerations that
have occurred through DNA evidence and otherwise, not only in
death penalty convictions but also in other convictions. I
think a terrible thing occurs when somebody is convicted of a
crime that they did not commit, and the most terrible thing
happens if someone is executed for a crime they did not commit.
It is also the case that during this pause we have seen
fewer and fewer death penalty applications anywhere in the
country, not only in the Federal Government but among the
States. And as a consequence, I am concerned about the
increasing almost randomness or arbitrariness of its
application when you have so few number of cases.
And, finally, and very importantly, is the other matter
that you raise, which is its disparate impact. The data is
clear that it has an enormously disparate impact on Black
Americans and members of communities of color, and exonerations
also, that something like half of the exonerations have to do
with Black men.
So all of this has given me pause, and I expect that the
President will be giving direction in this area, and if so, I
expect it not all unlikely that we will return to the previous
policy.
Senator Leahy. Thank you. I think my time is probably just
about up, but I would also add, as Chairman of the
Appropriations Committee, I am going to be talking to you about
the Department of Justice and the grants they have on the
Violence Against Women Act, VOCA grants, other such things. The
moneys have had bipartisan support. Again, we have got to make
sure they are done. Frankly, Judge, I am very happy you are
here, but I have a feeling we are going to have a lot of
conversations in the next few years.
Judge Garland. Well, I hope that is the case, Senator. I
would be happy to have conversations even if I am not
confirmed, but I certainly prefer them if I am confirmed.
Senator Leahy. You are going to be confirmed. I will bet my
farm in Vermont on that.
Judge Garland. I would never ask anybody to bet that,
Senator.
[Laughter.]
Chair Durbin. Thank you, Senator Leahy.
Senator Sasse.
Senator Sasse. Thank you, Chairman.
Congratulations, Judge, on your nomination, and thank you
for the time you have spent in this process with those of us
who wanted to grill you in private before you were here today
in public.
You are in the process of moving from Article III to
Article II. Were you confirmed to the bench in 1996 or 1997?
Judge Garland. 1997.
Senator Sasse. Okay. In the 23 years, 24 years since you
left an executive role, obviously the Article II branch has
grown in power, and Article I seems to be shriveling in lots of
ways. Do you have a theory of why Articles II and III are
gaining more power in American life and Article I seemingly is
weaker?
Judge Garland. Well, that is, I would say, a cosmic
question of our civic life. I do not really have an answer to
that. Obviously, each branch has enormous powers authorized by
the Constitution, and it may be, if this is the case, that the
Congress has just not asserted itself as it should with respect
to protecting its authorities.
I do not have--to be honest, I am not enough of a political
scientist to know exactly how this balance has changed. I am
sure from the point of view of the Congress, its role has
diminished. But, you know, sometimes I am sure the other
branches feel the same way.
Senator Sasse. Right. Well, I think it is a mix of
overreach by Article II and underreach by Article I, so I am
not asking the question in a way to put you on the defensive as
if everything that is wrong is chiefly outside the Congress,
because I think we are probably chiefly to blame.
But you are going to become the most powerful law
enforcement officer in the Nation, and obviously, you will have
lots of prosecutorial discretion. But could you help us
understand what the line is between prosecutorial discretion,
which is understandable in any complex organization, and
executive unilateralism, which I hope we can agree, at least at
the definitional level, is a massive constitutional problem?
What is the line?
Judge Garland. So it is not the most easy line to outline.
The Supreme Court's Cheney case is the best overall
description. For the entire history of the country, prosecutors
and Government agencies have had discretion to make decisions
about how they allocate their resources in terms of enforcement
priorities, both criminal and civil. And this has either
generally been nonreviewable or deferentially reviewable in the
courts.
The opposite side of the line is that the executive branch
cannot simply decide we are not going to enforce this law at
all.
Now, where a particular piece of conduct falls between
those two is a difficult thing to say except in an individual
case.
Senator Sasse. Well, I mean, obviously in our tribal
politics, it is easy for each part, when they are out of power,
to say that the Article II branch is overreaching. But when you
are in power, it turns out those mostly look like discretion.
How do you think not just the Supreme Court line of cases but
at the level of you being the boss of the AAG for OLC, for
instance, how will you determine what actions are beyond the
pale?
Judge Garland. Well, I do think that when the Department
makes determinations based on resources, on its views about
which are the most important matters that it should go forward
with, when it thinks that State and local governments are in a
better position to handle those matters, any of those kind of
factors are all perfectly appropriate for deciding to exercise
prosecutorial discretion. But mere disagreement with the law
passed by Congress or a decision that the Department will
simply not enforce regardless of resources or other things
would be impermissible.
But, again, I think no matter how hard I try, I cannot put
this in the perfect words, and I am sure maybe we will disagree
in the future if I do get this position, but it will be out of
a good-faith effort on my part to be sure that the Executive is
only doing what it is supposed to do.
Senator Sasse. I want to move on to another topic, but one
more finer point on it. Is congressional inaction a legitimate
basis for Article II to decide it just must act because it
wishes policy were different and legislation does not move,
therefore, you have a pen and a phone, can you just act because
Congress did not?
Judge Garland. Also, you are asking really tough questions
of our basic constitutional structure. Doing so simply out of
upset that Congress has not done what you want, obviously not
okay. But in the formulation that Justice Jackson, whom I
quoted in my opening, famously gave in the Youngstown Steel
case, a President does have authorities. When he acts consonant
with Congress, he is at his highest power. When Congress has
not acted at all, he is left with only his own power which is
clearly available under the Constitution, depending on the
circumstance that we are talking about. And when he acts in
contravention of Congress, he has only the authorities the
Constitution gives him minus the authorities that the Congress
has, and this is what Jackson famously referred to as ``the
lowest ebb'' of the Executive's authority.
So inaction is in the middle. You cannot do this just
because Congress does not act, but the President can act if it
is within his authority and he believes it is something in the
public interest.
Senator Sasse. Thanks. I want to switch gears a little bit.
I was encouraged earlier when you said that the Department's
purposes are to make sure--include among them to be sure that
both the powerful and the powerless are treated equally. I want
to talk about one case where that obviously has not happened,
and that is the case of Jeffrey Epstein and his many, many
victims of domestic and international sex trafficking.
Obviously, he evaded justice for years, and when the Department
did ultimately partner with local authorities, it allowed
charges to be brought that did not befit the seriousness of his
crimes. Infuriatingly, he was allowed to die by apparent
suicide in Federal custody, despite the fact that everybody
knew he was a suicide risk and many people would benefit from
that outcome. And then, most recently, his estate has failed to
pony up to make right on all of their obligations to compensate
his victims.
What do you think went wrong with the Department's handling
of the Epstein case?
Judge Garland. Senator, so my position as a judge, and also
my previous position as a prosecutor, I have always been
extremely careful not to comment about something without
knowing the facts. The facts I know about the Epstein matter
are the ones that I have read in the media and that I have seen
on television, so I do not think--I am just not in a position--
--
Senator Sasse. We can agree that those are disgustingly
embarrassing----
Judge Garland. Absolutely.
Senator Sasse [continuing]. About how weak the Department's
pursuit of this evil man was.
Judge Garland. Absolutely. But you asked me the why
question, and I cannot answer the why question. But the values
question I can answer. This is just horrendous, and he
obviously should have been vigorously prosecuted substantially
earlier. But I do not know the why.
Senator Sasse. And he has co-conspirators who are still
being held and pursued, and as you and I discussed in private,
I hope that we will make sure that the Department prioritizes
resources for this. Scores and scores of the women he
victimized are just in their thirties now, but they have had so
much of their lives stolen from them. And, obviously sex
trafficking is a scourge of our time, and I really would hope
that the Department continues to do an after-action review on
why we have underinvested there.
I have a couple more questions on the Department's China
Initiative, but my time has expired, so I will follow up with
that separately.
Judge Garland. I look forward to it. Thank you.
Chair Durbin. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman.
I want to welcome you to the Committee, Your Honor.
Judge Garland. Thank you.
Senator Blumenthal. And I welcome your family as well, a
very supportive and accomplished family, and say that among the
qualities that you bring to this job, obviously your
brilliance, your service as a judge are tremendously important,
but I think the lesson today is that character counts in
restoring the integrity and credibility of the leadership of
the Department of Justice. I think that the character traits
that you have demonstrated throughout your career are going to
be most important: your resilience as well as your brilliance.
You have been tested by adversity and the kind of values that
you exemplified beginning when I think both of us served as
prosecutors in the Department of Justice and first met. So I
look forward to your inspiring more young attorneys to join the
ranks of law enforcement and celebrate the accomplishments of
those 115,000 professionals who every day help keep us safe.
I welcome your commitment to combating violent extremism. I
have supported and I am introducing a 9/11 Commission bill. But
I want to turn to an area of violence that you raised, which is
hate crimes, the growing incidence of hate crimes, especially
against now certain groups, Asian Americans, I think is
extraordinarily alarming. I have introduced a measure called
the NO HATE Act. The Jabara-Heyer NO HATE Act would reform the
penalties but also increase reporting. As you know, many of
these crimes are underreported.
I would like your commitment that you will support such a
measure and enforcement of the existing penalties against hate
crimes.
Judge Garland. Well, you could not have any opposition from
me in that matter, Senator. Hate crimes tear at the fabric of
our society, make our citizens worried about walking on the
street and exercising even their most normal rights. And the
role of the Civil Rights Division is to prosecute those cases
vigorously, and I can assure you that it will, if I am
confirmed.
Senator Blumenthal. Thank you. On gun violence, you have
been asked a few questions by Senator Lee. Three years ago this
month, Parkland occurred. Parkland, Sandy Hook, other places
like Las Vegas have become shorthand for massacres that are
true tragedies and also preventable by common-sense steps such
as President Biden has supported and I have helped to lead in
the Congress: universal background checks, safe storage
measures, Ethan's law, closing the Charleston loophole, and, of
course, emergency risk protection orders. Senator Graham and I
have worked together on a measure that I am hoping we will
reintroduce.
One of your predecessors, William Barr, said about
emergency risk protection orders, ``This is the single most
important thing I think we can do in the gun control area to
stop these massacres from happening in the first place.''
William Barr and I did not agree on a lot, but I think I am
of the opinion that it is an important step to take.
Would you support these kinds of common-sense steps?
Judge Garland. Yes, I do not know the specifics of all
them. Certainly with respect to emergency risk orders, when
somebody is acting out in a way that suggests that they are
going to use violence against another human being, we have to
be very careful that they do not get a weapon in their hands. I
do not know the specifics of how the legislation would do that,
but I do think that, yes.
Senator Blumenthal. Well, I welcome your support to that
extent for----
Judge Garland. I do not mean to be non-supportive, but
unless I know the specifics, it is very hard for me to make a--
--
Senator Blumenthal. I understand, and you are doing an
excellent job of navigating your way through the requests for
specific commitments. And, by the way, I understand sometimes a
non-answer is the right way for you to go in this position.
Judge Garland. Thank you, Senator.
Senator Blumenthal. Let me say also I hope you will
consider Executive orders. I understand that President Biden
may have some under consideration, for example, closing the
Charleston loophole, redefining the nature of a firearm to
prevent ghost guns from populating the world, and other steps,
and I hope you will consider using the existing authority
through ATF and other agencies to take such action.
I want to ask you about two areas that are of importance, I
think, although they may not have reached a lot of public
visibility. As you may be aware, the survivors of the 9/11
tragedy have filed a lawsuit pursuant to the Justice Against
Sponsors of Terrorism Act, JASTA. Senator Cornyn and I were
strong advocates of JASTA. They have asked for information from
the FBI in connection with that lawsuit. They have been denied
that information under the state secrets privilege. In my view,
there is no justification for failing to provide that
information. I hope that you will consider taking prompt action
to release it. I know that you cannot necessarily address it
now, but I wrote to the Department of Justice last week, not to
yourself but to your predecessor, and I hope that you will take
that letter as a matter of priority.
Judge Garland. If I am lucky enough to be confirmed, I will
certainly get the letter, and I will give it my attention. Yes,
I will.
Senator Blumenthal. And, similarly, the Department of
Justice Inspector General reportedly opened an investigation in
September 2018 of the FBI's potential mishandling of the
investigation into Larry Nassar's sexual abuse. I am sure you
recall his prosecution.
Judge Garland. I do.
Senator Blumenthal. There was an Inspector General report
that goes into the FBI's possible delay and malfeasance. That
report is finished, we are told. I hope that it will be
published promptly in the interests of the transparency value
that you outlined so well.
Judge Garland. I will definitely consult with the Inspector
General, and I do believe in making those reports public to the
extent permissible within the law.
Senator Blumenthal. Thank you. And, finally, you may be
aware that a number of my former colleagues, Attorneys General,
have taken action against Exxon and other oil companies to hold
them accountable for misleading and defrauding the public about
climate change for decades. Nothing could be so important as
the United States Department of Justice similarly taking action
against gas and oil companies for lying to the American public
about the devastating effects of these products on climate
change. I hope you will consider taking action in that regard.
Judge Garland. I guess from the way you began it feels like
there is probably pending litigation on this matter already, so
it is something I really should not be commenting on.
Senator Blumenthal. Thank you very much, Judge.
Judge Garland. Thank you, Senator.
Chair Durbin. Thank you, Senator Blumenthal.
Senator Hawley.
Senator Hawley. Thank you, Mr. Chairman.
Judge Garland, thank you for being here. Congratulations on
your nomination.
Judge Garland. Thank you, Senator.
Senator Hawley. Since June of last year, the city of St.
Louis and my home State of Missouri homicide rate is at its
highest level since 1970. Eleven police officers have been
shot, including former police officer David Dorn who was
murdered in cold blood during rioting in the city this past
summer. In Chicago, homicides are up 50 percent; in New York,
40 percent; in L.A., 30 percent. Clearly, our criminal justice
system is under renewed and fairly extreme strain.
Can you tell me, if you are confirmed as Attorney General,
what is the first thing you will do to confront this growing
crisis?
Judge Garland. I am sorry. Did you ask me what I would do
or will I?
Senator Hawley. What will you do? I assume you will do
something. What will you do?
Judge Garland. Yes, so, look, I am obviously--I have read
the statistics myself, and I know that there is an upswing in
violent crime. I am very concerned about it. When I was an
Assistant U.S. Attorney, the number of murders--I joined at a
time when the number of murders in the District of Columbia
were more than twice the number of murders that they are now. I
spent much of my early career on this problem of violent crime
searching for the best possible ways to suppress it, going
after violent repeaters being one of the best ways; going after
violent gangs that supported violent action being another
important way; putting resources in the places where they are
necessary.
Again, sitting here, and, therefore, only having been an
observer of this from the outside, I do not know what
information the Department has now, but I was a strong
supporter and one of the developers of the Violent Crime
Initiative during the time when I was in the Justice
Department, and it may well be time for another one. I know
that the administration of Attorney General Barr looked at this
very closely as well.
So I would have to look at, you know, what is going on in
the Department right now and what more needs to be done. But I
share your concern.
Senator Hawley. Very good. Thank you for that.
In the midst of this mounting crime wave, there has been
increasing calls by some activists, including Members of the
United States Congress, to defund the police. I have to tell
you I think this sends exactly the wrong message to law
enforcement who feel very much overburdened, underpaid, under
siege, and also sends the wrong message to folks who are
suffering from this violent crime wave, especially working-
class communities.
Tell me what your position is on defunding the police. Do
you support this movement? Will you support it as Attorney
General?
Judge Garland. Well, as you no doubt know, President Biden
has said he does not support defunding the police, and neither
do I. We saw how difficult the lives of police officers were in
the body cam videos we saw when they were defending the
Capitol. I do believe and President Biden believes in giving
resources to police departments to help them reform and gain
the trust of their communities.
I do believe, and I believe he does as well, that we do
need to put resources into alternative ways of confronting some
actors, particularly those who are mentally ill and those who
are suicidal so that police officers do not have to do a job
that they are not trained for and that from what I understand
it, they do not want to do. And so those resources need to go
to mental health professionals and other professionals in the
community so that the police can do the job that they have
trained for and so that confrontations, if possible, do not
lead to deaths and violence.
Senator Hawley. Let me ask you about assaults on Federal
property in places other than Washington, DC. Portland, for
instance, Seattle. Do you regard assaults on Federal
courthouses or other Federal property as acts of domestic
extremism, domestic terrorism?
Judge Garland. Well, Senator, my own definition, which is
about the same as the statutory definition, is the use of
violence or threats of violence and attempt to disrupt
democratic processes. So an attack on a courthouse while in
operation, trying to prevent judges from actually deciding
cases, that plainly is domestic extremism, domestic terrorism.
An attack simply on Government property at night or any other
kind of circumstances is a clear crime and a serious one and
should be punished. I do not mean--I do not know enough about
the facts of the example you are talking about, but that is
where I draw the line. One is--both are criminal, but one is a
core attack on our democratic institutions.
Senator Hawley. Let me ask you about something that some
progressive groups have recently been saying with regard to
you. The Progressive Change Campaign Committee, which is a
left-wing activist group that does fundraising for Democrat
Party causes, is circulating a petition addressed to you that
states, and I quote now, ``Trump and his criminal network of
associates must be investigated and prosecuted for law
breaking.'' This, of course, against the backdrop, Judge, of
groups who are keeping lists of people who worked at the White
House, including lists of interns who worked at the White
House, trying to prevent them from getting jobs, trying to
prevent them from working, whether it is in politics or
government or anywhere else again.
We have seen--Senator Cruz I know asked you about political
targeting. I have to say I am very concerned about the specter
of political targeting because it has happened before. It
happened in the Obama-Biden administration. It happened--it
culminated in lies told to the FISA Court during the last
administration with the FBI and, sadly, the Department of
Justice signed off on submissions to the FISA Court which, as
you know, were falsified, actively falsified, leading to an
unprecedented and historic rebuke from that court.
My question is: Given this pressure campaign already being
mounted toward you--this petition I just quoted is addressed to
you personally--if you are confirmed, will you resist the calls
and efforts by political groups to politicize the Department of
Justice, to use political targeting? Will you adhere to the
statute right down the middle and enforce the law fairly and
equally?
Judge Garland. Senator, I have been a judge now for almost
24 years. People on one side or the other of every single case
think I have done the wrong thing in that case, because both
sides cannot win. I have grown pretty immune to any kind of
pressure other than the pressure to do what I think is the
right thing given the facts and the law. That is what I intend
to do as the Attorney General. I do not care who pressures me
in whatever direction.
The Department, if I am confirmed, will be under my
protection for the purpose of preventing any kind of partisan
or other improper motive in making any kind of investigation or
prosecution. That is my vow. That is the only reason I am
willing to do this job.
Senator Hawley. Do you agree that what the Department of
Justice and the FBI did in misleading, deliberately misleading
a FISA Court, submitting false information to a FISA Court,
submitting falsified information and evidence to a FISA Court,
drawing the rebuke of that court, do you agree that that was an
egregious violation of public trust?
Judge Garland. I think a false statement to a court is a
terrible thing. It is--I was going to say ``obstruction of
justice,'' and it may well be, but that is a very specific
concern. But I can tell you how angry judges get when they
learn that somebody who has made an application to them has not
told them the complete truth or has spun the truth in any way.
You will hear those statements by judges all the time, and
appropriately so.
Senator Hawley. Very good. Well, thank you, Judge, and I
hope if you are confirmed that you will indeed be that guardian
to make sure that the rule of law is fairly enforced equally
and that it is not used for political purposes.
Mr. Chairman, my time counter does not work. Has my time
expired?
Chair Durbin. Yes.
Senator Hawley. All right. Thank you very much, Judge.
Thank you, Mr. Chairman.
Chair Durbin. Senator Hirono, are you within Zoom range?
Senator Hirono. Yes.
Chair Durbin. Take it away.
Senator Hirono. Thank you, Mr. Chairman.
Welcome, Judge Garland. It is nice to see you again.
Judge Garland. Thank you.
Senator Hirono. I want to start with two preliminary
questions that I ask every nominee who comes before any of the
Committees on which I sit, and these two questions are: Since
you became a legal adult, have you ever made unwanted requests
for sexual favors or committed any verbal or physical
harassment or assault of a sexual nature?
Judge Garland. No.
Senator Hirono. Have you ever faced discipline or entered
into a settlement related to this kind of conduct?
Judge Garland. No.
Senator Hirono. Judge Garland, considering that we just had
a President that did not think the rule of law applied to him,
I am gratified to hear that so many of my Republican colleagues
are asking you whether you as Attorney General will follow the
rule of law, and, of course, you will.
I want to get to consent decrees because I do not think
that you have been asked about consent decrees yet. The Justice
Department's Civil Rights Division has described consent
decrees as, I quote, ``most effective in ensuring
accountability, transparency, and flexibility for accomplishing
complex institutional reforms.''
So despite their effectiveness, however, the Trump
administration was openly hostile to consent decrees. In
November 2018, Attorney General Jeff Sessions issued a memo
that drastically curtailed their use in bringing police
departments into compliance with the Constitution. The result
was that the Trump administration did not enter into a single
new consent decree with any law enforcement agency suspected of
systemic abuse of constitutional rights, and they also actively
undermined existing consent decrees, all this while excessive
force by police in Minneapolis, Louisville, Kenosha, and other
cities led to one of the biggest social justice movements this
country has ever seen.
What is your view, Judge Garland, of the role of pattern-
or-practice investigations and consent decrees in addressing
civil rights abuses by police?
Judge Garland. Thank you for this question, Senator. I
think police accountability is an essential element of the
ability of a police department to have credibility with the
community, and without credibility and trust, a police
department cannot do its job of ensuring the safety of the
community.
Police officers who violate the Constitution must be held
accountable, and police officers who follow the Constitution
want police officers who don't to be held accountable for just
that reason, because it leads to a taint on all police
officers, which would be unfair.
Congress has given the Justice Department the authority and
the responsibility to investigate patterns or practices of law
enforcement entities' conduct that violate the Constitution and
laws of the United States. That is the statutory responsibility
of the Justice Department. And so it is an important tool the
Department has for ensuring accountability.
The statute further provides that if the Department finds
this pattern or practice of unconstitutional conduct, it can
seek equitable remedies from the court. And one of the kinds of
equitable remedies which has proven effective in the past are
consent decrees. So where they are necessary to assure
accountability, it is very important that we use that tool.
That is not the only tool available to the Justice
Department. We can use grantmaking to provide funds for police
departments to reform themselves, to make themselves more
accountable. We can provide technical assistance; we can
provide incentives. All of these are a set of tools, and the
Justice Department has been given these tools by the Congress,
and it should use all of them.
Senator Hirono. So you emphasize accountability of police
departments and the Justice Department's consent decrees,
which, by the way, are not just one-sided. They are entered
into, as I understand it, after much dialogue and discussion
with the affected police departments, so they are definitely a
tool.
By your answer, I hope that you plan to reengage the
Justice Department in enforcing and abiding by the existing
consent decrees, because I noted that the previous
administration had undermined the existing consent decrees.
Judge Garland. Well, I think if there is an existing
consent decree, then we are certainly going to require
adherence to it, yes.
Senator Hirono. You have been asked a number of questions
about, in my view, the active voter suppression laws that are
being enacted, particularly, of course, after the Shelby County
decision that gutted one of the major provisions of the Voting
Rights Act, leaving Section 2 that still gives the Attorney
General's office some tools to go after those States that are
contemplating legislation that, in effect, will result in voter
suppression.
Are you aware of any instance of widespread voter fraud in
the 2020 Presidential election or, for that matter, any other
election?
Judge Garland. No, Senator. All I know, of course, is what
I have been able to glean from the public reports of Government
agencies. The Department of Homeland Security in the previous
administration publicly described the last election as the
``most secure in American history.'' Some 60 or more courts
rejected claims of fraud in the election, some on legal
grounds, but many after providing an opportunity for the
submission of evidence and rejected the evidence that was
submitted as insufficient. And Attorney General Barr authorized
the U.S. Attorneys to investigate voter fraud after the
election and before certification, and at the conclusion, he
announced that the Department had not found evidence
sufficiently material of widespread voter fraud to have had an
effect on the election.
Senator Hirono. Thank you, Judge Garland. I am running out
of time. I just wanted to reiterate that I heard in an earlier
response that you would work with Congress to determine whether
a preclearance provision should be reenacted.
