[Senate Hearing 117-353]
[From the U.S. Government Publishing Office]
S. Hrg. 117-353
OVERSIGHT OF THE
DEPARTMENT OF JUSTICE
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 27, 2021
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Serial No. J-117-43
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
55-266 WASHINGTON : 2024
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COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa, Ranking
DIANNE FEINSTEIN, California 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
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OCTOBER 27, 2021, 10:04 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 1
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 4
WITNESSES
Witness List..................................................... 77
Garland, Hon. Merrick, Attorney General, U.S. Department of
Justice, Washington, DC........................................ 7
prepared statement........................................... 78
QUESTIONS
Questions submitted to Hon. Merrick Garland by:
Ranking Member Grassley...................................... 94
Senator Leahy................................................ 90
Senator Booker............................................... 91
Senator Graham............................................... 107
Senator Lee.................................................. 109
Senator Cotton............................................... 114
Senator Tillis............................................... 116
Senator Blackburn............................................ 132
ANSWERS
Responses of Hon. Merrick Garland to questions submitted by:
Ranking Member Grassley...................................... 142
Senator Leahy................................................ 134
Senator Booker............................................... 135
Senator Graham............................................... 169
Senator Lee.................................................. 176
Senator Cotton............................................... 188
Senator Tillis............................................... 192
Senator Blackburn............................................ 235
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
About Those Domestic-Terrorist Parents, by The Editorial Board,
October 26, 2021............................................... 238
Dave Yost, Ohio Attorney General, October 26, 2021............... 240
Iowa Association of School Boards (IASB)Statement, October 14,
2021........................................................... 241
State of Indiana, Office of the Attorney General, October 18,
2021........................................................... 243
The Washington Post, October 15, 2021............................ 252
U.S. Department of Justice, United States Attorney, District of
Montana, October 14, 2021...................................... 258
OVERSIGHT OF THE
DEPARTMENT OF JUSTICE
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WEDNESDAY, OCTOBER 27, 2021
United States Senate
Committee on the Judiciary
Washington, DC.
The Committee met, pursuant to notice, at 10:04, in Room
106, Dirksen Senate Office Building, Hon. Richard J. Durbin,
Chairman of the Committee, presiding.
Present: Senators Durbin [presiding], Leahy, Whitehouse,
Klobuchar, Coons, Blumenthal, Hirono, Booker, Padilla, Ossoff,
Grassley, Graham, Cornyn, Lee, Cruz, Sasse, Hawley, Cotton,
Kennedy, Tillis, and Blackburn.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. Good morning. This hearing will come to
order. We've had three oversight hearings this year in the
Senate Judiciary Committee, including the Committee's first FBI
oversight since 2019. Next month, the first Department of
Homeland Security oversight hearing since January 2018. Today,
we're holding the first Department of Justice oversight hearing
since October 18th, 2017.
That was the only time during the 4-year Trump
administration this Committee held an agency-wide Department of
Justice oversight hearing. Annual oversight hearings were the
norm under the Obama administration. I am pleased to restore
this tradition. I thank Attorney General Garland for appearing
today.
You were confirmed by the Senate in March on a bipartisan
basis and took the helm of the Justice Department at a
precarious moment. Under Attorney General Barr and his
predecessors, the Department often played the role of President
Trump's personal law firm.
Time and again, Trump appointees overrode the professional
judgment of the Department's nonpartisan career attorneys to
advance the President's agenda. Their efforts took a dark and
dangerous turn in the waning months of the Trump term when DOJ
political appointees aided President Trump's Big Lie efforts to
challenge the integrity of our election.
First, Attorney General Barr cast aside decades-old policy,
designed to prevent the Department from impacting elections. He
directed U.S. Attorneys and the FBI to investigate the election
fraud claims of nonetheless Rudy Giuliani, after these claims
had been summarily discredited and disproven by countless State
election officials. Barr repeatedly, publicly, and baselessly
claimed that mail voting would be rampant to fraud, a charge he
himself rejected when the votes were actually counted.
After he lost the 2020 election, President Trump found
another Justice Department ally in Jeffrey Clark, a mid-level
political appointee who became the President's Big Lie lawyer.
Clark pushed the Department of Justice leaders to overturn
the election, and when they refused, he plotted with President
Trump to replace them. Trump and Clark brought the Department
to the brink and were thwarted only after the threat of mass
resignations across the Department of Justice.
I commend those Department of Justice attorneys, many of
whom were Trump appointees who, at that critical moment in
history, resisted President Trump and his plot to attack our
democracy.
The events this Committee described in our recent
Subverting Justice Report were among the most brazen examples
of President Trump attempting to bend the Department of Justice
to his will and his agenda. They were the natural culmination
of 4 years of attacks--4 years of attacks on the Department of
Justice.
There is straight line from these events to the violent
insurrection in the Capitol building on January 6th. When Trump
and his allies could not prevail in court and lost case after
case after case claiming voter fraud, they took their Big Lie
to the Justice Department. And when they didn't prevail there,
they dispatched an angry mob to storm the Capitol to stop us
from counting the electoral votes.
I commend the many agents and prosecutors who were working
day in and day out to bring these violent insurrectionists to
justice. I hope the Department will be just as steadfast in
pursuit of those who encouraged and incited the attack, and
those who would prevent the American people and their
representatives from uncovering the truth.
I am sorry that the Republican Senate Leader refused to
join the bipartisan commission that was proposed to investigate
the January 6th insurrection attack. I look forward to hearing
from the Attorney General this morning about the work that is
underway to combat the growing threat of domestic violent
extremism.
The Department cooperated with our Committee's
investigation into the Jeffrey Clark scheme, and it deserves
credit for doing so. Over the course of several months, the
Department provided documents, authorized testimony