There is one other thing that I wanted to note, and that is
your acknowledgment that hate crimes against the AAPI community
is definitely rising, and that you will do everything you can
to make sure that there is enforcement of the laws against
these kinds of crimes. And I just noted that just a few weeks
ago, an 85-year-old man died after he was abruptly attacked
while out on a morning walk in San Francisco. And in Oakland's
Chinatown neighborhood, a man violently shoved and injured a
91-year-old man, a 60-year-old man, and a 55-year-old woman,
and in each of these cases, the victims were AAPI community
members.
Thank you. I do have additional questions. I will wait for
round two. Thank you.
Judge Garland. Thank you, Senator.
Chair Durbin. Thanks, Senator Hirono.
Senator Cotton.
Senator Cotton. Judge, welcome.
Judge Garland. Thank you, sir.
Senator Cotton. I want to return to Senator Grassley's
questions about the Durham investigation. Senator Grassley
asked you if you would commit specifically to ensure that John
Durham had the staff, the resources, and the time that he
needed to complete that investigation. You said you did not
have the info yet, that you needed to speak to him, but you had
no reason to think that him staying on was not the correct
decision.
Judge Garland. That is correct, Senator, yes.
Senator Cotton. Why can't you commit specifically to saying
that he will have the time, staff, and resources he needs to
complete his investigation?
Judge Garland. Well, again, it is because I am sitting here
and I do not have any information about what he needs and his
resources and the allocation of resources. But everything I
know sitting here suggests that he should, of course, have
those resources.
Senator Cotton. Judge, 2 years ago, Bill Barr made that
exact commitment about the Mueller Special Counsel. He did not
have that information. He had not consulted with the
Department. He was in the same posture you are. He simply said,
``yes.'' Why can't you say ``yes'' today, the way Bill Barr did
2 years ago?
Judge Garland. Again, my view about every investigation and
every decision I make is, I have to know the facts before I can
make those kind of decisions. I do not know what went into his
consideration, but for myself, I have to be there and learn
what is going on before I can make a decision. But as I said, I
have no reason to doubt that the decision to keep him in place
and to continue in his investigation was in any way wrong.
Senator Cotton. Was it wrong for Bill Barr to make that
commitment 2 years ago?
Judge Garland. As I said, Senator, I am not going to be
making judgments about my predecessors. I do not think there is
any purpose in that. For myself, I want you to judge me on my
own record and what I do going forward.
Senator Cotton. Was it wrong for Democratic Senators on
this Committee to repeatedly demand that Bill Barr make that
commitment 2 years ago?
Judge Garland. I think my answer would be the same.
Senator Cotton. Okay. Let us turn to the death penalty. You
said that you developed great pause over it, and you said that
Joe Biden expresses opposition to the death penalty. Did Joe
Biden or anyone from his administration, transition, or
campaign ask you not to pursue capital punishment in cases
against murderers or terrorists?
Judge Garland. No.
Senator Cotton. Thank you. Judge, you spoke at the outset,
as did perhaps several other Senators, about your outstanding
work in the 1995 Oklahoma City bombing case in which you were
part of a team that helped to bring to justice a white
supremacist mass murderer, Timothy McVeigh. He was sentenced to
death. That death penalty has been carried out. Do you regret
the fact that Timothy McVeigh received the death penalty and
has been executed?
Judge Garland. Look, I supported, as I said in my original
Senate hearing when I became a judge originally, I supported
the death penalty at that time for Mr. McVeigh in that
individual case. I do not have any regret. But I have developed
concerns about the death penalty in the 20-some years since
then, and the sources of my concern are issues of exonerations
of people who have been convicted, of sort of arbitrariness and
randomness of its application because of how seldom it is
applied and because of its disparate impact on Black Americans
and members of other communities of color. Those are the things
that give me pause, and those are things that have given me
pause over the last--you know, as I have thought about it over
the last 20 years.
Senator Cotton. Judge, if you were confirmed as Attorney
General and there was another case like Timothy McVeigh's where
a white supremacist bombed a Federal courthouse, killing 168
Americans, including 19 children, and your U.S. Attorney sought
your approval for the death penalty, would you give him that
approval?
Judge Garland. So I think it depends on what the
development of the policy is. If the President asks or if we
develop a policy of a moratorium, then it would apply across
the board. There is no point in having a policy if you make
individual discretionary decisions. So if that is the policy,
then that would be the policy.
Senator Cotton. Judge, you said in your opening statement
and, in addition, to several questions from Senators that you
would strictly regulate communications between the White House,
that there would be no partisan influence. So is this a case in
which there would be influence from the White House in
individual cases if the U.S. Attorney was seeking the death
penalty against a white supremacist domestic terrorist?
Judge Garland. Oh, I understand the question. I am sorry.
Maybe I did not understand it before. What I am trying to say
here is if there was a policy decision made by the President
and announced by the President, he certainly has the authority
to direct--and nothing inappropriate about it; it is within his
authority to require an across-the-board moratorium. This is
not--what I was talking about was not a decision by the
President in any particular case or the direction of how any
particular case should go forward, but of a moratorium which
would apply as a policy across the board.
The Supreme Court has held that the death penalty is
constitutional, but it is not required, and that is within the
discretion of the President.
Senator Cotton. Before I move on from the Oklahoma City
case, let me just commend you again for your work on it and say
that I believe Timothy McVeigh deserved the death penalty.
Judge Garland. Thank you, Senator.
Senator Cotton. Another case involves Dylann Roof, a white
supremacist from South Carolina, who went into an African-
American church and killed nine African Americans in a racially
motivated terrorist attack. The Obama Department of Justice
sought the death penalty against him and received it. Do you
believe that was a mistake?
Judge Garland. I am sorry?
Senator Cotton. Do you believe it was a mistake to seek the
death penalty against Dylann Roof for murdering nine African
Americans as they worshipped in church?
Judge Garland. I know I am not supposed to be asking you
the questions, but I have a feeling that this is still a
pending matter, and if it is, I cannot talk about a particular
case.
Senator Cotton. In that case, let me ask you the
hypothetical----
Judge Garland. I apologize for asking you because I know
that is not my----
Senator Cotton. Let us suppose that another white
supremacist walks into another African-American church and
murders African Americans worshipping Christ in cold blood. The
U.S. Attorney seeks the death penalty against that white
supremacist. Would you approve it?
Judge Garland. Again, Senator, I think it does depend on
what policy is adopted going forward. I would not oppose a
policy of the President because it is within his authority to
put a moratorium on the death penalty in all cases, and instead
to seek mandatory life without possibility of parole, without
any consideration of the facts of any particular case.
Senator Cotton. Some on the left are calling for President
Biden to grant an across-the-board commutation to all Federal
death row inmates to reduce their sentence to life in prison.
Would you recommend to President Biden that he make such an
across-the-board commutation?
Judge Garland. This is one of the ones that I would have to
think about and which I have not thought about, and I would
have to, you know, consult with the administration on such an
across-the-board policy. I have not thought about that.
Senator Cotton. Thank you.
I want to turn to racial equity. Do you agree that a core
concept, Judge, of American law is that the Government cannot
discriminate against a citizen on the basis of their race?
Judge Garland. Absolutely. Equal justice under the law,
written right there on the pediment above the Supreme Court.
Senator Cotton. And not only is it unlawful, it is morally
wrong as well?
Judge Garland. Yes, I think discrimination is morally
wrong, absolutely.
Senator Cotton. Are you aware that President Biden has
signed an Executive order stating that his administration will
affirmatively advance racial equity--not racial equality but
racial equity?
Judge Garland. Yes, and I read the opening of that
Executive order, which defines equity as the fair and impartial
treatment of every person without regard to their status, and
including individuals who are in underserved communities where
they were not accorded that before. But I do not see any
distinction between--in that regard. That is the definition
that was included in that Executive order that you are talking
about.
Senator Cotton. So to you racial equity and racial equality
are the same thing?
Judge Garland. This is a word that is defined in the
Executive order as I just said it, so I do not know what else--
I cannot give you any more than the way in which the Executive
order defined the term it was using.
Senator Cotton. Thank you, Judge.
Chair Durbin. Senator Booker.
Senator Booker. Thank you, Mr. Chairman.
Judge Garland, it is really good to see you sitting before
the Judiciary Committee of the United States Senate.
Judge Garland. Thank you, Senator.
Senator Booker. I am really grateful.
If you do not mind me starting a little bit with
philosophy, there is the Micah Mandate, which I am not sure by
your expression you know, but you have heard it before. It is
do justice, love mercy.
Judge Garland. That mandate I do know, yes.
Senator Booker. And walk humbly. It seems like a pretty
good mandate for life.
Judge Garland. Yes.
Senator Booker. And this idea of justice to me is
fundamental to the ideals of the Nation, founded with a lot of
injustice at the time, but the brilliance of the imperfect
geniuses of our Founders who aspired to create a society that,
you know, John Lewis and others would have called ``the more
beloved community.'' And one of my--an activist I have read a
lot, a theologian, said, ``What does love look like in public?
It looks like justice.'' And you have, to me, perhaps one of
the more important positions on the planet Earth for trying to
create a more just society. And the issues of race--and I was
really grateful that you in your opening remarks talked about
your agency actually coming about to deal with issues of
justice in our Nation.
I want to talk to you about white supremacist violence,
which has been mentioned a lot, but before I get there, I am
actually concerned with something that I consider pernicious
and very difficult to root out, which is the realities of
implicit racial bias that lead to larger systemic racism.
Now, I have been kind of stunned that the issue of systemic
racism has become something argued over, but if I can just walk
you through for a second, does our justice system treat people
equally in this country at this point?
Judge Garland. Sadly, and it is plain to me that it does
not.
Senator Booker. And I am going to stop you there. Bryan
Stevenson says we have a criminal justice system that treats
you better if you are rich and guilty than if you are poor and
innocent because one's finances make a difference often with
what kind of justice one gets. Is that correct?
Judge Garland. Senator, there is no question that there is
disparate treatment in our justice system. Mass incarceration
is a very good example of this problem. You know, we are
incarcerating almost 25 percent of the world's prison
population, and we have something like 5 percent of the world's
population. I do not think that is because Americans are worse.
But what underlies that is the disparate treatment of Blacks
and communities of color.
Senator Booker. Well, let us drill down on that for a
second.
Judge Garland. Yes.
Senator Booker. So one of the big things driving arrests in
our country, stunningly to me even that it is still the case,
is marijuana arrests. We had in 2019 more marijuana arrests for
possession than all violent crime arrests combined.
Now, when you break out that data and disaggregate along
racial lines, it is shocking that an African American has no
difference in usage or selling than someone who is white in
America, but their likelihood of being arrested for doing
things that two of the last four Presidents admit to doing is 3
to 4 times higher than somebody white.
Is that evidence that within the system there is implicit
racial bias? ``Yes'' or ``no,'' sir.
Judge Garland. Well, it is definitely evidence of disparate
treatment in the system, which I think does arise out of
implicit bias. Unconscious bias, maybe; sometimes conscious
bias.
Senator Booker. And I think that is a fair point.
Unconscious or conscious, nonetheless it results in a system.
And I have had great conversations with people on both sides of
the aisle, heads of think tanks that all speak to this as
abhorrent to American ideals, that we still have a system that
so disparately treats people at every point. The station house
adjustment, which I know you know what that is, which I have
seen happen as a mayor, that people get called in or are
arrested for possession of marijuana, and the police make a
decision like just, you know, leave, and your parents come and
whatever, and it is dismissed with.
We see from station house adjustments to charging, to bail,
to sentencing, every objective analysis has shown that race
right now in our country is still playing a specific influence
in the justice system that someone gets. You are aware of all
of this, yes?
Judge Garland. I am, and this is a particular part of the
reason at this moment I think I wanted to be the Attorney
General. I want to do the best I can to stop that.
Senator Booker. Right, and I want to get to that. The point
that a lot of my folks are making and you just made, it does
not mean that the people who are engaged in this are racist
overtly. It means that they have an implicit racial bias that
often leads them to make different decisions about different
people. That is correct?
Judge Garland. Yes. It also--the marijuana example is a
perfect example that you have given here. Here is a nonviolent
crime with respect to usage that does not require us to
incarcerate people. Then we are incarcerating at different
rates, significantly different rates of the different
communities. And that is wrong, and it is the kind of problem
that will then follow a person for the rest of their lives. It
will make it impossible to get a job. It will lead to a
downward economic spiral for their family.
Senator Booker. Right. And so to that point, and now to
your point I cut you off from before, now I would like to give
you a chance to answer that. Here you are in an agency that was
formed to deal with the kind of systemic racism that was going
on at that time. When you have disparate use of the law, where
you see African Americans being churned into the criminal
justice system, where it is concentrated in certain communities
and not in others, where it has, as the American Bar
Association says, 40,000 collateral consequences on the lives
of those African Americans, where they cannot get loans from
banks, they cannot get jobs, they cannot get certain business
licenses, where it is so dramatic that there are estimates that
it costs literally to African Americans in the persistence of a
wealth gap in our country, where Black families have one-tenth
the wealth of white families. If you just look at the impact of
the law and the disparate impact on just marijuana, it is
estimated to cost African-American communities in this country
billions of dollars more.
My question to you now is: Assuming this position where you
are called upon for that Micah Mandate, what are you going to
do about this outrageous injustice that persists and infects
our society with such a toll on Black and Brown communities?
Judge Garland. So there are many things that the Justice
Department has to do in this regard, and I completely agree
that disparate results with respect to wealth accumulation,
discrimination in employment, discrimination in housing,
discrimination in health care availability, all of which we all
see now in the consequences of a pandemic which affects
communities of color enormously more with respect to infection
rates, with respect to hospitalization, and ultimately to
death.
So one set of things we can do is the mass incarceration
example that I began with. We can focus our attention on
violent crimes and other crimes that put great danger in our
society and not allocate our resources to something like
marijuana possession. We can look at our charging policies and
stop charging the highest possible offense with the highest
possible sentence----
Senator Booker. I was taught in law school never to
interrupt a judge of your import, so forgive me.
Judge Garland. I do not think that applies here.
Senator Booker. I would like to end with this question, and
then my time is up.
Judge Garland. Yes.
Senator Booker. You have talked to me a lot about your
thoughts about this, and I have been really inspired. But it
gets back, to me, to your conviction in this issue and your
determination to go down--at a time when our Nation needs this,
to go down as one of the great leaders when it comes to dealing
with the daily unconscionable injustices faced by some
Americans and not others at the hands of law enforcement. And I
think that one thing you said to me privately particularly
motivated me to believe you when you talk about your
aspirations. I am wondering if you could just conclude by
answering the question about your motivation and maybe some of
your own family history in confronting hate and discrimination
in American history.
Judge Garland. Yes, Senator. So, you know, I come from a
family where my grandparents fled anti-Semitism and
persecution. The country took us in and protected us. And I
feel an obligation to the country to pay back, and this is the
highest, best use of my own set of skills to pay back. And so I
want very much to be the kind of Attorney General that you are
saying I could become, and I will do my best to try and be that
kind of Attorney General.
Senator Booker. I believe your heart, and I am grateful
that you are living that Micah Mandate.
Chair Durbin. Thank you, Senator Booker.
I am going to make a motion to introduce into the record
letters of support for Judge Garland's nomination. There are 25
different categories of letters of support. I am struck
immediately by the diversity of support that you have: 150
former Attorneys General and top Department of Justice
officials; Alberto Gonzales, Michael Mukasey, Eric Holder,
Loretta Lynch. The list goes on and on. Dozens of former
Federal judges, former State Attorneys General. For you to have
both the National Sheriffs' Association, the Fraternal Order of
Police, and the Leadership Conference on Civil and Human Rights
is an amazing political achievement.
And the list goes on: advocates for crime victims and
survivors, former FBI Director Louis Freeh. Senator Lee
mentioned the Levi children and grandchildren. They both have
written letters of support for you.
I wanted to take a moment, in light of your closing
statement from this round, to tell you that your work and your
life has been recognized across the board. This array of
letters of support speaks to fairness and honesty in the way
that you have dealt with your legal profession and your public
service.
So, without objection, I will introduce these letters of
support for your nomination into the record.
[The information appears as submissions for the record.]
Chair Durbin. And now we are going to take a lunch break,
and I am going to declare--I guess I have the power to do that
now--that we will return at 1:40, and the first person up will
be from the sovereign State of Louisiana, John Kennedy, and we
will all anxiously await his contribution. So let us stand in
recess.
Judge Garland. Thank you.
[Whereupon the hearing was recessed and reconvened.]
Chair Durbin. The hearing will resume.
Senator Kennedy of Louisiana.
Senator Kennedy. Thank you, Mr. Chairman.
Good afternoon, Judge.
Judge Garland. Nice to see you, Senator.
Senator Kennedy. Good to see you, sir. I want to follow up
a little bit on something that Senator Booker talked about.
What, to you, is justice?
Judge Garland. Everybody treated equally, regardless of
their position in society--powerful, powerless, rich, poor,
Republican, Democrat, Black, white: Equal justice under the
law.
Senator Kennedy. I want to go a little further, press you a
little bit on that. Is it justice if you have an unjust law
that is applied equally?
Judge Garland. Well, no. The unjust law is itself the lack
of justice.
Senator Kennedy. Let's narrow it down to punishment
injustice. If I suggested to you that justice in the concept of
punishment is when someone gets what he deserves, would you
agree or disagree with that?
Judge Garland. I supposed that depends on what ``gets what
he deserves'' means. But yes, I think justice requires
individualized determination of the kind of crime you did, you
know, and the mitigating circumstances, yes.
Senator Kennedy. Well, let me put it another way. Is a
person who commits a crime a sinner, in the moral sense, or a
sick person?
Judge Garland. This is, again, probably beyond my
competence. I think with justice comes mercy, and so I think we
have to take into consideration all different kinds of things.
I also think that the kind of crime that we're talking about is
relevant to the question of what kind of person it is. So I am
not sure exactly what you are asking me. I am not trying to be
evasive. I just don't know exactly what you are asking me.
Senator Kennedy. Okay. Let me shift gears here. Were you
Chief Judge when the coronavirus hit us?
Judge Garland. Unfortunately for my successor, my term ran
out just before coronavirus hit us.
Senator Kennedy. Well, if you had been Chief Judge----
Judge Garland. Yes.
Senator Kennedy [continuing]. Would you have adopted a rule
that said if one of our employees in the court gets coronavirus
and goes to the hospital, and is treated, and is released, and
wants to come back to work at the court, it would be
discriminatory to ask them to take a coronavirus test?
Judge Garland. No.
Senator Kennedy. Okay. Isn't that what happened with a lot
of our nursing homes throughout the country?
Judge Garland. You know, I honestly don't know what
happened with the nursing homes. I don't know what they were
doing with respect to--I am sorry. Again, I am not trying to be
evasive. I really don't know the facts here. I mean, I think in
the example you gave me, there is nothing discriminatory about
asking people who might be infected, from a public health point
of view, to be sure they don't infect other people, and if a
determination is made they are not infected then, of course,
that is the end of it. Equal treatment does not mean we don't
take into consideration the possibilities of different degrees
of health in a particular circumstance, and I honestly don't
know what happened with the nursing homes. I know that it was
terrible that many people got COVID in the nursing homes, and
it was a major vector in the spread of the infection. But I
don't know why that was, except that they are people cooped up
in one place, and then it is easy to spread that way.
Senator Kennedy. All right. I think science tells us that
keeping our schools closed has a disproportionate impact on
poor people and children from poor families and on families
included, but not limited to, children of color. At what point
do you think our refusal of some of our leadership in our
schools to reopen becomes a civil rights violation?
Judge Garland. So, Senator, I completely agree with your
description of the consequences of the school closing.
I tutor two children in a neighborhood in Washington, DC,
where most of the students in the school are people of color,
and I have been able to tutor them by Zoom every week, and they
are taking classes by Zoom. And it is much more difficult,
obviously, for them, although they have done terrifically, not
because of me but they have, than it would be with people with
other resources.
So I think that public officials have to weigh very serious
competing concerns with respect to how to deal with COVID.
There is just no doubt about it. On the one hand, we have to be
very worried about setting kids back in their schooling, and,
on the other hand, we have to be very worried about not
spreading the disease in a way that kills them or, more
importantly, or more likely, their parents or their
grandparents.
Senator Kennedy. Judge----
Judge Garland. And I don't want to be the person who makes
that judgment.
Senator Kennedy. I understand, and I get it. Sorry to
interrupt. I hate----
Judge Garland. No, no. I am sorry. I interrupted you.
Senator Kennedy. I just have limited time.
You had written, in one of your opinions, and I am going to
read--I know you haven't memorized all of your opinions. You
said the Constitution, quote, ``does not contemplate that the
District''--the District of Columbia--``may serve as a State
for purposes of the apportionment of congressional
representatives. That textual evidence is supported by
historical evidence concerning the general understanding at the
time of the District's creation.'' Is that still your
considered opinion?
Judge Garland. Yes, and I would say that that is the case,
one of my earliest cases, which taught me what it means to be a
judge, which is to do something the opposite of what you would
do if you had a public policy concern. I think that citizens of
the District of Columbia should be able to vote, but I didn't
think that the Constitution gave me authority, on my own, to
give it to them. And it made me sad but it reaffirmed my role
as a judge.
Senator Kennedy. Okay. In my last 20 seconds I am going to
ask you if you agree with this statement. Allowing--and I am
not suggesting the answer one way or the other. I just want to
know what you believe. Allowing biological males to compete in
an all-female sport deprives women of the opportunity to
participate fully and fairly in sports and is fundamentally
unfair to female athletes.
Judge Garland. This is a very difficult societal question
that you are asking me. I know what underlies it.
Senator Kennedy. I know, but you are going to be Attorney
General.
Judge Garland. Well, but I may not be the one who has to
make policy decisions like that, but it is not that I am
adverse to it. Look, I think every human being should be
treated with dignity and respect. That is an overriding sense
of my own character but an overriding sense of what the law
requires.
The particular question of how Title 9 applies in schools,
is one, in light of the Bostic case, which I know you are very
familiar with, is something that I would have to look at when I
have a chance to do that. I have not had a chance to consider
these kinds of issues in my career so far. But I agree that
this is a difficult question.
Senator Kennedy. Thank you, Judge.
Chair Durbin. For his first question as a Member of the
Senate Judiciary Committee, Senator Alex Padilla.
Senator Padilla. Thank you, Mr. Chairman.
Judge Garland, and to your family, thank you for your many,
many years of public service, and should you be fortunate
enough to be confirmed in this next chapter.
I have spent a little bit more than 20 years in public
service myself, in different capacities, including the prior 6
years, prior to my appointment to the Senate, as California's
Secretary of State and Chief Elections Officer. My mission, in
that role, was to increase voter participation and ensure free
and fair elections.
As the country has become more diverse, not just States
like California and New York but throughout the Nation, it is
no coincidence that we have seen a resurgence of white
supremacy and violent extremism. And history is clear--voter
suppression is rooted in white supremacy. This is true now and
it has been true ever since Reconstruction and the
establishment of the Department of Justice, just as this
Committee has acknowledged at its outset.
It should not be lost on any of us that after the 2013
Shelby v. Holder decision by the Supreme Court we have seen a
wave of legislation in States across the Nation which have the
effect of making it harder for eligible citizens to register to
vote, to stay registered to vote, or to simply cast their
ballot. I know Senator Leahy touched on the subject of voting
rights in his questioning earlier today, but I want to
acknowledge that despite the success of the 2020 election,
which has been deemed secure, new voter suppression laws are
being introduced right now across the country under the false
pretext of preventing voter fraud.
Now we all saw how former President Trump's years of lies
about voter fraud, the big lie, radicalized many of his
supporters and led not just to physical threats against
elections officials, elections offices, polling places, and
even voters, but they ultimately led to the violent
insurrection here in the Nation's capital. I know you touched
on this in your opening remarks, but can you expand on how you
will combat the white supremacy that threatens the safety and
fairness of our elections, specifically?
Judge Garland. Well, you have asked a lot of questions all
in one, which is----
Senator Padilla. It is complicated.
Judge Garland. It is a complicated problem. Right. So I
strongly believe in voting and in increasing every possible
opportunity for voting, which, of course, Congress can do even
on its own. The Elections Clause of the Constitution permits
the Congress to set time, place, and manner, and to alter State
regulations in that respect. In default, the State decides what
Congress can act that way. So that is one thing that Congress
could do as a matter of legislation.
As I said, I think I would like to work with the Congress
on improving the record with respect to Section 4, so that we
can use a tool of Section 5. We do have the authority of
Section 2. It does require--it changes the burden of proof and
it requires to attack, one by one, changes in election laws.
But it does give us the opportunity to bring cases both where
there was intention to discriminate but also where there is an
overall disparate impact with respect to discrimination.
So we have a number of tools available to us, and the
Voting Rights Section of the Civil Rights Division was
established for the purpose of pursuing those cases, and we
would do so.
Senator Padilla. Thank you. I want to dig a little bit
deeper on this, because you are absolutely right. We need, in
my opinion, to restore the full strength of the Federal Voting
Rights Act. There is a lot that can and should be done, not
just in terms of elections administration with respect to
voting rights, but protection of voters themselves. You know,
people should be able to vote free of any harassment,
intimidation, obstacles, et cetera. And part of what works
against that is, again, rooted in white supremacy--this big
lie.
We all sat through the impeachment trial, and the results
notwithstanding, I can't help but be moved by the evidence
presented by the House Managers, again, how President Trump's
big lie about voter fraud radicalized so many of his
supporters. And I was struck by a February 19th opinion piece
in The Washington Post by Jim Sciutto, about the parallels
between the Capitol insurrectionists and foreign terrorist
organizations, that I would respectfully ask be inserted into
the record, Mr. Chairman.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Padilla. In it, Jim Sciutto writes, and I will
quote, ``domestic radicalism has deep parallels to jihadist
terrorism: Both movements are driven by alienation from the
political system and a resulting breakdown in social norms. For
some groups and individuals, this breakdown leads to violence
they see as justified to achieve political ends,'' end quote.
Now, as we all know, the definition of terrorism is the
unlawful use of violence and intimidation in pursuit of
political ends. President Trump's political end was clear--
stopping the certification of the 2020 election at the Capitol
on January 6th. One could argue that right-wing groups, like
the Proud Boys and the Oathkeepers, have acted like terrorists
themselves, communicating with one another, training together,
and preparing for the moment they are activated for their
mission. Indeed, President Trump instructed the Proud Boys, on
national television, to ``stand back and stand by,'' and then
he summoned them to the Capitol on January 6th, as Congress was
meeting to certify the election.
What happened on January 6th was not a property crime. It
was not vandalism, in reference to a question you were asked
earlier. Judge Garland, as we sit here in the United States
Capitol, surrounded by National Guard troops and barbed wire,
how will you bring the full resources of the Justice Department
to bear on white supremacist organizations that pose an ongoing
threat to not just our safety and not just the safety of this
Capitol building but to our fundamental democracy for which it
stands?
Judge Garland. I couldn't agree more that extremist groups,
and particularly white supremacist groups, do pose a
fundamental threat to our democracy, and they have posed that
threat throughout our history. And as I recounted, that was the
reason the Justice Department was originally established, to
fight the first incarnation of the Ku Klux Klan.
The best that I can do is, as I said, my first priority
will be to have a briefing on where we are, if I am confirmed,
with the investigations, which, from the outside, appear quite
vigorous and nationwide, and to find out what additional
resources we need. But that is just to focus on what happened
in the Capitol. We also have to have a focus on what is
happening all over the country and on where this could spread
and where this came from, and that requires--it does require a
lot of resources. I am very pleased to have read that the
Director of the FBI believes that this kind of extremism is the
most dangerous threat to the country, and that is where he is
putting FBI resources. That is where I would put Justice
Department resources. And we need very much to make sure that
that is the case.
And I do want to be careful that we also always worry about
the foreign threat, because it is always with us, and the fact
that nothing has happened recently doesn't mean it could not
happen tomorrow. So from whichever direction--inside, outside,
right, left, it doesn't matter--an attack on our institutions
of democracy and of our ability to go forward with our daily
lives and safety has to be stopped, and that we need all--it is
governmentwide but also a Justice Department-wide obligation.
Senator Padilla. Thank you, Judge.
Thank you, Mr. Chair.
Chair Durbin. Thanks, Senator.
Senator Tillis would be next but he is not in Zoom range.
Is that a possibility? And so Senator Blackburn, if she can
connect with us, is next up.
Senator Blackburn. Yes, sir, I am connected, Mr. Chairman.
Thank you so much.
And, Judge Garland, I want to say thank you to you for your
willingness to serve and for your career in public service. And
I will tell you, as I have talked to Tennesseans about this,
they care a lot about law, order, timeliness at the Justice
Department. After the Christmas Day bombing, you and I
discussed this, in the bombing that took place in Nashville.
They really are interested in the principles and the
convictions of our Nation's top law enforcement officials. And
my hope is, and I think the expectation is that you will assure
the American people that you are going to apply the law fairly
and equitably, because in this country, as we know, no one is
above the law.
Now I know you have been asked about the Durham
investigation, and I will tell you that this is important to
Tennesseans, in making certain that that investigation is going
to be completed and that you are going to work to be certain
that it is not impeded and is completed, and that you are
committed to seeing this through to completion.
Judge Garland. Well, thank you, Senator. I appreciate it,
and I appreciated the opportunity we had to discuss these
matters earlier, as well.
As I said, with respect to the Durham investigation, I
don't know anything about it other than what has appeared in
the media. The investigation has been discreet, as appropriate,
with respect to expressions of its status. I understand that
Mr. Durham has been permitted to remain in his position, and I
know of nothing that would give me any doubt that that was the
correct decision.
Senator Blackburn. And I appreciate that, and likewise, we
had discussed the investigation into Hunter Biden's business
dealings. And we want to make certain that you commit to
allowing Delaware U.S. Attorney David Weiss to complete that
investigation and bring that evidence forward.
Judge Garland. And similarly with Mr. Durham, I don't know
anything about that investigation, other than what I have read
in the media. And again, that investigation has been proceeding
discreetly and not publicly, as all investigations should. I
understand that the Delaware U.S. Attorney was permitted to
stay on as U.S. Attorney, and I, again, have absolutely no
reason to doubt that that was the correct decision.
Senator Blackburn. And let's talk a little bit about China,
because we discussed some of that for the record. And our last
DNI had stated that China is our greatest threat. So I would
like to hear from you. Do you agree that the Chinese Communist
Party is an enemy of the American people?
Judge Garland. Well, I don't have the same familiarity with
the intelligence information that the Director of National
Intelligence has, so in terms of comparing, say, the threat
from China and the threat from Russia, I am just not competent
to make that comparison, and I have learned, in my professional
career, not to make judgments on which I am not competent. But
certainly, from what the Director said, there is no doubt that
China is a threat with respect to hacking of our computers,
hacking of our infrastructure, theft of our intellectual
property. All of these are very difficult problems that we have
to defend against.
Senator Blackburn. Well, we do, and I know that Lindsey
Graham asked you about Section 230 and some of the issues that
are there. We all are very concerned about the issues that
surround China, whether it is the Chinese Communist Party and
the way they threaten our democracy and our economic leadership
around the globe. And we are also concerned about the Chinese
military links into our American universities through things
like the Confucius Institutes. For instance, recently there was
a situation at Harvard with a cancer researcher, and he was
caught trying to smuggle 21 vials of biological material out of
the U.S. and get it to China.
And I would hope what you agree is that this threat puts
American intellectual property and technology at risk, and I
would hope that you would assure the American people that you
are going to put the full force of the Department of Justice
forward to investigate and to prosecute every one of these
spies that are working on U.S. soil.
Judge Garland. Well, Senator, I am not familiar with that
circumstance so I can't comment on it specifically, but I can
assure that the Justice Department's National Security Division
was created, in part, for the purpose of ferreting out
espionage by foreign agents and that that is also the role of
the FBI and the two working together. And if foreign agents are
caught stealing American intellectual property, American trade
secrets, American materials, that they will be prosecuted. Yes,
of course.
Senator Blackburn. Thank you. We are about a year into this
pandemic, and technology has allowed for us to do work like we,
in the Senate, are doing with WebEx. I think we have all found
that it gives a lot of flexibility. But as we are spending more
time online we hear from people about holding Big Tech
accountable. As I said, you discussed Section 230 earlier. And
we are hearing more about antitrust lawsuits. Of course, you
all have heard the current suit against Google, and I will hope
that you are going to allow that lawsuit to continue.
Judge Garland. Yes. Again, I don't want to talk about a
particular lawsuit, but I don't see--every matter I have to ask
for a briefing on. But much of that lawsuit is public, and
again, given what I have read I don't see any reason why that
investigation, the decision to institute that investigation
would be changed. But I only know what I have read with respect
to the descriptions of the public filings.
Senator Blackburn. Let me ask you one more question, and
then I am going to have a series of questions to come to you as
QFRs. President Biden has talked about reinstating the Obama
administration practice of paying settlement money from winning
lawsuits to third-party interest groups like La Raza, the
National Community Reinvestment Coalition, and the Urban
League. And it is just--you know, I find it really interesting
that they would choose to have that money go to these outside
groups instead of to victims, or to the U.S. Treasury.
So do you plan on reinstating that policy, and how would
you justify reinstating that policy?
Judge Garland. I don't have any plan one way or the other.
I know you raised that policy when we were talking before, and
I understand your concern about it. Obviously, damages,
recoveries should first go to help victims. I don't know very
much at all about the policy, and it would be something I would
have to consider, if I am confirmed. I would have to hear the
arguments on both sides of why the policy obviously started and
also why it was rescinded.
Senator Blackburn. Thank you so much. I appreciate your
time.
Mr. Chairman, thank you.
Chair Durbin. Thanks, Senator Blackburn.
Senator Ossoff, welcome to the Committee. Your turn to
question.
Senator Ossoff. Thank you, Mr. Chairman.
And Judge Garland, congratulations on your nomination.
Thanks for the time that we spent by videoconference discussing
some of these issues. Thank you also for sharing your family's
immigrant story with the Committee.
It mirrors my own. My great-grandparents came here fleeing
anti-Semitism in 1911 and 1913, from Eastern Europe, and I am
sure your ancestors could hardly have imagined that you would
now be sitting before this Committee and in confirmation for
this position.
Judge, I want to ask you about equal justice. Black
Americans continue to endure profiling, harassment, brutality,
discrimination in policing and prosecution and sentencing and
in incarceration. How can you use the immense power of the
Office of the Attorney General to make real America's promise
of equal justice for all, and can you please be specific about
the tools that you will have at your disposal?
Judge Garland. So this is a substantial part of why I
wanted to be the Attorney General. I am deeply aware of the
moment that the country is in. When Senator Durbin was reading
the statement of Robert Kennedy, it hit me that we are in a
similar moment to the moment he was in.
So there are a lot of things that the Department can do.
One of those things has to do with the problem of mass
incarceration, the over-incarceration of American citizens and
of its disproportionate effect on Black Americans and
communities of color and other minorities. There are different
ways in which we can--and that is disproportioned in the sense
of both the population but also given the data we have on the
fact that crimes are not committed--these crimes are not
committed in any greater number than in others, and that
similar crimes are not charged in the same way.
So we have to figure out ways to deal with this. One
important way, I think, is to focus on the crimes that really
matter, to bring our charging and our arresting on violent
crimes and others that deeply affect our society, and not have
such an overemphasis on marijuana possession, for example,
which has disproportionately affected communities of color, and
then damaged them after the original arrests, because of the
inability to get jobs.
We have to look at our charging policies again, and go back
to the policy that I helped Janet Reno draft during her period,
and that Eric Holder drafted while he was the Attorney General,
of not feeling that we must charge every offense to the
maximum, that we don't have to seek the highest possible
offense with the highest possible sentence, that we should give
discretion to our prosecutors to make the offense and the
charge fit the crime and be proportional to the damages that it
does to our society.
That we should also look closely and be more sympathetic
toward retrospective--of reductions in sentences, which the
First Step Act has given us some opportunity, although not
enough, to reduce sentences to a fair amount. And
legislatively, we should look at equalizing, for example, what
is known as the crack-powder ratio, which has had an enormously
disproportionate impact on communities of color, but which
evidence shows is not related to the dangerousness of the two
drugs. And we should do, as President Biden has suggested, seek
the elimination of mandatory minimum, so that we, once again,
give authority to district judges, trial judges, to make
determinations based on all of the sentencing factors judges
normally apply, and don't take away from them the ability to do
justice in individual cases. All of that will make a big
difference in the things that you are talking about.
Senator Ossoff. Thank you, Judge Garland. Let's discuss
accountability for local agencies. The Civil Rights Division
has the authority to launch pattern-or-practice investigations,
targeting systemic violations of constitutional rights or
violations of Federal statutes governing law enforcement.
Tomorrow will be the first anniversary of the murder of Ahmaud
Arbery in Glynn County, Georgia, who was shot to death in broad
daylight, in the street, on camera. But local authorities chose
to look the other way and were it not for the activism of
Georgia's NAACP there likely would not have been any
prosecution in that case.
How can Congress equip DOJ's Civil Rights Division to
launch more and more effective pattern-or-practice
investigations, without asking you to comment on the details of
the Arbery case? And how else can the Department of Justice use
its authority to ensure that where local agencies violate
constitutional rights or fail to uphold the guarantee of equal
protection there is accountability?
Judge Garland. Well, I appreciate you not asking me to talk
about a pending case. What I will say is that like many, many
Americans, I was shocked by what I saw in videos of Black
Americans being killed over this last summer. That, I do think,
created a moment in the national life that brought attention
from people who had not seen what Black Americans and other
members of communities of color had known for decades. But it
did bring everything to the fore and created a moment in which
we have an opportunity to make dramatic changes and really
bring forth equal justice under the law, which is our
commitment of the Justice Department.
The Civil Rights Division is the place where we focus these
operations. You are exactly right that pattern-or-practice
investigations are the core of our ability to bring actions
here, that these lead to all different kinds of remedies,
sometimes consent decrees as a potential remedy. We also can
criminally prosecute violations of constitutional rights, and
we can also provide funding for police departments to reform
themselves. I do believe that officers who follow the law in
the Constitution want that accountability. They want officers
who do not to become accountable, because if that doesn't
happen, their law enforcement agency is tainted, they lose the
credibility in the community, and without the community's trust
they can't bring safety.
So we have this number of tools. Whether we need additional
tools in this particular area, I don't know. Obviously, the
resources are necessary--and I am probably going to be like a
broken record--in every one of these areas for us to do our
job.
Senator Ossoff. And, Judge Garland, with my time----
Judge Garland. Oh, I am sorry.
Senator Ossoff [continuing]. Will you commit to working
with my office and with this Committee to determine what
additional authorities the Department may need and what
resources you may require in order to be able to bring more and
more effective pattern-or-practice investigations, where
appropriate?
Judge Garland. Absolutely, Senator. I am sorry to have gone
on.
Senator Ossoff. No problem. Thank you, Judge Garland.
Mr. Chairman, I yield back.
Chair Durbin. Thank you, Judge, and thank you, Senator
Ossoff.
And so only in the Senate would we characterize a 5-minute
round of questioning as a lightning round. That is what we are
going to shift to at this moment. And those Senators who wish
to ask a second question will have 5 minutes to do so, and I am
going to kick it off, if I can.
I want to address an issue which doesn't come up very often
in this type of hearing but should, and that is the state of
America's Federal prisons. We talk a lot about justice under
the law sentencing enforcement. We know the outcome in many,
many cases is that a person is incarcerated for sometimes a
very lengthy period of time. How long that period of time is
and how that person is treated in prison should be our concern
as well. It is a reflection on our values as a nation, just as
many other things are.
So the first thing I would say is that I made a serious
mistake, along with many others, including the current
President, in supporting a bill more than 25 years ago, which
established a standard for sentencing crack cocaine 100-to-1
compared to powder cocaine. The net results of it was a failure
of policy. It did not reduce addiction. It did not raise the
price of crack cocaine. Just the opposite occurred. We ended up
arresting thousands of Americans and sentencing them to lengthy
sentences, primarily African Americans.
And so, I introduced a bill several years ago, the Fair
Sentencing Act, which was signed into law by President Obama,
and then I worked with Senator Grassley, Senator Lee, who is
here today, as well as Senator Booker and others to pass the
First Step Act. The idea was to reconcile some of the injustice
in our sentencing under that earlier law. President Trump, much
to our surprise, signed it into law, and even spoke positively
about it at the State of the Union.
Unfortunately, it has not been implemented, and the
provisions in there to prepare people for release from prison,
as well as to reduce sentences, have not been effectively
enforced. So point number one, I hope you will put that on your
agenda, because I will be back in touch with you to ask.
Second point. The United States has 5 percent of the
population of the world and 20 percent of the COVID infections
and deaths. It is a terrible commentary on our failure to deal
with this public health crisis. But to make matters even worse,
the infection rate in Federal prison populations is four times
what it is in the surrounding community, and more than 230
Federal prisoners have died. We need to have a sensible and
humane response to compassionate release in this time of
pandemic. Senator Grassley and I have introduced legislation
along those lines, and I am going to ask you to look at that
carefully, as well.
And the third is the last item that I will bring up for
your response. There was an article written several years ago
in the New Yorker magazine, and I think I may have mentioned
this to you, by Dr. Atul Gawande, who is a surgeon in the
Boston metropolitan area, a prolific writer and a very
insightful man. And he wrote an article about the impact of
solitary confinement on the human mind, and he went further to
talk about how people, in a perilous situation, can be reduced
to an inhuman level just by isolation 23 hours a day, sitting
in a cell by yourself. It just has that impact.
And I looked into it, to see what was happening at the
Federal level. I am happy to report to you that things are
marginally better, but only marginally. I think that isolation
is cruel and unusual, and has to be used in some circumstances
for an extremely dangerous inmate, but, unfortunately, it is
used in too many circumstances now. Many States are way ahead
of the Federal prison system in looking at this issue.
I only have a minute left and it is all yours to react.
Judge Garland. Well, these are all easy because I had
already thought about all of them, and in each case I think I
will be looking at each one of these problems. The First Step
Act, both with respect to our--obviously if I am confirmed--the
First Step Act with respect to the re-entry education that is
required so that people don't become recidivists, they are able
to go into society, the First Step Act with respect to the
coverage of the Act for retroactive reduction in sentences.
I also, over the years, maybe like you I have learned more
and more about the crack-powder distinction and how, by reading
the Sentencing Commission reports, about how there seems to be
little, if any, support for making that. So I now am of the
view that there is no reason, so I am very interested in reform
in that area.
I have read, but I don't know a lot about the solitary
confinement issue, but I can't imagine that--obviously it is
required in some circumstances to protect people from other
people, but it is not any kind of regular measure for
incarceration.
So all three of these areas are ones that I was already
planning to look at, and I can assure you that I will.
Chair Durbin. Thanks, Judge.
I see Senator Lee is here, and I am going to recognize him
next in the lightning round.
Senator Lee. Thank you, Mr. Chairman.
Judge Garland, consistent with the idea of this being our
lightning round I am going to start with some questions that
can be ``yes'' or ``no.'' If they require more than that you
can ``yes'' with this or that minor caveat, but I would prefer
a ``yes'' or ``no'' if you can provide one of these.
Do you believe that individuals who advocate for the rights
of unborn human beings are rendered unfit for public office, by
virtue of having engaged in such advocacy?
Judge Garland. No.
Senator Lee. Do you believe that efforts to purge voter
rolls of individuals who have either died or have left the
State in question, or to require voter identification, are
racially discriminatory and an assault on voting rights?
Judge Garland. This is one I can't answer ``yes'' or ``no''
because you are asking about motivations of individuals, some
of whom may have discriminatory purpose and some of whom have
no discriminatory purpose.
Senator Lee. Okay. Okay. I think that answers my question
there, because I guess what I am asking is does an individual,
without knowing more than that, is there anything about those
comments or support for those positions, that in and of
themselves would make that person a racist or an assault on
voting rights?
Judge Garland. Again, there is nothing about the comment
itself, but, you know, there is such a thing as circumstantial
evidence, obviously, and if there is enormously disparate
impact of things that somebody continues to propose, you know,
it is not unreasonable to draw conclusions from that. But the
mere fact of the statement, no.
Senator Lee. Do you believe that Republicans in the United
States--and by Republicans I mean as a whole--are determined
to, quote, ``leave our communities to the mercy of people and
institutions driven by hate, bigotry, and fear of any threat to
the status quo,'' close quote?
Judge Garland. I don't make generalizations about members
of political parties. I would never do that.
Senator Lee. I appreciate that, and would not expect
otherwise. The reason I raise these, these are questions that
have been drawn from comments by Vanita Gupta, who has been
nominated to be the Associate Attorney General, has advocated
for each of these positions.
Judge Garland. Well, Senator, I know Vanita Gupta now quite
well. I didn't know her before, but since the nomination I have
gotten the chance to talk with her and speak with her. I have
to tell you, I regard her as a person of great integrity and a
person who is dedicated to the mission of the Department, and
particularly equal justice under law.
Senator Lee. I understand. I am not asking you to weigh in
on her, on her as a person. I am just talking about the
comments.
Let's move on. Would an individual's past statements,
statements in the past, as an adult, declaring that one racial
group is superior to another, would statements like that be
relevant to an evaluation of whether such a person should be
put in charge of running the Department of Justice's Civil
Rights Division?
Judge Garland. So, Senator, I read, in the last few days,
these allegations about Kristen Clarke, who I also have gotten
to know, who I also trust, who I believe is a person of
integrity, whose views about the Civil Rights Division I have
discussed with her, and they are in line with my own. I have
every reason to want her. She is an experienced former line
prosecutor of hate crimes, and we need somebody like that to be
running the----
Senator Lee. I am asking you about the statement. I not
asking about her as a person. I am asking you about the
statement. In the abstract, would someone who has made that
comment, would that comment itself be relevant to the question
of whether that person, having made that statement, should be
put in charge of running the Civil Rights Division?
Judge Garland. All I can tell you is I have had many
conversations with her about her views about the Civil Rights
Division, about what kind of matter she would investigate----
Senator Lee. What about anti-Semitic comments? Would those
be relevant to someone wanting to----
Judge Garland. You know my views about anti-Semitism.
Senator Lee. Right.
Judge Garland. No one needs to question those.
Senator Lee. I am not questioning your views.
Judge Garland. I know you are not. But I also want you to
know I am a pretty good judge of what an anti-Semite is, and I
do not believe that she is an anti-Semite, and I do not believe
she is discriminatory in any sense.
Senator Lee. Okay. Tell me this. Judge, you are a man of
integrity, and one who honors and respects the laws. What
assurances can you give us, as one who has been nominated to
serve as the Attorney General of the United States, that you,
if confirmed as Attorney General of the United States, what
assurances can you give Americans who are Republican, who are
pro-life, who are religious people, who are members of certain
minority groups--you know, in short, half or more than half of
the country--telling them that the U.S. Department of Justice,
if you are confirmed, will protect them, if Department of
Justice leaders have condoned radical positions, like those
that I have described?
Judge Garland. Look, I will say again. I don't believe that
either Vanita or Kristen condone those positions, and I have
complete faith in them. But we are a leadership team, along
with Lisa Monaco, that will run the Department. And in the end,
the final decision is mine. The buck stops with me, as Harry
Truman said, and I will assure the people that you are talking
about I am a strong believer in religious liberty and there
will not be any discrimination under my watch.
Senator Lee. Thank you.
Chair Durbin. I might remind the Committee that the
statements that are being alleged can all be asked of the
actual witness. The Committee is going to have a hearing on
these individuals, and it would only be fair to take the
question to them, as opposed to asking for a reaction from
someone who did not make that statement.
Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman, and I
appreciated, Judge, your full-throated defense, not only of
religious liberty, which I know is important to Senator Lee,
but also of your team and the people that you want to work with
going forward. And while the Chairman is correct, we can ask
questions of those nominees, I think it is important to hear
from you, with their hearings coming up, of your beliefs about
how they can do the job. So I appreciate that. I know both of
them and have a lot of respect for them.
Judge Garland. Thank you, Senator. They have skills that I
do not have. They have experiences that I do not have.
Likewise, Lisa Monaco has experiences in the intelligence world
that I do not have. No human being can have all the skills
necessary to run the Justice Department, and I need this
leadership team if I am going to be successful, if you confirm
me.
Senator Klobuchar. Very good. Well, thank you very much.
One thing that we didn't touch on when I asked my first round
of questions was the Violence Against Women Act, and I am going
to be working with Senator Feinstein and others on this
Committee to finally get that done. I don't know if you have
followed this but we have had a delay in getting that
reauthorized. It has tended to be a bipartisan bill in the
past, and I have several provisions in the bill, including one
to fix a loophole that exists involving--it is called the
Boyfriend Loophole, but it is not as positive as that sounds,
about getting guns after people have committed serious crimes.
But the second piece is a bill called the Abby Honold Act,
which is about a rape victim in Minnesota who worked with us,
and Senator Cornyn is my co-sponsor of the bill, to be able to
do a better job with law enforcement to investigate sexual
assault crimes.
But just in general do you want to talk about your views on
the Violence Against Women Act and the Justice Department's
role in training and the like across the country?
Judge Garland. Yes. So as I know you know, the Violence
Against Women Act was pressed by Senator Joe Biden many years
ago, and he has a deep commitment to its continued
reauthorization, as do I. I was in the Justice Department when
we set up the first Office on Violence Against Women for the
purpose of coordinating departmental programs in this area. I
know this requires resources. Both of the examples that you
give, again, I don't know the specifics but from the
description I can hardly imagine a serious disagreement. We
have to provide the resources necessary to help rape victims,
obviously, and I don't see any reason why, you know, somebody
who commits a violent crime against a person but isn't married
or have an intimate relationship should be treated any
differently than one who does. So I think I'm all in on the
Violence Against Women, reupping the statute, authorization, I
guess.
Senator Klobuchar. Thank you. Another thing that I have
been very focused on, partly because my dad struggled with
alcoholism most of his life, and got through that thanks to
treatment and recovery, is to give that same kind of
opportunity to people in the criminal justice system. And drug
courts are a big presence in Minnesota, as is treatment. We are
the home of Hazelden Betty Ford, as well as many other fine
treatment centers. And we worked really hard here. I have led
some of the efforts on diversion with Federal courts, with drug
court, and, of course, there is much use of them on State
courts. Could you talk about your views on that?
Judge Garland. Yes. No, I think courts and diversion are an
excellent idea for people who have addiction and need to be
treated. I think now that the opioid crisis has struck large
parts of America, many Americans now understand that sometimes
it is just not a question of willpower to turn this stuff down,
that these kinds of drugs take control of your lives and you
just can't do anything about it. And treating people in those
circumstances in the criminal justice system is an abuse of
them, but also it is a terrible misallocation of resources.
So the drug courts that are able to get people into
addiction programs are a godsend, and I am in favor of them.
Senator Klobuchar. And thank you for also mentioning
opioids, which has been such a scourge. We lost Prince, in
Minnesota, because of opioids, but we lost a lot of other
people, that people may not know their names, and a lot of kids
to opioids. And, actually, Senator Whitehouse and I, along with
Senator Portman, Senator Graham has been involved in this, and
many others, including Senator Grassley, have been leading the
way for a while before people were even identifying this as an
issue. And a commitment to the treatment side of it, which you
have already made just now, but also to the prosecution of
synthetic production and distribution, synthetic opioids,
continues to this day. Could you comment briefly? I think maybe
Senator Graham asked you about this, but if you could comment.
Judge Garland. Yes, he did, and, of course, I think that is
right. The people who are putting the poison into the
communities are the ones we should be focusing on. And, you
know, I think that is what the DEA is well known for doing, and
I would like to put as much effort into this as we possibly
can.
Senator Klobuchar. Okay. I see the Chairman is looking at
me in his very polite, Midwestern way, to tell me that my time
has expired. So thank you.
Judge Garland. I am familiar with the polite, Midwestern
way.
Chair Durbin. Senator Kennedy, your diligence has been
rewarded. You have 5 minutes.
Senator Kennedy. Thank you, Mr. Chairman.
Judge, I am really curious about your thinking on this, and
I don't want my questions to be interpreted as suggestive or
inconsistent with your thinking. But you and I are about the
same age, I think.
Judge Garland. I think so. That is right, Senator.
Senator Kennedy. What is--when you refer to systemic
racism, what is that?
Judge Garland. I think it is, to me, that there is
discrimination and widespread disparate treatment of
communities of color and other ethnic minorities in this
country. They have a disproportionally lower employment, a
disproportionally lower homeownership rates, disproportionally
lower ability to accumulate wealth, a disproportionally----
Senator Kennedy. Can I stop you, because this 5 minutes
goes so fast.
Judge Garland. I am sorry.
Senator Kennedy. So you are basically saying there is a
disparate impact.
Judge Garland. There is disparate impact, which, in some
cases, is a consequence of historical patterns, sometimes is
the consequence of----
Senator Kennedy. Okay. Let me ask you this----
Judge Garland [continuing]. Unconscious bias, and sometimes
conscious, as well.
Senator Kennedy [continuing]. When you were at the
Department of Justice----
Judge Garland. Yes.
Senator Kennedy [continuing]. Was the Department of Justice
then systemically racist?
Judge Garland. I think we look for a pattern or practice in
each institution. When you talk about a specific institution,
you look for its pattern and practices.
Senator Kennedy. But how do you know what you know? In
other words, you say an institution is systemically racist.
Judge Garland. I didn't say any particular institutions.
Senator Kennedy. I know. I am not saying you did. I am
saying if you say an institution is systemically racist, how do
you know what you know? Do you measure it by disparate impact,
controlling for other factors?
Judge Garland. Well, the various----
Senator Kennedy. Or do you just look at the numbers and say
the system must be racist?
Judge Garland. Now you have asked me a slightly different
question, which I think I have a slightly different answer for.
Senator Kennedy. Okay.
Judge Garland. So the authority the Justice Department has
to investigate institutions is to look for patterns or
practices of unconstitutional conduct. And if we find a pattern
or a practice of unconstitutional conduct, I would describe
that as institutional racism within that institution. It may
not be the perfect definition, but that is what I would think.
Senator Kennedy. So it is just a product of the numbers.
Judge Garland. Well, if there is a pattern and a practice,
it is not just a question of individual numbers. What we are
looking for here, under those investigations, are patterns. Why
is it that a series of similar events are occurring like that?
Looking into any individual's heart is not something we can do.
Senator Kennedy. Who bears the burden of proving that--the
institution or the----
Judge Garland. No. No, no. Like as in all matters of law,
the burden is on the investigator to prove, first by
investigation, then before a court.
Senator Kennedy. Is there any other way to measure
institutional racism other than the numbers, the disparate
impact?
Judge Garland. Well, yes. You can look at large numbers of
individual cases in which discriminatory conduct is actually
found, intentional discriminatory conduct. Then it is not just
a question of numbers. But, you know, if an institution has a
very large number of incidents of unconstitutional conduct, the
entity is responsible in the same way a corporation is
responsible for the behavior of its individuals, the same way--
--
Senator Kennedy. What is the difference, though, between
people who are racist and an institution that is racist?
Judge Garland. Now we do have a cosmic question, but I
think institutions are made up of----
Senator Kennedy. Yes, but this is important.
Judge Garland. I know. I am fully with you. I totally agree
with that. Corporations are nothing other than the collection
of their individuals, and the same is true for a public entity,
which is, in a certain way, a corporation.
Senator Kennedy. I have got to get one more in. I am sorry.
I have got 24 seconds.
Judge Garland. I am sorry. You asked a very hard question,
and I am----
Senator Kennedy. We can talk about this later, but I want
to you ask you about this concept of implicit bias.
Judge Garland. Yes.
Senator Kennedy. Does that mean I am racist? No matter what
I do or what I think, I am a racist but I don't know I am a
racist?
Judge Garland. Okay. The label ``racist'' is not one that I
would apply like that. Implicit bias just means that every
human being has biases. That is part of what it means to be a
human being. And the point of examining our implicit biases is
to bring our conscious mind up to our unconscious mind, and to
know when we are behaving in a stereotyped way. Everybody has
stereotypes. It is not possible to go through life without
working through stereotypes. And implicit biases are the ones
that we don't recognize in our behavior. That doesn't make you
a racist, no.
Senator Kennedy. Who judges that? Doesn't the person
judging me have his own implicit bias? How do I know his
implicit bias isn't worse than my implicit bias?
Judge Garland. I agree, but I am not judging you, Senator,
and I don't know who would be judging.
Senator Kennedy. I am not asking you--but somebody, if you
say you have implicit bias, that is a pejorative statement. I
am not saying you are being mean. You are not a mean guy. That
is obvious. You are a nice guy. If you say somebody has
implicit bias, somebody has got to make that subjective
judgment, and the person making that subjective judgment has
implicit bias, if it is part of being a human, then how do you
know who wins?
Judge Garland. Fair enough. But if we say that all people
have implicit bias it is not--you shouldn't take it as
pejorative. This is just an element of human condition. So you
shouldn't take that as pejorative. Implicit bias is just a
descriptor of the way people's minds--everyone's mind works.
Senator Kennedy. How about if you say that America has
racists in it, just like everybody else, just like everywhere
else. Does that make America systemically racist?
Judge Garland. I don't want to waste your time because I
think this is what I said before. What I mean by systemic
racism is the patterns of discrimination and disparate
treatment across the country. It doesn't mean that any
particular individual is a racist.
Senator Kennedy. Judge, I am in big trouble. I have gone
way over.
Chair Durbin. I am developing a bias. Thank you for the
exchange.
Judge Garland. It is a pleasure talking with you, Senator.
Senator Kennedy. Same here, Judge. You will be a good
Attorney General.
Chair Durbin. All right. So I would like to let the
Committee know that Senator Hirono will be the next up, and
then we are going to take a break and return to 5-minute
rounds. Senator Hirono, are you tuned in?
Senator Hirono. Yes, I am. Thank you, Mr. Chairman.
I would like to ask what I think is a very straightforward
question. Over the past couple of years the Justice Department
has initiated a number of efforts related to missing and
murdered indigenous people and women, including a U.S. Attorney
that had pilot projects in Alaska and Oklahoma to implement
tailored Tribal community response plans.
To what extent do you plan to continue to focus on these
and other regional engagement efforts that could help address
the missing and murdered indigenous people crisis?
Judge Garland. Well, I certainly do intend to continue
those. Again, the last time I was in the Justice Department the
Office of Tribal Justice was established. I believe, from
looking at the org chart, that it is still there. This is an
important aspect. We have a responsibility to indigenous
peoples, both statutory and otherwise, to protect.
And, you know, many of our problems in this country are
regional, and we must focus our resources on problems that are
regional. Not every problem is a national one, and our regional
problems have to be addressed directly with respect to the
problems caused in those regions. And this is----
Senator Hirono. Thank you, Judge. Because I think this is
possibly under-reported and definitely we don't pay enough
attention to what is happening to murdered and missing
indigenous women. So I think we need to put a lot more emphasis
on this.
The past 4 years have seen a reawakening of right-wing
extremism. Last year, FBI Director Wray testified that the
greatest domestic threat, terrorist threat in the United States
is white extremist groups. And, of course, last month we had
the insurrection at the U.S. Capitol, led by white supremacists
and right-wing extremists.
Late last month, The New York Times reported that President
Trump, with the help of his Attorney General Barr, diverted law
enforcement resources from combatting the serious threat posed
by right-wing extremist groups. Will you re-prioritize Justice
Department resources to address white supremacists and other
right-wing extremists?
Judge Garland. Yes, Senator. If anything was necessary to
refocus our attention on white supremacists, that was the
attack on the Capitol, and I expect to put all departmental
resources necessary to combat this problem into this area, to
make sure both our agents and our prosecutors have the numbers
and the resources to accomplish that mission.
Senator Hirono. Thank you. My next question has to do with
immigration courts. We discussed immigration in the courts when
we were able to meet a few weeks ago, and it is worth
highlighting that under the Trump administration the backlog of
cases pending in the immigration courts has exploded to almost
1.3 million cases. That is an amazing number. In some
jurisdictions, the wait to hear a case is 4 years, and there
are cases that have been pending for more than 5 years. This
not only affects families trying to reunite but students trying
to study or train in the U.S., victims of crime who are working
with law enforcement, and members of our military trying to
adjust status.
A 1.3 million backlog. How will you address this backlog
and increase the efficiency of the immigration courts?
Judge Garland. This is an extraordinarily serious problem.
Looking from my pampered perch as an appellate judge who has a
limited number of cases and weeks and weeks to study those and
then weeks and weeks to write those, I can't imagine how judges
can operate under the conditions that you describe and that I
have heard, even from other judges, exist.
When I get into the Department, if I am confirmed, I will
certainly look into what can be done about this. I suppose this
must mean an increase in the number of resources and judges. It
must mean some ability to give to the judges, to prioritize
their cases. Even in our own appellate courts we have developed
ways in which we handle some cases more swiftly and some cases
take longer. Some cases are summarily resolved. Some require
full opinions. Some way of evaluating this is required, but I
can't give you any specific idea with respect to court
administration, which I know something about but not an
enormous amount, until I have a chance to get into the
Department, if confirmed, and understand what the cause of this
huge backlog in number of cases is.
Senator Hirono. There is an executive officer immigration
review that oversees this, but I think the really important
thing is an acknowledgement that this kind of serious backlog
has got to be addressed, because lives are at stake here.
Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Hirono. We are going to
break now and come back at 5 minutes after 3.
[Whereupon the hearing was recessed and reconvened.]
Chair Durbin. The Committee resumes and I am going to turn
to the Ranking Member, Senator Grassley: 5 minutes.
Senator Grassley. Thank you.
Judge Garland, when I talked to you on the phone, I said I
was going to give you a binder--I am not going to ask you to
come up and get it and I am not going to take it down to you,
but I will have my staff give it to you--of letters going back
to the last 2 years of the Trump administration that have not
been answered by the Department, and also maybe just a very few
letters of the recent administration.
So I hope that you will do what you can to get those
answers. So 6 months from now, I do not blame you. It is the
fact that the Trump people did not answer it.
Judge Garland. I would like to keep the blame on the--my
predecessor, yes.
Senator Grassley. Thank you.
And then I am going to say something about your answering
questions for us, and this goes back. Now that I am Ranking
Member, I want to give you a quote that I said to Senator
Sessions when he was sitting where you are.
And if Senator Feinstein contacts you, do not use this
excuse, as so many people use, that if you are not a Chairman
of a Committee you do not have to answer the questions. I want
her questions answered just like you would answer mine.
So I hope that whether I am Ranking Member or Chairman of
the Committee you will help me get answers to the questions,
and I hope Senator Durbin will do the same thing.
Judge Garland. I will not use any excuse to not answer your
questions, Senator.
Senator Grassley. Thank you.
And then the other thing is just--I do not want to dwell on
Durham, but several people have asked you and you have given
the same answer, and I understand why you give that answer.
But would it be impossible for you to have some sort of a
briefing on Durham between now and the time you get our written
answers back so you could give us a more definitive answer?
Judge Garland. So I do not think it is appropriate. I mean,
I assume, among other things, that the Durham investigation----
Senator Grassley. I will accept your answer.
Judge Garland. Okay.
Senator Grassley. You do not need to go any further.
Judge Garland. Yes.
Senator Grassley. Okay. Then let us go to a subject of
domestic terrorism, and that--and, obviously, in a democracy we
need to be able to disagree with each other without violence.
Political extremism, the willingness to use violence to
advocate one's political views on either side, is a threat to
our democracy. The Capitol attack shows us that very directly.
I think you have answered this question and so just a very
short answer. I think you have assured all of us that the
Justice Department has all the necessary resources to
investigate and prosecute all cases connected to the attack on
the United States Capitol.
Judge Garland. I cannot yet say we have all the resources.
What I said was I would--I would look into the question of
whether we--I just do not know.
Senator Grassley. Okay.
Judge Garland. But we, certainly, have--we, certainly, have
authorities to look into it. Whether we have the money and the
person power, I just do not know yet.
Senator Grassley. Okay. Then, likewise, in the previous
year, there have been numerous attacks not only on other
institutions of the Government, like the White House and the
Federal courthouse in Portland, but on hundreds, if not
thousands of police officers who were injured as well as on
fellow citizens and their businesses, particularly small
businesses.
The Justice Department opened over 300 domestic terrorism
cases due to that violence and started an anti-Government
extremism task force.
So I hope you could commit absolutely, as you did for the
Capitol rioters that you will see those investigations of the
2020 riots and continuing Antifa riots in the Pacific Northwest
through to the very end.
Judge Garland. The Justice Department--I think Director
Wray said it exactly right, which is we investigate violence.
We do not care about ideology.
Senator Grassley. Okay.
Judge Garland. If there are investigations going on like
those then, of course, they are going to continue.
Senator Grassley. Okay. And then taking off a little bit
what you referred to what the FBI said, former Attorney General
Barr noted that the FBI, while it had robust programs for white
supremacism and militia extremism, lacked a similar
infrastructure for anarchist extremism cases.
Former Acting Department of Homeland Security Secretary
Wolf stated that this may have contributed to law enforcement
being blindsided by the civil unrest that began in 2020.
So I hope that I can get you to say that you would be
willing to review your anarchist extremism program for
weaknesses and fixing those weaknesses, based upon what Barr
said that the FBI said that they had better programs to go
after white supremacy than they did other anarchist extremism.
Judge Garland. You know, I think we need to go after
violence from whatever direction--left, right, up, down. It
does not make any difference. We need to go after--go after
that.
I think what Director Wray had said was the--what he was
most concerned about was the rise of white supremacist
extremism as an element of domestic terrorism. But it does not
matter what direction it comes from. It does not matter what
the ideology is. We have to investigate it.
Senator Grassley. I guess my time is up, huh? I am going to
have a lot of questions. I am going to have a lot of questions
for answer in writing.
Judge Garland. Fair enough.
Chair Durbin. So I want to try to give an indication of the
sequence: Dick Blumenthal is going to be next, and then on the
Republican side I think it is going to be John Cornyn. Then it
will either be Senator Ossoff or Senator Booker. They can arm
wrestle till I have to make that decision.
And then Senator Cotton, I believe, you were the next
arrival. This has become kind of a little difficult to predict
a sequence. I want to make sure you see it coming.
Senator Booker. I would never want a rookie Senator to go
between Cotton and Cornyn so I will leave it there.
[Laughter.]
Chair Durbin. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman.
I want to pursue a couple of the questions that I was
asking when we ran out of time, just to say that on the issue
of climate change, President Biden, as a candidate, committed
to hold accountable the oil and gas industry for any lies or
fraud they committed in denying the effects of climate change,
and I hope you will take that into consideration in determining
what the Department of Justice will do in those kinds of cases
pursuing any kind of pollution or climate change or lies in
connection with the oil and gas industry.
And just to kind of ask a threshold question, do you have
any doubt that human beings are a cause of climate change?
Judge Garland. No. No doubt at all.
Senator Blumenthal. Thank you. You may----
Judge Garland. That was not a trick question, I guess.
Senator Blumenthal. It was not a trick question. I ask it
because the last major nominee before this Committee, back in
September--it was a Supreme Court nomination--seemed to have
some trouble with that question. But I am glad you do not.
Let me move to this--the issue of racial discrimination
which has been pursued, and I really welcome your very sincere
and passionate commitment to ending racism and racial
injustice.
We are in the midst of a racial justice movement right now.
One of the areas that most concerns me is holding accountable
public officials when they violate individual rights and
liberties.
As you know, Section 242 makes it a Federal crime to
willfully deprive a person of their constitutional rights while
acting under color of law. But prosecutors have to show that
that public official had a specific intent to deprive
constitutional rights, which as you also know, is a pretty high
bar.
I believe and I have advocated that we, in effect, lower
the state of mind requirement in Section 242 from willfully to
knowingly or with reckless disregard because this stringent
mens rea requirement makes Section 242 prosecutions rare or
impossible.
And so I hope you agree that we need to adopt measures that
will enable criminal accountability where all the elements of
the crime are committed and the mens rea intent requirement
can, in effect, fit the crime.
Judge Garland. Well, what I can agree is that I will
consult with the career lawyers in the Civil Rights Division,
who are the ones who are--would be bringing these cases and who
have brought them in the past.
I, honestly, just do not know. I know everyone says that
they are very difficult to make. On the other hand, in the
Clinton administration, we did successfully make quite a number
of those cases.
So I would like to know, from talking to them, what kinds
of changes might be necessary in the statute and what the
consequences of changing the mens rea requirement would be.
Senator Blumenthal. Thank you.
I would also like to ask you about Section 230. I proposed
various measures, one of them actually adopted in law and
signed by the President, that imposes accountability on the Big
Tech platforms for certain kinds of really horrific material,
human trafficking under SESTA, and Senator Graham and I have
led an effort--it is called the EARN IT Act--to hold
accountable the tech companies for spreading child sexual abuse
material.
I think reform of Section 230 is long overdue. I led these
kinds of targeted and, indeed, bipartisan efforts to revise
Section 230 to hold Big Tech accountable and I hope that you
will consider joining with the Congress in those kinds of
targeted deliberate efforts to reform Section 230, which no
longer fits the world that currently it applies to.
Judge Garland. So I do not know that much about 230 except
for the case I mentioned that I had worked on myself, which was
a pretty direct application of the provision. I know that a
number of Members, including you, spoke to me about this in our
meetings, and I know people have different views about how it
should be altered.
I really would have to study that. But I am very eager to
study that. There is no doubt the internet has changed from
when 230 was originally adopted.
So I would be eager and interested in studying it and
speaking with the Members about it.
Senator Blumenthal. Great. Thank you very much.
Chair Durbin. Thanks, Senator Blumenthal.
Senator Cornyn.
Senator Cornyn. Judge, are you familiar with Title 42,
which is a public health measure which restricts traffic across
the international border as a public health measure to mitigate
the spread of COVID-19? Are you familiar with that?
Judge Garland. I do not know the statute specifically. You
know, I know that there must be provisions that do that. But I
do not know the statute, no.
Senator Cornyn. Well, one of the things I hear from the
Border Patrol and Customs and Border Protection is they are
fearful that when the current Title 42 restrictions on cross-
border traffic are lifted, there will be no plan in its place
and, certainly, no transition back to normal cross-border
trade, traffic, and visit.
And this is a huge issue that I have raised with Director
Mayorkas and others as well and I just want to make sure that
is on your radar screen.
But I also want to take up what Senator Hirono was talking
about, the 1.2, 1.3 million asylum cases that are backlogged.
There is no way that the United States Government is ever going
to clear that backlog.
But I would want to suggest to you that that is part of a
conscious strategy by the cartels, who make a lot of money
moving people across the border into the United States along
with drugs, whether it is human trafficking, whether it is, as
I say, drugs, whether it is just migrants who are trying to
flee poor economic circumstances and dangerous conditions in
their home country.
But if the Biden administration is not going to enforce
current laws with regard to immigration, and there are many
people suggesting, including the nominee for Health and Human
Services, that we ought to give free health care to people who
are not legally in the country, all of this is going to be a
huge incentive for more and more people to immigrate illegally
into the United States. And, obviously, the Department of
Justice has a very important role to play there.
But I want to suggest this is not an accident. This is not
a coincidence. This is part of a conscious strategy by the
cartels who are enriched by each and every person, each and
every load of drugs, that comes across the border.
And I hope that you will commit to working with me and all
the other Members of Congress to try to address this
humanitarian and public health crisis in addition to the other
aspects of immigration.
Will you agree to do that?
Judge Garland. Certainly, I will commit to working with
Members of Congress to address the public health crisis. I have
to say I was not aware that the cartels were doing this, but
this seems like something that the Justice Department needs to
focus on.
Senator Cornyn. Well, at different times it is referred to
as transnational criminal organizations, cartels. Basically, it
is people who are engaged in criminal enterprises for money.
That is why they do it. They care nothing about the people that
they leave, some to die en route to the United States. All they
care about is money. So I appreciate your willingness to work
with me and others about that.
China, and Russia, to a lesser extent, have perfected cyber
espionage on the United States, for many reasons but in part to
steal our intellectual property. The billions of dollars that
Congress appropriates for development of the next generation
Stealth Fighter to nuclear modernization, you name it, if the
Russians and the Chinese can get it without making those
investments and the years-long delay necessary to roll them
out, they have a tremendous advantage in terms of competing
with us economically and also militarily.
Eighty percent of all economic espionage cases brought by
the Department of Justice involved Communist China and there
are at least some nexus to China in about 60 percent of all
trade theft cases.
I have told people that Director Wray, who is a pretty
stoic individual, gets positively animated when he begins to
talk about the role that China is playing in its rivalry with
the United States, both from an economic standpoint, and if you
look at the South China Sea and some of its aggressive and
boisterous actions there with a potential for military conflict
at some future, this is our number one challenge, I believe,
today, as we speak here.
Do you share my concerns about China's role as a rival in
the world, what they are doing in terms of stealing
intellectual property, what that means to us economically and
from a national security perspective?
Judge Garland. Senator, I do not have any inside
information with respect to what the intelligence agencies
know. But I have read quite a lot about this and I am--it seems
quite clear to me that the Chinese are involved in hacking, of
stealing our intellectual property.
We are in an age where individual espionage prosecutions do
not quite cut it, given the internet and how so much can be
stolen in just a single hack.
So this has to be an all of Government response to this
problem. There has to be a forward look as to what is happening
to us. There has to be a defensive look.
I know that that is the purpose of Cyber Command. That is,
certainly, something that the DNI is very concerned about, and
then, of course, the FBI with respect to enforcement.
But this is a dangerous problem for all the reasons you
said and it requires a whole of Government response.
Senator Cornyn. Thank you.
Chair Durbin. Thanks, Senator Cornyn.
Based on who is present and apparently interested, it will
be Senator Booker, Senator Cotton, Senator Ossoff, Senator
Hawley. Those are the ones I see.
So, Senator Booker.
Senator Booker. Thank you very much, Mr. Chairman, and
thanks for the grace of Senator Ossoff for allowing me to go
before him.
I would love to just jump in real quick, if I may, and a
lot has been talked about your incredible work with the
Oklahoma City bombing, but I am also aware that you have a long
record of working on domestic terrorism in pretty significant
ways.
In the mid 1990s, in response to a wave of bombings and
arson attacks against Black churches in the South and other
houses of worship, the Clinton administration formed a national
task force where you and your leadership, along with others,
helped to make this Justice Department priority, resulting in
several hundred investigations and arrests, and I just really
appreciate the totality of your record on fighting domestic
terrorism.
I do just, really quickly, just wonder, just in terms of
proportionality, since that time till now, we have seen just
this rise of right-wing terrorist attacks in our country.
In fact, since 9/11, the majority of domestic terrorist
attacks have been right-wing extremist groups. The majority of
those have been white supremacist groups.
And I am just hoping, and again, you are not in the
position, God willing you will be, but just the proportionality
of the resources we are directing toward trying to stop the
scourge of domestic terrorism, is this something that you will
look at in terms of the degree of the resources of the agency?
Judge Garland. Yes. As I say, I think the first thing I
should do as part of my briefings on Capitol bombing or
briefings with Director Wray as to where he sees the biggest
threat and whether the resources of the Bureau and of the
Department are allocated toward the biggest threat and the most
dangerous and direct threat.
We do have to be careful across the board. We can never,
you know, let somebody sneak around the end because we are not
focusing but we also have to allocate our resources toward the
biggest threat.
Senator Booker. Great. And I would like to shift back to
marijuana. In an earlier conversation we were talking about the
systemic racism there that has--I have watched tons of friends
in elite colleges not worrying at all about being arrested for
marijuana while the inner city Black and Brown community I live
in, too--it is a much different reality, much different set of
laws applying to them.
But I actually want to get to the good news, I think, in
the United States of America is that red States, blue States,
America in general, if you want to call those States that way--
American States are moving toward more and more legalization,
medical marijuana, loosening up of laws, decriminalization. It
is an amazing thing.
But the Federal Government is out of step with that right--
as of now, and I hope to work in a bipartisan way to see if we
can advance the Federal Government maybe to de-list the
legislation, think of some restorative justice elements. Just
today, New Jersey signed its first major effort at legalization
and restorative justice.
But one thing that was done by the Obama administration was
putting forward a--the Cole Memorandum, as I am sure you are
aware.
But Attorney General Jeff Sessions rescinded the Cole
Memorandum, which gave guidance to U.S. Attorneys that the
Federal marijuana prohibition should not be enforced in States
that have legalized marijuana in some form.
And so do you think that the guidance in the Cole
Memorandum to deprioritize marijuana enforcement should be
reinstated? That is, should the Justice Department respect
States' decisions on marijuana policy?
Judge Garland. So I do not have every element of the Cole
Memorandum in mind, but I do remember it and I have read it.
This is a question of the prioritization of our resources and
prosecutorial discretion.
It does not seem to me a useful use of limited resources
that we have to be pursuing prosecutions in States that have
legalized and that are regulating the use of marijuana, either
medically or otherwise. I do not think that is a useful use.
I do think we need to be sure that there are no end runs
around the State laws that criminal enterprises are doing. So
that kind of enforcement should be continued. But I do not
think it is a good use of our resources where States have
already authorized it and it only confuses people, obviously,
within the State.
Senator Booker. So real quickly, the violence against Black
trans Americans is unconscionable with many murders every
single year, the bullying and violence against a lot of trans
children. About a third of LGBTQ American children report
missing school because of fear, fear of violence, and
intimidation.
Is this something that you will make a priority, to protect
all children from violence and discrimination, particularly in
this case, transgender children and--transgender children and
would you also commit to taking seriously the targeting of
transgender adults, specifically with the trend we are seeing
with the alarming numbers of murders of Black transgender men?
Judge Garland. These are hate crimes, and it is the job of
the Justice Department to stop this, to fine them, to enforce
and to penalize, and that is what the section of the special
litigation unit in the Civil Rights Division is intended to do.
There is the Shepard-Byrd Act, which was particularly aimed
at this, and I think it is--I am not sure whether it needs
broadening. But it is clear to me that this kind of hateful
activity has to stop and, yes, we need to put resources into
it.
Senator Booker. Thank you for your time. I look forward to
voting for your confirmation and I am going to stop here
because I do not want to make Tom Cotton mad at me.
[Laughter.]
Chair Durbin. So the remaining Senators for 5 minutes
each--Senators Cotton, Ossoff, Hawley, and now Senator
Whitehouse is going to make a return.
Senator Cotton.
Senator Cotton. Judge, I want to return where you stopped
this morning, the question of racial equality, specifically,
race discrimination in higher education.
Last year, the Department of Justice sued Yale University
for discriminating against students on the basis of race based
on Yale's own data.
If you look at one of its top academic categories, when you
control for academic achievement, the admission rates by racial
category were as follows: Asian Americans 6 percent, white
applicants 8 percent, Hispanics 21 percent, African Americans
49 percent.
Do you think that evidence suggests discrimination based on
race in Yale's admissions process?
Judge Garland. So again, my best recollection is that
between my nomination and now the Department has made a
decision about that----
Senator Cotton. The case was voluntarily dismissed on
February 3rd. It is no longer a pending case.
Judge Garland. So my recollection is correct. So these kind
of cases, obviously, depend on application of the Supreme
Court's opinion in the Grutter case and the Fisher case, and
they require a lot of factual development and examination of
the facts.
These cases do not only depend on the disparate statistics,
but on all the factors the Supreme Court instructed the lower
courts and the Government as to what kinds of affirmative
action in higher education are permissible and which ones are
not.
So I cannot--I, honestly, cannot draw any conclusions
without knowing the facts of the case.
Senator Cotton. Some of that Supreme Court case law about
racial discrimination in higher education says that race can
only be used as a plus factor. It cannot be decisive in
practice. It cannot be a defining feature. It cannot be the
predominant factor.
When Asian-American kids are eight times less likely to be
admitted in the same band of academic achievement, you do not
think that at least suggests a facial case of racial
discrimination of Asian Americans?
Judge Garland. Well, I think that is the question that you
look at for the underlying facts to know. You are, I think--I
do not remember exactly the words of the Supreme Court
opinions, but they seem pretty much exactly, you know, what you
just said.
You cannot have a rigid quota. You cannot have a fixed--
this was the consequence of the Gratz case, which was a
companion case to Grutter. Grutter was the University of
Michigan law school. Gratz was University of Michigan as a
university.
With respect to Grutter, the Court said it was a holistic
approach and was permissible. With respect to Gratz, it said it
was a fixed ratio or a fixed number and not permissible.
But those are things you find out by discovery in the case
and examination of what the actual practices of the university
were, and I have no idea what they were.
Senator Cotton. Judge, did anyone in the Biden
administration consult with you about the decision to drop the
lawsuit against Yale University?
Judge Garland. No. No, I have assiduously kept out of
those. It is not my--it is not appropriate for me to be
examining anything like that, unless you confirm me.
Senator Cotton. Will the Department of Justice, under your
leadership, pursue cases of obvious racial discrimination in
higher education?
Judge Garland. Well, if you put it that way, the answer is,
of course, yes. Obvious cases----
Senator Cotton. I think this presents an obvious case of
discrimination against Asian Americans. I suspect some Asian-
American parents and their kids are a little disappointed in
those answers, Judge.
I want to turn to the----
Judge Garland. I just want to say I am only giving the
answer to what the Supreme Court said the law was. I cannot do
any better than that.
Senator Cotton. Eight times less likely to be admitted?
Judge Garland. All I--my answer was you have to look at the
facts in----
Senator Cotton. Okay. I want to turn to another very
important topic, which is the rising rates of violent crime in
the country. According to FBI's crime statistics, only 45
percent of violent crimes in this country result in an arrest.
Would it be better or worse if 100 percent of violent
crimes in this country resulted in arrest and prosecution
instead of just 45 percent?
Judge Garland. It would be better if you gave--if Congress
gave the Department enough money to arrest every single person.
I assume you are talking both about State crimes and Federal
crime?
Senator Cotton. That is according, yes, to Department of
Justice, FBI crime statistics. So those 45 percent.
Judge Garland. So those are--almost all or a large
percentage you are talking about local crime. So yes, it is
better to----
Senator Cotton. Do you think the Department today solves
too many crimes or prosecutes too many criminals?
Judge Garland. The Justice Department?
Senator Cotton. Yes.
Judge Garland. I think it may bring charges in areas which
are not a good allocation of its resources, but I do not think
it has sufficient resources, and probably never will, to pursue
every crime. That seems impossible.
Senator Cotton. One final point, Judge. I just want to get
it on the record. We spoke about this last week in our
telephone call about the importance of State and local law
enforcement to work together in a collaborative and cooperative
fashion with the Department of Justice, both its local U.S.
Attorneys and the law enforcement agencies that you oversee.
I was glad to know that you agree with me those
partnerships are vital to reduce crime and keep our communities
safe. I just wanted to give you the chance to put that on the
record today.
Judge Garland. Yes, absolutely. You know, my experience in
Oklahoma City was with close cooperation with the DA's office,
the local police there, and with the governor and with the
State police.
I think these joint task forces are an exceedingly good
idea. They are a force multiplier. So I am completely on board
with this. Yes, sir.
Senator Cotton. Thank you, Judge.
Chair Durbin. Senator Ossoff.
Senator Ossoff. Thank you, Mr. Chairman.
Hi again, Judge Garland.
I want to return to the question of the Department's
authorities and mission to defend voting rights, and note that
Sunday would have been Congressman John Lewis' 81st birthday.
And as you know, he committed his life and, indeed, nearly lost
his life in the struggle for voting rights.
But as we speak, Georgia's State legislature is considering
legislation that would make it harder for Georgians to vote,
for example, to end Sunday early voting, which is used heavily
by Black and working class voters, to cut the window during
which voters can participate via absentee ballot, which would
make it harder for seniors to vote.
And I am not asking you to comment on these specific bills.
But what I am hoping you can provide is an assurance that the
Department of Justice will diligently and fully enforce
constitutional and statutory guarantees of the rights to vote.
Judge Garland. I give you my complete assurance. Yes,
Senator.
Senator Ossoff. Thank you so much. I would also like to
discuss with you resources available for public defenders'
offices around the country, and a visit to a municipal court in
any major American city will reveal that a steady stream of
low-income defendants lacking the resources to hire their own
attorneys are often represented by overworked and under-
resourced public defenders, which contributes to class and race
bias in the justice system, and, in my view, is an affront to
the constitutional guarantee of due process as well as of equal
protection.
So will you work with my office and this Committee to
determine whether grant programs, which may already exist at
the Department to support local public defenders' offices or
which may need to be created, can be considered in legislation
that this Committee and the Senate may consider?
Judge Garland. I will, Senator. There is no equal justice
in the United States unless everybody has equal access to
justice. My own experience, our Federal Public Defender's
office is terrific. It needs resources, the Federal Public
Defenders across the country.
I have tried my best when I was in an administrative
position to provide as many resources as possible. The same for
our lawyers who volunteer under the Criminal Justice Act. The
difference between having an excellent lawyer and not can make
all the difference in the world, and I think we should give all
the resources that we can.
And with respect to the local courts and local public
defenders, it would have to be through grant programs, but of
course, to the extent Congress is willing, I am strongly in
favor.
Senator Ossoff. Well, I appreciate that answer and I look
forward to working with you, I hope, and the Chairman and
Ranking Member on those grant programs.
And, finally, I want to return to the discussion that we
had earlier about pattern-or-practice investigations, and I
just want to urge you that if you were confirmed and as you
take this office, and there will be so many demands on your
time and your attention and important missions for the
Department to fight violent crime and to defend our national
security, that you personally exercise leadership within the
Department to ensure that the Civil Rights Division's mission
is elevated and emphasized and that you come to this Committee
to seek and secure any resources that you need to make that
real.
And just to illustrate why I believe that is so important,
the South Fulton jail in my home State of Georgia has been
known to the public for years to have appalling conditions for
incarcerated people.
And actually, in the last month, a Federal court ordered
changes to practices within the jail. But it was after years of
litigation. The U.S. Attorney's Office did file a brief in the
case but the litigation was brought by independent nonprofit
plaintiffs. Years it took for changes to be ordered by a
Federal court.
I am going to read you a quote from the plaintiff's brief
to illustrate the conditions in this jail, and I want to warn
the public viewing this on television that the material is
graphic.
Quote, ``The cells were covered in bodily fluids, rust, and
mold. In these conditions, the inmates deteriorated, leaving
them incoherent, screaming unintelligibly, laying catatonic,
banging their heads against walls and repeatedly attempting
suicide.''
This refers to the solitary confinement of women with
severe psychiatric disorders in the South Fulton Jail in
Georgia, and these conditions are not unique to this facility.
So I want to urge you and ask you one more time, please,
respectfully, Judge Garland, your commitment to elevate this
mission within the Department and to work to secure the human
rights of incarcerated people and the American public with all
of the power you will have in this position.
Judge Garland. You have my commitment. The Civil Rights
Division has responsibilities and some authorities in this
area, and so is quite capable of pursuing these kinds of cases.
I took to heart what the Chairman said with respect to the
role that Robert Kennedy played when he was the Attorney
General and I regard my responsibilities with respect to the
Civil Rights Division as at the top of my major priorities
list. So you have my commitment to do everything I can in this
area.
Senator Ossoff. Thank you. And just with the Chairman's
indulgence, Judge, will you commit to reviewing any materials
that are sent to you by Congress or by entities such as the
NAACP or the Southern Center for Human Rights where it pertains
to conditions of incarceration?
Judge Garland. So that I have some time to be able to read
everything that I need to read, if it is all right with you, I
will commit to being sure that the head of the Civil Rights
Division and the Associate Attorney General, Ms. Clarke and Ms.
Gupta, who are directly responsible, do that and then brief me
about it. I will to the extent possible read them myself. But I
have already committed to reading a 400-page document and there
are only so many hours in my day.
Senator Ossoff. Understand. The Department's condition is
what I am looking for. So thank you so much.
Thank you, Mr. Chairman.
Chair Durbin. Senator Hawley.
Senator Hawley. Thank you, Mr. Chairman.
Judge Garland, I would like to talk a little bit more about
the law enforcement challenges at the border, which I know a
number of other Members have brought up with you.
Just a fundamental question. Do you believe that illegal
entry at America's borders should remain a crime?
Judge Garland. Well, I have not thought about that
question. I just have not thought about that question. I think,
you know, the President has made clear that we are a country
of--with borders and with a concern about national security.
I do not know of a proposal to decriminalize but still make
it unlawful to enter. I just do not know the answer to that
question. I have not thought about it.
Senator Hawley. Will you continue to prosecute unlawful
border crossings?
Judge Garland. Well, this is, again, a question of
allocation of resources. The Department will prevent unlawful
crossing. I do not know--you know, I have to admit I just do
not know exactly what the conditions are and how this is done.
I think if--I do not know what the current program even is
with respect to this. So I assume that the answer would be yes.
But I do not know what the issues surrounding it are.
Senator Hawley. Let me ask you about the guidelines on
asylum eligibility issued as part of the Executive Office of
Immigration Review. Your predecessors have issued quite a
number of guidelines about asylum eligibility. Several
Senators, Senator Hirono, I think Senator Cornyn, talked about
the very significant backlog that we have currently in asylum
cases.
Will you continue to use--keep in force the current
guidelines on asylum eligibility or do you anticipate changing
them?
Judge Garland. Again, given my current professional
occupation, I have had no experience whatsoever with the
guidelines. So I cannot give you a direct answer to that
question.
Asylum is part of American law, and the Justice Department
and the State Department have an obligation to apply that law.
I do not know what the guidelines are that you are talking
about and I do not know even about the rescissions of
guidelines that you are talking about.
Senator Hawley. Will you--if confirmed, I am sure that you
will be reviewing this and considering these questions--will
you pledge to keep us fully posted as you do so?
Judge Garland. Yes, if there was a change in the Government
policy, if I am confirmed, of course, there will be a public
change because you cannot apply those kind of guidelines
without making them public.
Senator Hawley. Let me turn to the subject of antitrust. I
heard your answer to Senator Blackburn about the ongoing Google
antitrust prosecution. I believe your answer was you did not
anticipate any changes in that ongoing prosecution, that the
case would go forward.
Did I hear you correctly? Is that right?
Judge Garland. I do not want to talk about a pending case
because it is, after all, a pending case and that is just what
a judge cannot talk about.
But as with most of our investigations, I will--you know,
when I get in, if I am confirmed, I will examine them. But I do
not have any reason to think that I would stop that kind of
investigation.
Senator Hawley. Recent news--recently, news outlets,
various news outlets, have reported that Susan Davies is being
considered to lead the DOJ antitrust division.
Susan Davies, of course, has defended Facebook from Federal
antitrust laws. Facebook has been another target of antitrust
scrutiny. Do you think it is appropriate to have someone who is
a defender of these massive corporations leading the Antitrust
Division?
Judge Garland. Let me say a number of things in response to
this.
First of all, the Department has recusal rules, which
prevents somebody who had a role from taking a role in a case
like that.
Susan Davies is a fantastic lawyer, a woman of enormous
integrity, and I have every confidence that were she in that
division that she would proceed as completely appropriate.
But it turns out that the Press reports are completely
incorrect. So----
Senator Hawley. She is not under consideration?
Judge Garland. No, not that I know--not that I know of, no.
Senator Hawley. Oh, and is not going to be, to the best of
your knowledge? I assume it would be your decision.
Judge Garland. I do not--look, I do not think either she or
I have aspirations for her to be in the Antitrust Division.
So I am not exactly sure where this came from. But she is a
woman of remarkable ability who has helped me in my previous
role and I would be very eager to rely on her good judgment and
her--and a woman of strong ethical judgment.
So if she were in a position, any position anywhere in the
Department, she would know when to recuse or not. But this
particular issue, she is not--as far as I know, she is not
going to be in the Antitrust Division, not because she wanted
to be or I wanted her to be in there and because somebody said
she could not.
Senator Hawley. Good. Well, I think that is news, I think,
and welcome news and I just want to register my own point of
view here, which is I think that the--recusal or not, the
message it would send, the Google case is perhaps the most
significant antitrust case the Department has undertaken since
Microsoft, easily may be more significant than that, because
Google, frankly, is significantly more powerful than Microsoft
was.
The message it would send, to have a lawyer defending these
massive companies in the Antitrust Division would be terrible.
Judge Garland. Well, I do not know who would send this
message or why this message was being sent. But there is no--I
do not have any intention of this. But I am confident that had
this been the case, this would not be a problem.
You know, unfortunately or fortunately, a lot of the best
antitrust lawyers in the country have some involvement one way
or another in some part of high tech, and we cannot exclude
every single good lawyer from being able to be in the division.
But that is not an issue. Nothing you need to be concerned
about.
Senator Hawley. Thank you. Thank you, Judge.
Thank you, Mr. Chairman
Chair Durbin. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman.
Judge Garland, I want to go back to the topic of protecting
the Department of Justice from political influence and being
weaponized politically.
A number of Senate Democrats at this hearing have used the
opportunity to cast aspersions to the job Bill Barr did as
Attorney General. I think those aspersions are false. I think
he showed enormous courage in fighting to defend the rule of
law.
But Bill Barr, when explicitly asked about whether he would
terminate Robert Mueller, at his confirmation hearing, the same
situation you find yourself, he said he would not terminate him
absent, quote, ``good cause.''
Are you willing to meet the same standard of integrity that
Bill Barr demonstrated and will you make that same commitment
to this Committee that you will not terminate Mr. Durham absent
good cause?
Judge Garland. What I have said to the Committee and what
is, is that I need to get information about this investigation,
which I do not have here. I understand that a decision has been
made to keep him in place, and I have absolutely no reason to
doubt that that was the right decision and that he should be
kept in place.
But I cannot go any further without learning the facts of
the investigation and what the status is.
Senator Cruz. So, Judge Garland, with all due respect, and
I recognize you have been a judge for 23, 24 years, judicial
nominees sit in that chair and decline to answer just about
every question Senators pose to them, saying, ``Well, as a
judge, I cannot commit to how I would rule on any given case.''
And that is appropriate. You are not nominated to be a
judge in this position. You are nominated to an executive
position, and you are a constitutional scholar. You understand
fully well the difference between Attorney General versus an
Article III judge.
Bill Barr did not know the details of the Mueller
investigation at the time, but he knew that Bob Mueller was
investigating President Trump, that it was highly politically
sensitive.
And so to show his integrity and commitment to being
nonpartisan, he said he would not terminate Mueller absent good
cause. You have the opportunity to do the same thing. The
investigation into Durham is highly political. It, potentially,
implicates Joe Biden and Barack Obama.
And I just want to be clear. You are refusing to give that
same commitment. You want to keep the options open to terminate
the investigation.
Judge Garland. Look, I am not refusing to give that
commitment because I am a judge. I am telling you what I think
an Attorney General ought to do, which is to look at the facts
before making a decision.
I am also telling you that I will never make a decision in
the Department based on politics or on partisanship. So
whatever decision I were to make, it would not be based on
that.
And all I can ask you to do is trust me based on a record
of my 24 years as a judge, my entire career before that as a
prosecutor, and my life before that. That is my record of
integrity and that is what you have before you.
Senator Cruz. So a similar line of questions that you were
asked concerned the Google antitrust investigation, and
Google--Big Tech as a whole contributed over $15 million to the
Joe Biden campaign.
They are enormously important Democratic donors. There will
be enormous political pressure to abandon that case against
Google.
Can you give this Committee assurances that you can stand
up to that political pressure just because Democratic
fundraisers want to be lenient on Google? That the Department
of Justice will not give in to that pressure?
Judge Garland. So, Senator Cruz, I am old enough to
remember when there was a political effort to end the case in
the antitrust case in the Justice Department against ITT, which
gives you an idea of how old this is, that there is no ITT
anymore, the International Telephone and Telegraph Company.
This--if I am not wrong, this was one of the paragraphs in
the indictment, the proposed indictment of impeachment of
President Nixon, I think, but it was around the same time, and
it had to do with the partisan effort to influence the Justice
Department in that Antitrust Division.
I grew up knowing that this is not something that is
permissible for the Justice Department to do, and my whole life
has been in looking at Ed Levi and the post-Watergate Attorneys
General who stood up to that kind of stuff.
And I can assure you that there will--I do not care what
kind of donor talks to me about what--of anything. I do not
expect to talk to any donors. I have no conflicts. I do not own
any Google stock and I will do whatever is the right thing, and
I do not own any stock, or I won't, once--if I am----
Senator Cruz. Let me ask two very quick questions, because
my time is expiring.
Judge Garland. Yes.
Senator Cruz. Number one, you voted to rehear the Heller
case--or actually, the Parker case en banc.
Judge Garland. I did.
Senator Cruz. I argued the Parker case on the D.C. Circuit.
As Attorney General, will the Department of Justice argue for
the Supreme Court to overturn Heller v. District of Columbia?
Judge Garland. Look, the Department, you know, makes all
kinds of judgments like that. I cannot promise but I find it
hard to believe that the Department could think that there was
any possibility of overturning the Heller case.
Senator Cruz. Okay. And then the final one, with the
Chairman's indulgence because I am at the end of my time.
Judge Garland. Yes.
Senator Cruz. Nine Senators wrote a letter to Chairman
Durbin asking this Committee to investigate Governor Andrew
Cuomo's policies concerning COVID and sending COVID-positive
individuals into nursing homes. A senior aide of his admitted
to a cover-up to hide information from the Department of
Justice.
You have committed to a number of investigations here at
this hearing today. Will you commit to investigating the extent
to which the government of New York broke laws or covered up
their policies concerning COVID-positive patients in nursing
homes?
Judge Garland. With all of these investigations, the
Justice Department is open to evidence of fraud, false
statements, violations of the law. They normally begin in the
appropriate way in the U.S.--relevant U.S. Attorney's Office,
and that is a way that something like this--without commenting
on this in particular, because I do not know the facts, that is
the way it should go.
Senator Cruz. But in this instance the acting U.S. Attorney
is the mother-in-law of a senior official in the Cuomo
administration that admitted to the cover-up.
Will you at least commit to not having the investigation
done by a person with a conflict of interest?
Judge Garland. Of course. I do not know any of the facts.
But I can guarantee you that somebody with a conflict of
interest will not be the person running an investigation of any
kind.
Senator Cruz. Thank you.
Chair Durbin. Since it has appeared, reappeared, and then
appeared again, this question about the Durham Special Counsel,
for the record, the President of the United States and the
White House, when they reported their policy on the future of
U.S. Attorneys, made two exceptions, if I remember correctly.
One was for the Delaware U.S. Attorney and the second one was
in this situation with Durham.
The administration has, clearly, committed publicly to
allowing Durham to complete his investigation. I do not know
that any additional comments are needed beyond that, though you
have been asked many, many times that question.
In terms of Attorney General Barr, we do remember that he
wrote an unsolicited memo questioning the legitimacy of the
Mueller investigation before he was under active consideration
for the Office of the Attorney General.
I do not know why the other side keeps returning to this.
But I think your position is consistent with the White House
position and is what we would expect of any Attorney General
when it comes to making an assessment after they learn the
facts.
Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman, and, am I the
final questioner? Could be.
So I may be all that stands between you and relief from
these proceedings, your Honor.
[Laughter.]
Senator Whitehouse. I would summarize our earlier
conversation as you telling us that when we ask you questions
or the Department or the FBI questions, we are entitled to an
answer, and if the answer is ``no, we cannot tell you that,''
we are entitled to an explanation as to why you think that. Is
that correct?
Judge Garland. Yes, that is right, Senator.
Senator Whitehouse. Good. I touched on the problem of
Executive privilege because the Department of Justice has a
role as kind of an arbiter for the whole administration of
Executive privilege determinations.
We had documents sent in here blank, that had the phrase
``constitutional privilege'' stamped on them. No articulation
of what constitutional privilege it was.
We have had witnesses claim to assert Executive privilege,
but the administration never backed them up by actually
asserting the privilege. So there was never actually a test of
the proposition.
But our Chairman would not force an answer. So we were
stuck. And I urge you to--maybe we should even have a hearing
on it--think through what Executive privilege ought to look
like, what the process for declaring it ought to look like, and
try to get that cleared up so that in this Committee we are no
longer being treated the way we were in the last
administration.
You mentioned that false statements were a way that cases
kind of traditionally came in, went to the U.S. Attorney first,
worked their way up. There is one sort of strange anomaly,
which is false statements to the IRS.
The administration before this one took the view that a
false statement to the IRS was something that they would not
look at unless it had been referred by the IRS. So I get the
policy of not getting into criminal investigations of tax law
without the IRS saying, hey, we would like you to prosecute
this. We are the tax law experts and we really--we have some
equities here and why they want you or do not want you to
proceed criminally in this matter.
I get that. When it is a plain vanilla false statement--I
did that as U.S. Attorney, you did those cases, anybody who
served in--as a U.S. Attorney has done those cases, I would
urge you to reconsider a policy of deferring to the IRS before
proceeding on a simple false statement case. Obviously, it will
be fact specific, but I flagged that for you.
And the last point I would like to make is that it seems to
me, and I will ask you to agree or disagree with the statement,
it seems to me that failing to proceed--failing to proceed
where an investigation or a prosecution is warranted and doing
so on political grounds is just as bad as proceeding with an
investigation or prosecution on political grounds.
Would you agree that that is a correct proposition?
Judge Garland. Yes, of course. Absolutely.
Senator Whitehouse. Last of all, we all need something to
believe in, I think. People who worked in the Department very
much believe in the Department of Justice. They believe in the
merits and the norms and the values and the traditions of their
service and of the Department. People across this country need
to believe, and there was a lot that happened in the last
administration to cause doubt about whether the Department of
Justice met that standard, if they were worthy of the public's
trust and belief.
Let me ask you with your closing comments to respond to how
you view the importance of the public's trust and belief in the
Department of Justice, and your commitment to salvaging, if
necessary, restoring as needed, and upholding those ideals.
Judge Garland. Yes. Look, I could not agree with you more.
It is not just that the Department has to do justice, that it
has to appear to do justice and that the people of the United
States have to believe that it does justice.
Otherwise, people lose their faith in the rule of law. They
take the law into their own hands if they become cynical about
law enforcement, about public servants.
I would like for the time that I am in the Justice
Department to turn down the volume on the way in which people
view the Department, that the Justice Department not be the
center of partisan disagreement, that, you know, we return to
the days when the Department does its law enforcement and
criminal justice policy, and that this is viewed in a
bipartisan way, which for a long time in the history of the
Department that is the way it was.
I know that these are divisive times. I am not naive. But I
would like to do everything I can to have people believe that
that is what we are doing.
People will disagree. People on the left side, the right
side, the Democratic side, the Republican side, will disagree
with things that I do, and that has happened as a judge.
The only thing I can hope is that people will understand
that I am doing--I am doing what I do because I believe it is
the right thing and not out of some improper motive. That is
the best I can ask.
And if you confirm me and if at the end of my time people
still believe that, I will consider that a singular
accomplishment.
Senator Whitehouse. Godspeed to you, sir.
Chair Durbin. Judge Garland, I am going to say a few words
about what the Committee is going to do tomorrow in pursuit of
your nomination, and then a few closing comments.
Tomorrow, the second day of the hearing begins at 10 a.m.
We will hear from a panel of outside witnesses. Reminder that
questions for the record from the Senators on the Committee
must be submitted by 5 p.m. on Wednesday, February 24th.
I hope people will show good faith and common sense in the
number of questions that they submit because you have been open
now for two full rounds to ask whatever people have had on
their minds.
Let me say a few words in closing. My appreciation of your
background is a little different than some. I know one of your
earliest inspirations was a man named Abner Mikva, who
proceeded to serve with distinction all three levels of
Government in the Federal branch as well as his initial service
in the Illinois House of Representatives.
One of his closest friends and allies and colleagues over
the years was a man named Paul Simon, who picked me up and
dusted me off a few times when I lost elections and said, ``You
will get them next time.''
He was right. I eventually did but took a while. I knew
Abner Mikva personally, and through his relationship with my
mentor, Paul Simon, they represented the very best in public
service--integrity, honesty, hard work, all of the above, time
and again.
We are lucky to be heirs of that legacy, and I think that
that has inspired both of us in our different pursuits of
public service.
When President-elect Biden told me that you were under
consideration for this job, I thought instantly, this is the
right person. At this moment in history, this is the right
person to put in as Attorney General.
The Department of Justice needs to have its morale
restored. It needs to have its reputation restored. It needs
leadership that is honest and we can respect from every corner
of this country.
You are that person. Your testimony today is evidence of
that. I want to thank your family in particular. I do not know
that they have--you mentioned but it is well worth repeating.
Lynn, thank you for being here. Rebecca and her husband,
Alexander. That would be Becky and Xan. And Jessica--Jessie,
thank you for being here today in support of an extraordinary
person who is ready to serve again in his being called by the
President to be there at a moment in history when he is needed
the most.
This President has put faith in you, Judge Garland. We will
do the same. Thank you again. I look forward to your swift
confirmation.
And with that, the hearing stands adjourned until 10 a.m.
tomorrow.
[Whereupon, at 4:06 p.m., the hearing was recessed.]
[Additional material submitted for the record for Day 1
follows Day 2.]
CONTINUATION OF THE
CONFIRMATION HEARING
ON THE NOMINATION OF
HON. MERRICK BRIAN GARLAND
TO BE ATTORNEY GENERAL
OF THE UNITED STATES
----------
TUESDAY, FEBRUARY 23, 2021
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in Room
216, Hart Senate Office Building, Hon. Richard J. Durbin, Chair
of the Committee, presiding.
Present: Senators Durbin [presiding], Whitehouse, Coons,
Blumenthal, Booker, Grassley, Cornyn, Lee, and Tillis.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. This hearing will come to order.
Yesterday, Senators from both sides of the aisle asked
Judge Merrick Garland about his ability to rebuild the
independence of the Justice Department and restore its
integrity so the American people know that the Nation's top law
enforcement officer is working for them. I believe the Judge
made it clear that he is the right person to lead the Justice
Department at this moment in history. He will ensure that the
Department meets the critical challenges facing America.
Throughout his career at the Justice Department and as judge on
the D.C. Circuit, Judge Garland has demonstrated that he has
the experience, judgment, independence, and dedication to
public service necessary to excel as Attorney General. I am
sure today's testimony will further illustrate the Judge's
qualifications.
Today, we welcome five witnesses who are supporting Judge
Garland's nomination to be the 86th Attorney General. Each will
offer a different perspective on Judge Garland and the
experience and talent he would bring to that role. I will
introduce the majority witnesses, then I will turn to Ranking
Member Grassley to introduce the minority witnesses.
Our first witness in the majority is Wade Henderson. He was
the CEO of--is the CEO of the Leadership Conference on Civil
and Human Rights, served in that position from 1996 to 2017,
currently back serving as their interim president. The
Conference consists of more than 220 national organizations
working to ensure equality under the law. Mr. Henderson can
speak to many issues facing the Justice Department, such as the
right to vote and reform of the criminal justice system.
Andrea Tucker is a special witness, and I thank her for
joining us today. She is a native of Washington, DC, and the
mother of three children who are in the DC Public Schools
system. Judge Garland tutors her twins, who are now in the
sixth grade. Ms. Tucker can speak to and give us valuable
insight into the Judge's character and his dedication to the
community.
Donna Bucella has held many public service roles across the
Federal Government from the U.S. Army Judge Advocate General
Corps to several positions in the Department of Justice. She
worked closely with Judge Garland when he led the investigation
of the Oklahoma City bombing, and she is going to share that
experience with us.
Ranking Member Grassley, would you like to introduce your
other two witnesses?
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Yes, I would.
Ken Starr is an attorney, academic, and public servant, and
also appears on a lot of television for interviews and
explanations on legal matters. He earned his undergraduate
degree from George Washington University, master's degree from
Brown University, and law degree from Duke. After law school,
Judge Starr clerked on the Fifth Circuit for Judge David Dyer
and then with Chief Justice Warren Burger on the Supreme Court.
Judge Starr spent some years in private practice before serving
as Counselor to Attorney General William French Smith during
the first term of the Reagan administration. In 1983, Judge
Starr was appointed by Reagan to serve as a judge on the U.S.
Court of Appeals, D.C. Circuit. Judge Starr left the bench to
serve as Solicitor General under President George H. W. Bush,
and then served as Independent Counsel investigating President
Clinton during Whitewater.
After his services as Independent Counsel, Judge Starr
returned to private practice as an appellate lawyer and law
professor. Judge Starr also served as dean of Pepperdine School
of Law and president and chancellor of Baylor University. He
has argued 36 cases before the Supreme Court, authored more
than two dozen publications, and received numerous awards for
his public service. We welcome Judge Starr.
The next person is Josh Blackman, professor of law, South
Texas College of Law in Houston. Professor Blackman received
his undergraduate degree in Penn State University before
receiving his J.D., George Mason University School of Law. Both
degrees were magna cum laude. Professor Blackman clerked for
Judge Kim Gibson, Western District, Pennsylvania, and then
Judge Danny Boggs of the Sixth Circuit. During his career in
academia, Professor Blackman has proven to be a prolific author
and an expert in constitutional law, healthcare, the Supreme
Court and many other subjects. He has also testified 3 times
before the House Judiciary Committee. I believe that this is
his first time testifying before the Senate.
We welcome both Judge Starr and Professor Blackman.
Chair Durbin. Thank you, Senator Grassley. Because our
witnesses are appearing via video, I will lay out the procedure
we will follow. The mechanics are that witnesses will be sworn
in, then they each have 5 minutes to provide an opening
statement, and then it will be opened for questions. The first
round of questions, each Senator will have 5 minutes to ask. So
I would like to start by asking the members who are witnesses
today to raise their right hand and please----
[Witnesses are sworn in.]
Chair Durbin. Let the record reflect that the Chair heard
``I do,'' which is an indication of good results from the oath
being given.
We are going to start with Mr. Henderson to proceed with
your 5-minute opening statement. Please proceed.
STATEMENT OF WADE HENDERSON, INTERIM PRESIDENT AND CHIEF
EXECUTIVE OFFICER, THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN
RIGHTS, WASHINGTON, DC
Mr. Henderson. Good morning. Good morning, Chairman Durbin,
Ranking Member Grassley, and Members of the Committee.
I am Wade Henderson, interim president and CEO of the
Leadership Conference on Civil and Human Rights, a national
coalition of over 220 civil rights, human rights, and social
justice organizations dedicated to building an America as good
as its ideals. Thank you for inviting me to join today's
hearing to support Judge Merrick Garland's nomination as
Attorney General of the United States.
Now, when President Biden nominated Judge Garland, he
rightly instructed him, and I quote, ``You are not the
President's or the Vice President's lawyer. Your loyalty is not
to me. It is to the law, to the Constitution, to the people of
this Nation.'' Indeed, the Attorney General must be seen by
every member of the public from every community as a fair
arbiter of our legal system, whose sole duty is to serve the
national interest. Unfortunately, our two most recent Attorneys
General failed to live up to this high standard.
From their unconscionable validation of President Trump's
subversions of voting rights and our democracy, to their
inhumane separation of families at the border, to their abuses
of our justice system, Attorneys General Sessions and Barr all
too often served as loyalists rather than independent law
enforcement officials, and, in the process, deeply tarnished
the reputation of the Department of Justice. Nowhere has the
damage been more apparent than in efforts to undermine civil
and human rights, and my written statement lists many of the
harmful anti-civil rights actions taken by President Trump's
Justice Department.
America is in dire need of a course correction at DOJ. The
Nation needs an Attorney General with a demonstrated commitment
to integrity, independence, and the enforcement of civil
rights. And DOJ must embrace our Nation's tremendous diversity
while protecting the rights of individuals and communities that
have borne the burdens of systemic discrimination in all its
forms. Judge Garland, who is widely regarded as one of the top
legal minds in the Nation, embodies these principles.
I first became familiar with him as a nominee to the U.S.
Supreme Court in 2016. As then-president of the Leadership
Conference, I had the responsibility of reviewing Judge
Garland's record, and I became deeply familiar with his views.
I presented those findings in various public forums, including
on C-SPAN's ``Washington Journal.'' I believe now what I
believed then: Judge Garland is a jurist with a first-rate
legal mind and great personal integrity, and he has
consistently written and joined opinions that have upheld civil
and human rights. Several of our member groups and allies
reached similar conclusions. Frankly, he should right now be on
the U.S. Supreme Court.
That said, however, President Biden's selection of him for
this position is an inspired choice. He, along with the
Leadership Conference's own Vanita Gupta, our board member,
Kristen Clarke, and attorney Lisa Monaco are the right team for
this trying moment. If the issue is restoring the integrity and
independence of DOJ, and it is, then Judge Garland is
particularly well chosen. If the issue is restoring the mission
of the institution, including its commitment to addressing
civil rights enforcement and attacking racial inequality, and
it is, then Judge Garland's own words speak best when he
recounted so movingly yesterday how the DOJ first forged its
identity fighting against the Ku Klux Klan and working to bring
meaning to the Thirteenth, Fourteenth, and Fifteenth Amendments
of the Constitution. For these reasons, we support Merrick
Garland to be the Nation's next Attorney General fully and
without reservation.
I should be clear, however, that this report does not come
without expectations for prompt and meaningful action on civil
and human rights. My written statement outlines several
priorities that DOJ should quickly address, among them,
suspending the use of the Federal death penalty, rooting out
and addressing white supremacy and hate violence, and helping
to secure the right to vote for all Americans. The need for
robust Federal civil rights enforcement is as important as it
has ever been. The Nation needs a Justice Department that will
do everything in its power to provide equal justice to all. We
need an Attorney General who knows the Justice Department well
and who will reinstate DOJ's historic commitment to integrity,
independence, and vigorous civil rights enforcement.
Merrick Garland would be such an Attorney General, and is,
therefore, a fitting choice to lead the Justice Department at
this crucial moment. We urge the Senate to confirm him, and
thank you. And I would be happy to answer any questions. Thank
you.
[The prepared statement of Mr. Henderson appears as a
submission for the record.]
Chair Durbin. Thank you, Mr. Henderson.
Professor Blackman?
STATEMENT OF JOSH BLACKMAN, PROFESSOR OF LAW, SOUTH TEXAS
COLLEGE OF LAW, HOUSTON, TEXAS
Professor Blackman. Thank you, Chairman Durbin, Ranking
Member Grassley, thank you for inviting me to testify. My name
is Josh Blackman, and I am a constitutional law professor at
the South Texas College of Law, Houston. I support the
confirmation of Judge Garland. He should be swiftly confirmed.
In my brief time today, I will discuss three current DOJ
policies that I hope Attorney General Garland will maintain.
First, DOJ lawyers should not give legal effect to so-
called rulemaking by guidance. Second, Attorney General Garland
should carefully scrutinize consent decrees, especially those
reached through so-called ``sue and settle.'' Third, DOJ should
not resume the settlement practice of giving third party
payments to non-parties. That money should be returned to the
Treasury. These three issues may seem fairly low profile, but
each practice will have a huge impact on the separation of
powers, and these issues should be important to people on both
sides of the aisle. I hope that Attorney General Garland will
retain current DOJ policy with respect to these three issues.
First, the Department of Justice should not enforce
rulemaking by guidance. In the past, Federal agencies avoided
the formal rulemaking process and instead issued various
guidance documents. For example, substantive changes to the law
were made through dear colleague letters, frequently asked
questions, and even online bulletins, what I called Government
by Blog Post. These guidance documents are not supposed to have
the force of law. However, courts grant Auer deference to this
sub-regulatory dark matter. In 2018, Associate Attorney General
Rachel Brand instructed DOJ lawyers to not treat violations of
guidance documents as violations of the law, and President
Trump signed Executive Orders 13891 and 13892, which ordered
other agencies to adopt the principles from the Brand Memo.
Unfortunately, President Biden rescinded those Executive orders
on his first day in office. At present, the Brand Memo is still
codified in DOD regulations. I hope that Attorney General
Garland will maintain the Brand Memo.
Second, Attorney General Garland should carefully
scrutinize consent decrees. These agreements include intricate
requirements that DOJ could never impose through regulation or
litigation, and these consent decrees can exist in perpetuity.
During this time, Federal judges and court monitors can oversee
State and local governments. Such agreements raise distinct
federalism concerns. Indeed, many of these agreements arise
from a practice known as ``sue and settle.'' Organizations and
local governments would sue a like-minded agency, knowing there
is no adversity, and reach favorable settlements. Fortunately,
Attorney General Sessions took action to restrict those consent
decrees. The Justice Department imposed restrictions on consent
decrees, including limits on duration, sunset provisions, and
means for termination. Critically, under Attorney General
Sessions' guidelines, a consent decree cannot be used to
achieve a policy goal that cannot be obtained through
litigation. I hope Attorney General Garland will maintain this
policy.
Third, the Department of Justice should return any excess
settlement funds to the United States' Treasury rather than
make third party payments to progressive groups. These payments
have been criticized as settlement slush funds. The Federal
Government has allowed billions--billions, not millions--
billions of dollars to be given to third party nonprofit
organizations. These special interest groups were not parties
in the litigation and were not victims of misconduct. Indeed,
Senator Grassley has observed that the Justice Department
directed funds at organizations that Congress had defunded. In
this way, the executive branch bypassed the Constitution's
appropriations process. In 2017, Attorney General Sessions
prohibited the inclusion of third party payments and
settlements. Any excess funds from settlements would be
restored to the United States Treasury. Attorney General
Garland should maintain this policy.
Thank you for your time, and I will be happy to answer any
questions.
[The prepared statement of Professor Blackman appears as a
submission for the record.]
Chair Durbin. Thanks, Professor.
Ms. Tucker, the floor is yours.
STATEMENT OF ANDREA TUCKER, PARENT OF STUDENTS
AT J.O. WILSON ELEMENTARY SCHOOL, WASHINGTON, DC
Ms. Tucker. Good morning. First, I would like to say good
morning to Chair Durbin, Ranking Member Grassley, all of the
Members of the Judiciary Committee, and my fellow witnesses.
Thank you so much for having me here today. My name is Andrea
Tucker. I am a native Washingtonian and the proud mother of
three scholars in D.C. Public Schools. I am honored to be here
today, and I am thankful for the opportunity to come and speak
on behalf of Judge Garland.
I met Judge Garland roughly 5 years ago when he came to my
children's school to meet with one of the fifth graders he was
tutoring at the time. Unbeknownst to me, a few months later, my
then-second grader would have the honor of becoming Judge
Garland's next pupil. This was something that my child's
teacher thought he could benefit from, specifically to help
bring him out of his shell and to help with his reading
comprehension. Judge Garland normally tutors a student until
they graduate elementary school and the fifth grade, and then
he starts with another child in second grade. So over the last
4 years, Judge Garland has had weekly tutoring sessions with my
son.
At the end of every school year, Judge Garland has had--
always invites all of the children of the tutoring program,
which he started, to the D.C. Circuit Court of Appeals for a
tour to see the courtroom, meet the U.S. marshals and the
marshals' dogs, and get a feel for what it was that Judge
Garland does for a living. Judge Garland also has a pizza party
for them where they exchange gifts and other educational
materials so students can continue their learning over the
summer. One year when my son was struggling with
multiplication, Judge Garland gave him some flashcards to
practice with over the summer so Judge Garland could quiz him
when they returned the following school year.
Of course the past year was a bit different due to the
pandemic. Judge Garland did not miss a beat. He quickly pivoted
from tutoring in person at the school, once in-person tutoring
was no longer an option, and contacted the school's tutoring
coordinator to get my contact information, and he offered to
virtually tutor my son. On top of that, he knew that my son had
a twin sister in the same class, so he also offered to tutor my
daughter. The judge felt like all students can benefit from
tutoring and extra support, not just the ones that are
struggling and behind. What parent would turn that down,
especially during a time like this?
So in the end, Judge Garland coordinated with my kids'
school to get all the appropriate work packages to tutor both
of my children once a week on Zoom, carefully guiding them
through virtual learning and their schoolwork. All the extra
help was much appreciated. The fact that he still wanted to
tutor during a pandemic and give so much of his time to both my
children was amazing. This shows his dedication to our
community and love for children.
One thing that made Judge Garland such a special tutor was
he always began each session with asking how my children were
doing and what funny, interesting things they did since they
last met, getting to know them and engaging them on a personal
level. He made tutoring fun, interactive, and effective, or, in
the words of my daughter, ``He made tutoring and math more fun
and understandable for me.''
I mentioned earlier that when a student graduates fifth
grade, Judge Garland usually begins with another student. But
as my children approached their fifth grade graduation, they
asked Judge Garland if he didn't mind staying with them for the
upcoming school year if they were online. He quickly agreed. My
children are now in sixth grade, and I could see their work
with Judge Garland paying off in their grades.
When you confirm Judge Garland, and I believe you should
confirm him quickly, he is eagerly looking forward to getting
back to his students to continue tutoring them, even as he
settles into a new challenging role. This speaks to the
character of the man who would serve as Attorney General. He is
a man who actually does what he says he will, not one who just
pays lip service to helping our communities. Character,
commitment, and dedication, someone who will say--do what they
say they will do, that is what you are getting in Judge
Garland. Thank you.
[The prepared statement of Ms. Tucker appears as a
submission for the record.]
Chair Durbin. Thanks, Ms. Tucker. I appreciate that.
Judge Starr?
STATEMENT OF HON. KEN STARR, JUDGE, U.S. COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT, RETIRED, WACO, TEXAS
Judge Starr. Well, thank you, Mr. Chairman, and Ranking
Member Grassley, and Members of the Committee. I am so honored
to testify before the Committee today.
Since 1789 and General Washington's nomination of Virginia
Governor Edmund Randolph to serve as our Nation's very first
Attorney General, few nominees to the office have come before
the Committee, before the Senate with Judge Garland's
extraordinary array of credentials. We just heard one, by the
way, from Ms. Tucker, and that is his generosity of spirit. I
would like to focus very briefly on leadership and the
universal respect that the Judge garnered during his years as
Chief Judge of the D.C. Circuit. He is not only viewed, as he
is, as a superb jurist, but he was a superb leader of the
court, a leader who listened carefully to his colleagues and
who treated all persons in the court family with dignity and
respect.
What history teaches is that the role he will soon be
occupying, if confirmed, is extraordinarily difficult. My late
boss, Attorney General William French Smith, during the Reagan
administration, compared the job to that of the captain of a
hypothetical javelin team that elected to receive. ``It is a
hard job, and controversy, at times quite bitter, goes with
that territory.'' Consider the example of Attorney General
Janet Reno during the Clinton administration. She was
vehemently criticized, I think unfairly, for her decisions to
appoint several Independent Counsels during President Clinton's
first term. And yet, as she made crystal clear, the law that
was in effect required nothing less, and her determination to
do the right thing was mirrored by the outstanding FBI Director
at the time, Judge Louis Freeh.
This bedrock requirement of doing the right thing, of
integrity, has been spoken about frequently during the course
of these hearings, and, frequently, the reference is made to
the independence of the Justice Department. But as Judge
Garland full well understands in our constitutional
architecture, Executive power is vested in the President of the
United States. So how can, as a theoretical matter, any
Attorney General be truly independent while serving at the
pleasure of the President? Indeed, there were attempts made in
the immediate wake of Watergate to reconstitute the Department
as an independent agency, a very bad idea and constitutionally
suspicious.
The answer to this conundrum is independence with
accountability lying in the very qualities that Judge Garland
has shown through his long and distinguished tenure, and that
is independence of judgment. And that is, the Attorney General
must be allowed to make pivotally important decisions
unimpeded, especially with respect to the most sensitive work
of the Department, that of the criminal laws. And at times, the
resulting decision may draw the ire of White House personnel,
perhaps even of the President himself, as history teaches. But
his commitment to integrity and professionalism as a total way
of looking at the job, I think, was reflected in the work of
Judge Griffin Bell and his contribution during his tenure as
Attorney General. And Judge Bell's vast judicial experience,
like that now of Judge Garland, made itself manifest in the way
in which he conducted the office so honorably in his aptly
entitled memoir, ``Taking Care of the Law.'' That is the job.
Very briefly, the second broad area likely to be rife with
controversy in the coming months is that of protecting
religious freedom. Over the past decade, a number of voices
have been raised, drawing into question long-settled principles
of America's very first freedom, guaranteed by the majestic
opening words of the First Amendment: ``Congress shall make no
law respecting an establishment of religion or prohibiting the
free exercise thereof.'' Here again, I think Judge Garland's
distinguished traditional service points to optimism about the
Justice Department's protecting religious liberty.
His body of jurisprudence reflects stability and
predictability as huge values in the law, and those of us who
have long supported the Religious Freedom Restoration Act are
optimistic. After all, the Religious Freedom Restoration Act,
called RFRA, is the leading Federal civil rights law that
protects all Americans in the exercise of religious liberty. It
also embodies the constitutional perspective and jurisprudence
of Justice William Brennan, for whom Judge Garland served as a
law clerk. This is, in short, settled law, and it is crucially
important that the Department of Justice not support any
legislative or executive action that would dilute the vital
protections that RFRA provides to Americans of all faiths.
I thank the Chairman, and I look forward to your questions.
[The prepared statement of Judge Starr appears as a
submission for the record.]
Chair Durbin. Thank you very much, Judge Starr.
Ms. Bucella?
STATEMENT OF DONNA A. BUCELLA, FORMER DIRECTOR,
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, AND FORMER U.S.
ATTORNEY FOR THE MIDDLE DISTRICT OF FLORIDA, IRVING, TEXAS
Ms. Bucella. Chairman Durbin, Ranking Member Grassley,
distinguished Members of the Committee, thank you for allowing
me this opportunity to testify at today's hearing.
I have had the privilege of knowing Judge Garland since
1993. We worked together at Justice from 1993 to 1997. At that
time, I was the principal deputy director of the Executive
Office for United States Attorneys, the organization that
oversaw the 94 U.S. Attorney's Offices. Judge Garland and I had
constant contact over those years, and I witnessed Judge
Garland make sound and factually based decisions every day.
I have been honored to serve our country in various roles,
some of which include assistant United States attorney for the
Southern District of Florida, the director and the principal
deputy director for the Executive Office for United States
Attorneys, the United States attorney for the Middle District
of Florida, and the director of the Terrorist Screening Center.
One of my most life-changing experiences happened while working
with Judge Garland in Oklahoma City after one of the most
horrific domestic terrorist acts was committed on U.S. soil.
On April 19th, 1995, 168 people were senselessly murdered
in Oklahoma City. That day, Attorney General Reno asked me to
go to Oklahoma City. I went to offer assistance to the U.S.
Attorney's Office and found that the entire downtown was a
crime scene. Within 24 hours, Merrick arrived and immediately
began leading the investigation. I had the opportunity to see
Merrick deal calmly and purposefully with this horrific event.
Initially, we worked out of the command center at the Southwest
Bell Telephone building. Downtown Oklahoma City was still in
chaos. The streets were closed, except law enforcement and
first responders. The structures around the Alfred P. Murrah
Federal Building and the Daily Register were still smoldering.
Cars in the parking lot were crushed from the force of the
explosion. Rescue workers and their dogs walked through the
rubble searching for survivors. Later rescue dogs were
substituted for cadaver dogs, and many first responders were
desperate to find the remains of co-workers, family, friends,
loved ones, law enforcement. Many Federal agencies had offices
in the Murrah Building, and behind the building was the Daily
Register where many victims were catastrophically impacted. On
the other side of the Murrah Building was a Federal courthouse
where Federal judges worked. Large shards of glass were
embedded into office chairs, furniture, and the walls. How
could this have happened in America's heartland?
Merrick and I walked downtown around and through the Murrah
Building. As we walked by the daycare center attached to the
Murrah Building, an empty silence overcame us. Neither of us
said anything to each other about our shock and grief, not
until about 20 years later. We then went upstairs to one of the
floors in the building. We saw a desk, a chair. There was a
jacket on the chair, a can of Coke, papers still on the desk,
but less than 5 feet away where we were standing, there was
nothing but open space. Without exchanging words, we knew we
had to find the perpetrators of this unimaginable terrorist
attack. I knew Merrick, who would be leading the investigation,
would ensure that justice would be done, would be carried out
objectively and fairly. Emotions were not part of his decision-
making process.
Merrick is unwavering in doing what is right and has always
demonstrated outstanding judgment. I worked with him weeks and
months after the bombing and in Denver where the trial was
conducted. I saw the countless hours he devoted to make sure
that there were no corners cut and that justice was done. Under
his leadership, he required the investigation be coordinated
through the Western District of Oklahoma with involvement from
at least eight different jurisdictions around the United
States. It required a tremendous coordination effort, which he
led. And as his nature, Judge Garland was committed to making
sure the investigation was conducted in the right way. Why?
Because we owed the victims, the people of Oklahoma, and the
people of the United States a thorough and fair investigation
that comported with the rule of law. Merrick would accept
nothing less.
He relentlessly followed the law throughout this complex
investigation. He was meticulous in requiring that subpoenas
were issued. There were complete records of how evidence was
obtained. He made sure the applications for wiretaps, search
warrants, and other investigative tools were reviewed and
approved by each Federal district where the evidence was
sought, as well as by the FBI and the Department of Justice.
Merrick worked closely with Federal, State, local officials,
agents, first responders. He made sure all voices were heard,
and there were many voices.
Merrick is a collaborator and consensus builder. He was
always willing to tackle the difficult issues head on. While
many in law enforcement had their own opinions of how the
investigation should have been conducted, Merrick welcomed and
listened to diverse opinions. His sense of collegiality and
fairness and objectivity earned the respect of even those who
may not have agreed with his decisions. His commitment to
victims' rights was strong and enduring.
Judge Garland dedicated most of his professional life to
public service, which includes his 2 decades on the bench. He
is brilliant, thoughtful, kind, empathetic, compassionate, and
down-to-earth. He is a serious person and does not shy away
from making the hard decisions. He is a man of integrity,
honesty, and fairness. I can attest to all of this because I
know him. I was there with him in Oklahoma City, and I have
worked with him in good times and in bad. He has committed his
life to our country. He is extraordinarily well qualified to be
our Attorney General.
Thank you for allowing me this privilege to share my
thoughts regarding qualifications of Judge Garland, and I
welcome any questions.
[The prepared statement of Ms. Bucella appears as a
submission for the record.]
Chair Durbin. Thanks, Ms. Bucella.
Now we will ask a few questions, and I will start.
Let me start with Ms. Tucker, if she would be kind enough
to answer a basic question that I am asking, not just as a
Senator, but as a father and grandfather. I am trying to
visualize the relationship between Judge Garland and your
children, particularly since I have found, in my experience,
that many of my kids and grandkids are very skeptical of my
wisdom until they reach a certain stage in life. How have your
children taken to Judge Garland in a personal way?
Ms. Tucker. Well, my son has had the last 4 years before
the pandemic to get to know Judge Garland since he came to the
school every week to tutor him, so he had a familiar--
familiarity with Judge Garland. And my daughter always saw him
getting tutored by Judge Garland, and she was kind of a little
jealous, so she also wanted to get tutored with him. But they
just seem to love Judge Garland, and, like I said, he always
asks how they are doing to get to know them on a personal
level, so it is just easy for them.
Chair Durbin. Do they ever talk about the fact that he has
another life beyond being a good tutor as a judge--maybe
considered for the Supreme Court--now being considered for
Attorney General? Are your kids aware of that?
Ms. Tucker. Yes, they are, and we have had several
conversations in regards to that. And we also watched when
Judge Garland was nominated by President Biden on TV, and they
were just so excited. They were jumping up and down. It was
like, ``That is my tutor. That is Judge Garland.'' So they know
he is famous. I don't think they know the severity of it
because they are still 11, but they know he is somebody.
Chair Durbin. Thank you, Ms. Tucker, for joining us today.
Ms. Tucker. Thank you.
Chair Durbin. Wade Henderson, I have a basic question for
you. When we look at the Reconstruction period, Jim Crow, there
have been some great books written. I always recommend Carol
Anderson's ``White Rage'' and ``One Man, No Vote.'' But it
seems to me that the first thing--the first vulnerability of
the recently freed African Americans was the right to vote, and
that was the first--one of the first things that was attacked
during Jim Crow. It still continues to this day. Voter
suppression really focuses primarily on people of color after
all is said and done. Any comments on your life experience with
this issue?
Mr. Henderson. Senator Durbin, thank you for your question.
It could not be more pertinent to the issues of the day. When
the Justice Department was--the Division was formed in 1870, as
I mentioned before, one of its first tasks was to challenge the
Ku Klux Klan for the violence that they perpetrated against
newly freed, formerly enslaved people. That was almost--that
was 150 years ago. Congress enacted the Ku Klux Klan Act of
1871 to address that violence.
Ironically, today, the same issues that affected newly
freed African Americans at that time affect us and other
communities of color today, literally 150 years after the
enactment of the Ku Klux Klan statute. Recently, Congressman
Bennie Thompson, Chair of the Homeland Security Committee, and
the NAACP filed a Federal lawsuit charging a conspiracy between
Former President Trump, Attorney Rudolph Giuliani, the Proud
Boys, and the Oath Keepers to prevent Congress from certifying
the election of this past year. And it was the Ku Klux Klan Act
of 1871 that was the basis for this challenge.
So as the great author, William Faulkner, once said, ``The
past is never dead. It is not even past.'' The issues that
motivated the challenge to African Americans 150 years ago
remain a challenge to American democracy today. We are a Nation
at war with itself, and we need a Department of Justice that is
committed to lowering the temperature and enforcing the laws as
they exist today, with the understanding that every American
citizen deserves the right to cast a vote when appropriate, and
that that right will be protected by the Department of Justice.
Judge Garland is the perfect individual to carry out that
responsibility, and, in times like these, it is so important
that an individual of his integrity and stature be chosen to
represent the Department of Justice. Thank you.
Chair Durbin. Thanks, Mr. Henderson.
Senator Grassley has told me that he has to go to a Finance
meeting.
Senator Grassley. No, if you have got more questions, I can
wait.
Chair Durbin. No, I am going to defer my questioning so
that you can take the time for yours.
Senator Grassley. Then I will go to the Finance Committee
meeting.
Judge Starr, you left the bench to go to the Department of
Justice as Solicitor General. So what sort of advice would you
have to Judge Garland that leaves the same court to go to be
Attorney General?
Judge Starr. He will be blessed with a very fine group of
professionals throughout the Department overwhelmingly, but I
must say his independence of judgment and taking a careful
look, presuming, as we say in administrative law, regularity,
the presumption of regularity. But sometimes the Department
gets it profoundly wrong, and the Attorney General is where, in
effect, the buck stops. So I have one very quick example.
As I say in my written statement, during the Obama
administration, the Justice Department took, what I believed,
was an extraordinarily ill-conceived position with respect to
religious liberty, trenching on values of the autonomy of
religious institutions, specifically church schools. And the
position taken by the Solicitor General--very able lawyers--was
unanimously rejected by the Supreme Court, not 5-4, not 6-3,
but 9-nothing, Justice Ruth Ginsburg joining, Justice Sotomayor
joining, in a huge rebuke to the Justice Department.
Where has the Justice Department gone wrong? They had gone
wrong, first, at the EEOC. It took the position that religious
liberty did not really count on the scales beyond simply
association of liberty, more generally, of the Rotary Club or
the NAACP, important organizations and they enjoy associational
freedoms. But the Hosanna-Tabor Angelical School was a
religious institution, and that, of course, triggered First
Amendment values, very specifically, those first 16 words.
So there are times when even with respect to the office
that I was privileged to hold, the Solicitor General, that on
issues of fundamental importance to our constitutional order,
the Attorney General should be willing to focus on it and to
step in and say, with all due respect, Solicitor General, and
your very able team, I think you have got this one wrong.
Senator Grassley. Okay. I have another question for you,
but because time might run out, I have an important question
for Professor Blackman. Historically, the solicitor--
historically, the Solicitor General's Office has been seen as
representing the permanent interests of the Government, not the
political interests of any single Presidential administration.
Paul Clement in that position said, ``It has been the long-term
position of the Justice Department to defend the
constitutionality of statutes whenever reasonable arguments can
be made.'' So far, we have seen the Biden administration change
its litigation position on a number of high-profile cases, and
I would expect that might continue.
So two questions to you. I am going to ask them both at the
same time, Professor. If a case is being litigated, what is the
standard for whether to change a position, and is a simple
political disagreement enough, and how does the Supreme Court
view an administration changing its litigation position?
Professor Blackman. Well, thank you, Senator Grassley. It
is a pleasure to be here.
In the past, the Supreme Court has been very critical of
changes of position. During the Obama administration, Chief
Justice Roberts, in particular, went after some of the lawyers
in the Government, ``Why did you change your position?'' And
the answer is always the same: ``Upon further reflection, we
have a new position,'' and ``upon further reflection'' is
really code for ``upon further election,'' rather than a simple
change in position. I would hope if General Garland is in the
office and decides to switch position for the Court, he gives a
reason why. It cannot just be we have a new President. If that
is the reason, then state it, but maybe there is some judgment
about the law. But I suspect that at some point, the Court will
get annoyed that all these positions keep flipping on a fairly
regular basis.
Senator Grassley. Okay. I am going to go back to Judge
Starr. I believe you are familiar with the Justice Department's
recent practice of dismissing False Claims Act cases brought by
whistleblowers. The Justice Department argues that it has
unfettered discretion to dismiss any claim brought by a
whistleblower. If legislation is needed in this area, I am in
the process of trying to clarify Congress' intent, which
oftentimes DOJ or the Supreme Court gets wrong, and we have to
correct it, and I have had a lot of help from Senator Leahy in
regard to that. Based on your reading of the False Claims Act,
would you--what would be your advice as the appropriate
interpretation of the Government's dismissal authority?
Judge Starr. Yes, thank you, Senator Grassley, and I think
that the Government has taken, frankly, an unconstitutional
position. It is seeking to arrogate complete authority, what it
calls an unfettered discretion, to dismiss a qui tam relator's
suit seeking redress against possible fraud against the
Government. And I think fundamental constitutional principle
suggests that the interpretation of the law that has been
given, including by my former court and Judge Garland's current
court, the D.C. Circuit, is just profoundly wrong in our system
of checks and balances.
There is a key interest on the part of qui tam lawsuits,
and that is of the qui tam relator, the whistleblower, and
those merit much more protection than is involved in the
opportunity, as one judge put it. The hearing before the
dismissal of the lawsuit is ordered by district judges to give
the qui tam relator and her counsel an opportunity to persuade
the Government not to do that. This, I think, diminishes the
judicial role, calls the Article III power into fundamental
question, and arrogates authority that I do not believe, and I
hope that you and Senator Leahy likewise believe that Congress
never intended in those magnificent amendments in the 1980s
that you helped so instrumentally as really the architect of
those amendments, Congress never intended to give the authority
of that sort to the Justice Department's Civil Division and,
ultimately, the Attorney General.
Chair Durbin. Thanks, Senator Grassley, and I realize you
have to go to another Committee hearing. With the permission of
the Senator from Connecticut, the Senator from Texas has a time
issue. Would you be all right if I recognized him first?
Senator Blumenthal. Absolutely.
Chair Durbin. All right.
Senator Cornyn.
Senator Cornyn. I will be happy to return the favor at some
future date. Thank you, Mr. Chairman.
Judge Starr, you have--during your distinguished career,
you have had a lot of different hats that you have worn. One,
of course, is as Independent Counsel, which was the predecessor
to the--now the Special Counsel provisions that--under which
Robert Mueller and now Mr. Durham have been appointed. I
understand why Judge Garland was reluctant to talk about the
Durham investigation and what he would or would not commit to,
but I would like to get the benefit of your insight and
experience on what kind of advice would you give Judge Garland,
what kind of advice would you give us in terms of allowing the
Special Counsel to complete their job as assigned without the
Congress interfering.
Judge Starr. Well, the questions yesterday, Senator Cornyn,
pointed to the key issue: will Attorney General Garland, once
confirmed, support fully, completely, at a practical and moral
level, as well as a legal level, the ongoing Special Counsel
investigation. Under the regulations promulgated by Attorney
General Janet Reno in 1999, those are very strong and solid
regulations, and, in my judgment, there is a guarantee of
practical independence subject to the overall supervision of
the Attorney General.
So just as the Attorney General is well advised not to be
interfering with the orderly conduct of an investigation by a
United States attorney's office and the like, so, too, and all
the more so in light of the sensitivity of a Special Counsel
investigation, that is where, it seems to me, it is very wise
and prudent for Judge Garland, as Attorney General, to show the
kind of respect and restraint that he has demonstrated
throughout his judicial career. He should preserve, protect,
and defend that investigation and to provide the assurances to
Mr. Durham that that protection will proceed so long as there
is not good cause for his removal, which, of course, would be a
very daunting standard to meet.
Senator Cornyn. And that is the same advice you would give
any Attorney General, I suspect.
Judge Starr. Yes, indeed, because it is the law. I think
sometimes people on the outside do not realize that a
regulation has the force of law, and I think those regulations,
which have been in effect for, lo, these many years, have stood
the test of time over these decades during both Republican and
Democratic administrations. So I would say, as Judge Garland is
accustomed to doing as a judge, stay the course. I would give
that advice to any Attorney General.
Senator Cornyn. Thank you very much. Professor Blackman,
recently, President Biden announced that he wanted the
Department of Justice to review its policy on allowing it to
divert some of the money from settlement agreements to third
parties who are not even parties to the lawsuit. The goals of
the settlement agreement between the Department and a private
party, say, a bank or a business, are to compensate victims, as
you know, redress harm, and deter unlawful conduct. So it
strikes me as a little odd and highly problematic that we would
let the Department of Justice pick and choose their favorite
charities or political causes, even perhaps at the expense of
making the victim whole, which, of course, is the whole goal of
compensating the victim. Would you give us the benefits of your
thoughts on changing this policy, so allowing the sharing of
the proceeds of a settlement or a jury verdict with non-parties
to the litigation?
Professor Blackman. Thank you, Senator. Attorney General
Sessions adopted a policy that I thought was quite salutary. It
prohibited these so-called third party settlements where the
Government would pick and choose which charities would receive
millions and hundreds of millions of dollars--Senator Grassley,
who stepped out, was a key hawk on this issue. In the Bank of
America settlement, I think hundreds of millions of dollars
were directed to various charities that had no connection to
the actual offense. I think there is even a constitutional
problem with these settlements. If there is any excess money,
it should go to the U.S. Treasury. Congress then could choose
to fund or not these settlements.
Some of the charities that were selected for the settlement
funds were actually defunded by Congress, so these are end
run--end runs around the appropriations process. It is
disappointing that the Biden administration is revisiting this
policy, and I suspect it will be abandoned. I can only hope
that Judge Garland will perhaps be more judicious in giving
these vast amounts of money to groups that were in no way
affected by the litigation.
Senator Cornyn. Thank you very much.
Chair Durbin. Thank you, Senator Cornyn.
Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman.
Thank you all for being here today, and I would say,
judging by your testimony, but, more important, by Judge
Garland's testimony yesterday and his reception in this
Committee, that he should be approved by an overwhelming
bipartisan Majority. He demonstrated a fierce independence and
strong sense of the integrity and credibility that needs to be
restored at the Department of Justice, illustrated, I think,
most tellingly by his saying again and again that he will
involve the professionals, the career prosecutors,
investigators, in decisions, and that those decisions will be
based on fact, not politics; that he will insulate the
Department of Justice from political interference and defend
its independence, but, equally important, his commitment to
correcting racial injustice and overcoming inequities and
systemic racism that have plagued policing in this country and
our justice system in almost every area of our society.
I would like to ask you, Mr. Henderson, if you were
advising Judge Garland, what would you recommend to him that he
adopt in the way of policies to address these kinds of
inequities and issues?
Mr. Henderson. That is a very good question, Senator
Blumenthal. I would begin first by suggesting, at least with
regard to the issue of policing in our country, that the
Leadership Conference supports meaningful police reform. Quite
frankly, we cannot understand how anyone who witnessed the
torture and death of George Floyd, or the results of a wrongly
delivered no-knock warrant in the case of Breonna Taylor,
resulting in her death, or the death of a victim like Eric
Garner, who suffered from an illegally applied chokehold that
ended up killing him, how any of those incidents could be
ignored by someone arguing the need for police reform.
As a matter of fact, 2 days ago, the Office of the Chicago
Inspector General issued a scathing report about the practices
of the Chicago Police Department in the aftermath of the George
Floyd-related demonstrations in Chicago. And the report found
that many police officers made an effort to avoid
accountability by obscuring their badge numbers or their names
and so the issues related to their conduct could not be
adjudicated. Now, this comes on the heels of an effort by the
previous administration to end consent decrees that had sought
reform of the Chicago Police Department.
So clearly there is evidence and a record of the need for
accountability. As a matter of fact, in today's Washington
Post, there is an article about police units from Japan and
Canada and Finland reviewing an instance where a Seattle
resident was killed by police, even though the resident was
clearly mentally incapacitated. And the three police
departments that reviewed it from these other countries say--
said, look, we deal with these issues very differently, and it
really underscored the importance of reform.
So, we hope that Judge Garland will look at these issues
and understand their importance. We are supporting the George
Floyd Justice in Policing Act, which may be coming up soon for
a vote in the House of Representatives and hopefully will be
presented to the Senate for action. We think that is one step
where the Department could make a contribution to the kind of
meaningful reform we support. And that is just one example,
Senator, of what we would recommend on the front end.
Senator Blumenthal. I am a strong supporter and co-sponsor
of the Justice in Policing Act, and I think that one of the key
elements of the policing reform ought to be changing the mens
rea requirement under Section 242. I had an exchange with Judge
Garland yesterday, and I was very pleased that he is receptive
to lowering the threshold standard so that more accountability
can be imposed for violations of constitutional rights by
public officials generally, not just by police.
And, of course, like you, I am committed to eliminating
racial injustice, not just in policing, but in housing where
redlining continues to exist, in education where the quality of
a child's education often depends on their ZIP Code, in
workplace discrimination where jobs still are denied and
promotions denied based on racial injustice, and, of course, in
healthcare where there are dramatic disparities illustrated by
what has been happening in the pandemic and its impact
disproportionately on Black and Brown communities. So I thank
you for your commitment, and I am very pleased that Judge
Garland has emphasized the priority of eliminating racism and
racial injustice, along with his fight against violent
extremism and white supremacy and our society. Thank you very
much, Mr. Henderson.
Thanks, Mr. Chairman.
Chair Durbin. Thank you, Senator.
Senator Lee.
Senator Lee. Thank you, Mr. Chairman.
Thanks to our witnesses participating with us today.
Judge Starr, I would like to start with you, if that is
okay. Would you agree that removing Special Counsel Durham for
anything other than cause would flatly and inexcusably
contradict the administration's claims that the Biden Justice
Department will be free from political pressure?
Judge Starr. Yes, it would take the form, as it were, of a
Saturday Night Massacre. We all recall that or know it from
history. I recall it ever so vividly, as most Members will,
which is the President of the United States acting imprudently
and resulting in an act of conscience by the then-Attorney
General of the United States, Elliot Richardson, who said, ``I
cannot in conscience fire the Special Prosecutor,'' as
Archibald Cox was known. It would, in fact, create a firestorm
absent the most compelling circumstances. And I have great
confidence in Judge Garland, given his record of integrity and
his independence of judgment, that were there to come such a
suggestion from anyone--I am not suggesting that the President
of the United States would do this, but anyone as a senior
leader in the administration suggesting this kind of action
without compelling circumstances would be a grievous mistake.
Senator Lee. Thank you, Judge Starr.
Professor Blackman, let us go to you for a second. Is there
a point at which what is known as ``prosecutorial discretion''
simply becomes Executive fiat? And if so, at what point does
that run afoul of the Constitution?
Professor Blackman. Absolutely, the President has a duty to
take care that the laws are faithfully executed, and that means
something. Congress gives the Executive some latitude, some
discretion, but the President cannot simply decline to enforce
a law he dislikes. And I think we have seen this pattern all
too often. I think some of the Executive actions on immigration
amount to an abdication of the law. I think even in the first
100 days the Biden administration tried to say no more
deportations for 100 days; I do not think he has that much
discretion. We have seen perhaps a complete moratorium on the
death penalty. That can go beyond the bound of discretion. I
think Congress could perhaps do more to legislate to make clear
what those rules are, but I am troubled by the failure to
faithfully execute the law. It is something that I think we are
seeing increasingly.
Senator Lee. So you mentioned prosecutorial discretion
being invoked as a doctrine in the context of immigration. I
assume you may be referring there, among other things, to DACA.
It reminds me of a piece that you wrote with my friend Ilya
Shapiro about a year and a half ago in which you said that if
Federal law, in fact, supported DACA, then certain key
important provisions of the INA would themselves run afoul of
the non-delegation doctrine. Can you explain what you mean
there?
Professor Blackman. Of course, and I am thankful my
colleague at Cato, Ilya Shapiro, gets a shout-out.
Congress has created a very elaborate scheme of granting
discretion to the Department of Homeland Security. For example,
you can let the Secretary set priorities. That is a fairly
nebulous provision. You can set priorities.
The Obama administration and perhaps now the Trump--Biden
administration said these nebulous provisions about granting
discretion to set priorities let them basically create this
elaborate program by granting lawful presence to over a million
people and grant them work authorization.
If you can read the INA that broadly, then the entire INA
is perhaps unconstitutional, right? You should not be able to
read it--the Supreme Court punted on this issue. Chief Justice
Roberts does what he often does and declines to decide
important questions, and they just did not decide it. But
eventually the courts will have to decide the DACA litigation,
and this is something that Attorney General Garland will be
litigating now, defending the policy for the new
administration.
Senator Lee. So in other words, you have got concerns with
the notion that the President of the United States could just
tell the Department of Justice in advance to not comply with
this specific provision of the INA. That would concern you.
Professor Blackman. Oh, very much so, yes.
Senator Lee. Section 241 of the INA, of course, provides
that, ``When an alien is ordered removed, the Attorney General
shall remove the alien from the United States within a period
of 90 days.''
On what planet, in what universe would it then be
appropriate to convert the word ``shall'' into ``may not'' or
``may decide not to''?
Professor Blackman. That is exactly right, Senator.
Generally, the word ``shall'' means ``must.'' That is how we
read the word ``shall'' in the law. And Congress has created a
very elaborate scheme by which the Attorney General can cancel
removal through very specific rules. But the moratorium enacted
on day number one was across the board: every deportation shall
stop.
A Federal judge down in Texas, in Corpus Christi, declared
that policy unlawful. As far as I am aware, that has not been
appealed up. That is still in the district court. I think we
will see more of these sorts of efforts to try to just not
enforce parts of the law that are unpopular.
Yesterday Senator Sasse made a point that, over time,
Article II, the Executive, has grown; Article I, the Congress,
has sort of shrunk. I would hope it reverses and Congress
asserts itself more over immigration and puts some teeth into
the limits on the President's powers.
Senator Lee. Thank you, Mr. Chairman. I see my time has
expired, and I would note here that this is part of a
consistent pattern that has been under the leadership of
Republican and Democratic Congresses and White Houses combined
over the last 80 years in which we have taken power away from
the American people in two steps. First, we have taken non-
Federal power and brought it to Washington. Within Washington,
we have taken that power or any power that we might have
previously had and handed it over to the executive branch. We
cannot do this anymore. We have got to reclaim our role under
Article I as the lawmaking branch.
Thank you.
Chair Durbin. I thank the Senator from Utah. We can reserve
for another hearing the question of prosecutorial discretion
because there are not enough resources to prosecute every
suspected criminal, and there are decisions being made every
single day by agencies as to which are the more important
prosecutions to pursue.
Senator Coons.
Senator Coons. Thank you. Thank you, Chairman Durbin.
And thank you to the witnesses. I appreciate this
opportunity to consider Judge Garland's nomination for Attorney
General from the perspective of those who have worked with him,
supported him, come to know him both as an individual and as a
professional.
Ms. Bucella, if I might, you worked with him around the
prosecution following the Oklahoma City bombing. You have
praised Judge Garland's leadership as someone who made everyone
feel heard. I would be interested if you would briefly explain
what stuck out to you about his leadership during that
demanding prosecution of what was at that point the most
pressing and challenging recent example of domestic violent
extremism.
Ms. Bucella. Thank you very much, Senator Coons. Judge
Garland is a very thoughtful person, and you need to remember
that at that time there were all these competing agencies. We
had Federal, State, and local law enforcement. We had a DA's
office. Everyone wanted to run the case. Merrick was incredibly
patient and very--a great listener, and he took into account
everybody's ideas. And this was something that was
unimaginable, and you can only believe that the people of
Oklahoma wanted to take care of business in Oklahoma. But
because it was domestic terrorism, because--while the act
occurred in Oklahoma City, it impacted so many other
jurisdictions. McVeigh was in a number of different locations.
His family was in different locations. Terry Nichols had family
and co-conspirators in different locations. And it really,
really took a combined effort, and so it was not, you know,
Merrick's way or the highway. It was really--I remember sitting
down in the command center and listening to people strenuously
and vigorously argue their opinion about how they wanted the
case to be prosecuted. And, ultimately, while everything is not
perfect, everybody does not get exactly the way they wanted it,
at the end of the day it was a solid prosecution, and he
actually had everyone have their say in it.
Senator Coons. Thank you. I think a critical role for the
Attorney General is to help coordinate Federal, State, and
local law enforcement, to coordinate across different agencies,
different interests, different regions. It is encouraging to
hear about what I have heard about his experience as a judge,
that he is able to craft consensus opinions from judges of
widely varying views. But to hear about his experience as a
prosecutor is encouraging as well.
Ms. Tucker, I am a father of twins. If you could, tell me
something about your experience with Judge Garland tutoring
your twins. I thought he really showed his humanity in his
answers yesterday, but if you could speak briefly to how he has
influenced your children and your family and what that tells
you about his values, I would appreciate that.
Ms. Tucker. Thank you so much. Thank you for your question.
I would say, as Ms. Bucella previously stated, Judge Garland is
so patient and he is so kind, and he is just so down-to-earth,
and he gravitates toward kids, and he just sucks them in, and
they just want to do that. They want to be interested in what
it is that he is teaching them. He just makes it interesting to
where they are able to gravitate to it. And I have seen my--he
started tutoring my son in the second grade. His reading and
his comprehension has tremendously grown, and he is an Honor
Roll student now.
So, I appreciate the time that he invested in him because,
you know, he always encourages him, be like, ``You can do it.
Come on, let us try to figure this out.'' I mean, it takes a
special person and a patient person in order to be able to want
to teach kids. I thank all these teachers out here because it
takes a lot to be a teacher and a tutor, because he seems to
know everything that they are learning in the school and he can
explain it a lot better than I could. So I just appreciate what
he has learned from that, and they are just so excited about
learning.
Senator Coons. Thank you, Ms. Tucker, and thank you for
joining our hearing today.
Ms. Tucker. You are welcome.
Senator Coons. Mr. Henderson, it is great to see you again,
Wade. You have noted that addressing America's longstanding
racial inequalities, that dealing with racial justice will be
central to many of the issues on the Justice Department's
docket for the coming years, whether it is voting rights,
criminal justice, environmental justice, many others.
Can you just speak to the importance, the urgency of
confirming the other senior nominees who will help guide the
Department of Justice alongside Judge Garland, should he be
confirmed, Vanita Gupta to be Associate Attorney General and
Kristen Clarke to lead the Civil Rights Division? How will they
be critical to his leadership? And how will the Attorney
General play a key role in shaping the Department's work on
these issues with their vital support and partnership?
Mr. Henderson. Senator Coons, thank you for your question.
When President Biden announced the selection of Judge Garland
to be his next Attorney General, he introduced three other
attorneys to fill out a quartet of Department leadership that
would be responsible for the enforcement of a number of issues,
but of greatest concern to us is the civil rights enforcement
of the Department, returning to its original mission from 1870.
We were so pleased that the President announced the selection
of Vanita Gupta to be the Associate Attorney General, the
Number 3 position in the Department; and as you know, she comes
from the Leadership Conference on Civil and Human Rights as our
president, but before that had established herself as one of
the great civil rights lawyers in this country and of her
generation. And her history of involvement as deputy general
counsel with the ACLU and ground-breaking attorney with the
NAACP Legal Defense and Educational Fund lets us know that the
President is deeply committed to exercising oversight of the
Civil Rights Division in the most important way, and Vanita's
selection confirms that.
The choice of Kristen Clarke could not be better. Kristen
currently serves as the president of the Lawyers' Committee for
Civil Rights Under Law, that esteemed organization established
in 1963 by President Kennedy to address the great injustices
that were occurring primarily in the South, directed at African
Americans, making an effort to prevent them from exercising
their constitutional rights. Kristen has been an outstanding
civil rights lawyer. Her tenure with the State government in
New York handling civil rights issues and her current work with
the Lawyers' Committee has distinguished her among her peers as
really one of the great attorneys of her generation.
The two of them taken together will bring an incredible
strength to the Department that should not be ignored, and at
this time of great controversy for the country, having both
Kristen Clarke and Vanita Gupta as part of the quartet of
leadership under the guidance of Merrick Garland, along with
Lisa Monaco as the Deputy Attorney General, makes for, in our
view, one of the strongest teams that the Department has ever
fielded.
Judge Garland's commitment to including his supporters, his
staffers, as part of the decisionmaking of his Department,
gives us great confidence that this Department will use all of
the resources available to it to ensure that the constitutional
rights of all are greatly protected.
So thank you so much, and we hope that the Senate will move
expeditiously to confirm Vanita and Kristen Clarke as soon as
possible.
Senator Coons. Well, thank you, Wade. Thank you for that
input, Mr. Henderson. I agree with you this is a very strong
leadership team, and I look forward to working with you and
this Committee for their swift confirmation.
Thank you, Mr. Chairman.
Chair Durbin. Thanks, Senator Coons.
We understand Senator Booker is available from a remote
location.
Senator Booker. I am. You make it sound more glamorous than
it actually is, but thank you very much, Chairman.
I would like to go back to Wade Henderson, who I notice has
a great haircut these days.
[Laughter.]
Senator Booker. I really appreciate you finally joining me
in the world of bald-dom, sir. But, you know, just focusing on
the Civil Rights Act of 1957 that created the Justice
Department Civil Rights Division and gave the Attorney General
new authorities to protect civil rights and ensure equal
protection for all Americans--and I know you have dedicated so
much of your life to that work of protecting civil rights,
advancing equality. But in the decades since then, we have
seen, unfortunately, that the Attorney General and the
Department can decide not to really stand and try to create a
Nation that is really liberty and justice for all.
You take the Trump administration. We saw a real
abandonment of the focus on voting rights. For instance, the
Trump administration's Justice Department all but ignored the
Voting Rights Act of 1965. With the exception of one school
district settlement just last year, it did not file a single
Voting Rights Act case over the last 4 years.
And so, Mr. Henderson, what do you think the Department of
Justice's priorities should be in terms of restoring civil
rights? And what gives you confidence that Merrick Garland is
the right person for the challenges that we see today in terms
of equality of access to the polls and voting rights in
general?
Mr. Henderson. Thank you for that question because I think
it is central to the challenge facing our Nation today. I
mentioned earlier in response to another question that America
at this point remains a country at odds with itself. I cited
the fact that the issues which were central to the
controversies of the 2020 election cycle could well have come
directly from the challenges facing our Nation in the aftermath
of the Civil War. The fact that the Fifteenth Amendment to the
Constitution, which guaranteed the right to vote to African-
American men--regrettably, not to women at that time--became
the central issue that this country faced regarding the 2020
election cycle and whether Americans who indeed are citizens of
this country, eligible to vote, could have their votes
respected and protected and heard.
The Department of Justice has a traditional responsibility,
as Merrick Garland noted yesterday, formed for the purpose of
defending the Reconstruction Era statutes that are making sure
that the Thirteenth, Fourteenth, and Fifteenth Amendments to
the Constitution have real meaning. And yet the past
administration did much--in fact, everything in its power to
subvert the enforcement of those laws and did so in a way that
greatly damaged--greatly damaged--the interests of the American
people and the reputation of the Department of Justice.
We are quite confident that the team that President Biden
has put together with Merrick Garland at the helm, bringing his
vast knowledge of the law, his superb gift as an attorney and
someone who knows the Department well, will invest all of his
authority in helping, as he said, to address this central issue
in the most direct and important way. He has put together a
team of individuals, as he noted, particularly with Vanita
Gupta and Kristen Clarke, that gives us tremendous assurance
that these skillful attorneys, knowing and understanding the
Department's role in helping to achieve equal justice under law
for all, will be able to carry out that responsibility in the
best way practical. And I am very confident in the Attorney
General's willingness to open his door to hear concerns of
organizations, a vast array of who will have access to him, the
entirety of the country, truthfully. He will evaluate those
requests and carry them out in a way that fully, fully
implements the commitment of President Biden to ensuring that
there is justice for all in our country. And this is the time
to do it.
So I hope that the Attorney General will focus, as he has
pointed out, addressing issues of hate violence and white
supremacy in our country. I hope, like Secretary Austin at the
Pentagon, he will make an effort to investigate hate violence
and law enforcement in this country. We saw in the unfortunate
events of January 6th, and we saw, I have to say, many police
officers sacrificing themselves for the interest of American
democracy, and they need to be lifted up for that, particularly
the three individuals who lost their lives on that day, Officer
Sicknick and his two colleagues who committed suicide. We know
the hardship that police officers face, and we are sympathetic
to that. But at the same time, we also know that deeply
embedded in that crowd were members of law enforcement who
were, in fact, sympathetic to and supporting the
insurrectionists' efforts that were underway at that time. And
I hope that the Attorney General will pursue those issues in a
meaningful way and help to ensure that that kind of activity
does not go forth in the future.
Thank you.
Senator Booker. Sir, thank you. My time has expired. I am
grateful for that. I am also grateful for the work that you
have done in finding bipartisan accord on issues so urgent in
criminal justice reform. It is just great to see you. Thank you
for taking the time, and you and Michael Jordan have done more
for bald Black men in America.
[Laughter.]
Mr. Henderson. Thank you, Senator.
Senator Booker. You are out there making us look good.
Thank you.
Chair Durbin. Thank you, Senator.
Senator Tillis.
Senator Tillis. Thank you, Chairman Durbin.
I am going to be brief. I came here--I was in North
Carolina yesterday and participated in the hearing via Webex.
Unfortunately, with the time I had to go to the airport, I was
going to ask some riveting questions about intellectual
property, trademarks, and the things that bring everybody to
this Committee every day, but I have submitted those as
questions for the record. I wanted to be here in person to say
that I thought he did an extraordinary job in the hearing
yesterday. I have no questions for the witnesses. I listened to
their opening statements, and I fully intend to support his
confirmation.
Thank you, Mr. Chair.
Chair Durbin. Thank you, Senator.
Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman. I just wanted to
stop in. We have a hearing in Finance on the Deputy Treasury
Secretary, so I am sorry I have not been here through the day.
But I wanted to welcome Donna Bucella, who is one of our
witnesses. Donna was the head of the Executive Office for
United States Attorneys when I was the U.S. Attorney in Rhode
Island, so she had to keep an eye on not only me but another 92
U.S. Attorneys around the country, and I want to wish her well.
I would like to ask her thoughts on the question that I
raised with Judge Garland yesterday, which was how the
Department should respond to what I consider to be pretty grave
damage done to its norms and its practices and its values and
its reputation during the Trump years. And the Attorney General
suggested that working through the Inspector General and
working through the Office of Professional Responsibility,
which oversees attorney conduct as essentially members of the
bar, might be enough to take on the problem. I think that the
problem is worse than that. It is more systemic than that, and
some means of trying to understand what went wrong so that you
can right it. If you had a ship that you were sailing and the
ship had a fire on board, the first thing you would do after
you put out the fire is commission a damage assessment so you
would know what the capabilities were of the vessel and what
needed to be repaired and what was the most urgent thing to
repair and all of that.
So if I might ask Ms. Bucella for her thoughts, having been
one of the administrative leaders of the Department in the
past, on this question of what might be options for the
Attorney General, if he is confirmed, to consider if he finds
out that the problems over there are actually worse than just
what the Inspector General and OPR can handle. Ms. Bucella.
Ms. Bucella. Thank you, Senator Whitehouse. It is good to
see you again.
Senator Whitehouse. I was one of your least difficult and
problematic U.S. Attorneys, correct?
Ms. Bucella. Of course you were.
[Laughter.]
Ms. Bucella. As you know, Senator Whitehouse, trying to
find out all of the information--it resides in many places. I
believe that Judge Garland would be best at trying to
commission some sort of a working group using his U.S.
Attorneys, because as you know, as the chief law enforcement
officer in the 94 different districts, each of the U.S.
Attorneys have accessibility to Federal, State, and local law
enforcement. They also have an opportunity to hear on the
ground what is going on in their communities. So perhaps having
an Attorney General Advisory Committee Subcommittee to also
address this to be able to provide input and information and
recommendations for resolution or recommendations for where do
we go next. I think there are so many dedicated men and women
out there in the DOJ law enforcement community as well as the
State and locals, and I do think that they have some incredible
insights to really help Judge Garland when he becomes the
Attorney General to figure out how to right the ship.
Senator Whitehouse. Yes, I will agree with you, Ms.
Bucella, that there is something that I think binds most
graduates of the Department together, a sense of shared values,
a sense of shared commitment, a sense of appreciation at the
experience of having been allowed to work in such a remarkable
place. And I think that does provide a pool of resources and of
good will and of experience that any Attorney General can draw
on. And one of the things that we have noticed, particularly
when things were blowing up in the Bush administration over at
the Department of Justice, was that that population of the
alumni of the Department came together in a very bipartisan
fashion to try to provide helpful remedies to the problems,
particularly of Attorney General Gonzales. So thank you for
saying that. I think that is an important community, and
potentially a bipartisan community as well, to provide good
advice that will not trigger partisan reactions.
Thank you so much, Mr. Chairman.
Chair Durbin. Thank you very much, Senator Whitehouse.
I want to personally thank the witnesses who have appeared
today. They have certainly added to the record and our insight
into not only the nominee but the issues that he will face if
he is successful in his confirmation quest, and I hope that he
will be. I am heartened by Senator Tillis' volunteered
comments, and I hope they are an indication of strong
bipartisan support for a nominee who certainly deserves it.
I want to say for those who are watching this hearing, a
lot of work goes into it. The Senators, of course, do their
job, but there are a lot of hardworking and dedicated staff who
back them up and make them look glorious every single day.
I want to thank, first of all, the Majority nomination
staff who spent countless hours preparing materials for me and
the other Democratic Members: Chief Nominations Counsel Phil
Brest; Counsels Sarah Bauer, Gabe Kader, and Joe Charlet;
Nominations Clerk Maggie Hopkins; and Research Assistant Anna
Shepherd.
I would also like to thank the following staff for their
work behind the scenes in the logistics department to help this
hearing go smoothly: Chief Clerk Heather Vachon, Deputy Chief
Clerk Michelle Heller, Assistant Clerk Bentley Olson, Michael
Perkins, Katya Kazmin, Audrey Huynh, Bryan Palmer, and Chesney
Mallory.
Let me also give a nod--and I am sure that Senator Grassley
joins in this as well--to thank the Minority staff for their
work and cooperation: Chief Minority Nominations Counsel Mike
Fragoso, Senior Counsel Lauren Mehler, and the rest of the
Minority nominations team.
So let me say at this point that we are concluding this
hearing, and as a reminder, written questions for Judge Garland
are due at 5 p.m. tomorrow, February 24th. As agreed upon by
both sides, we will proceed to a Committee markup vote on Judge
Garland's nomination on Monday, March 1st.
I thank all of my colleagues, but especially Senator
Grassley. We, as I said at the outset, have had a long-term
friendship which I am careful to protect as much as possible.
He is a good man and an honorable person, and I have enjoyed
working with him over the years.
And with that good news, the hearing stands adjourned.
[Whereupon, at 11:28 a.m., the hearing was adjourned.]
[Additional material submitted for the record for Day 1 and
for Day 2 follows.]
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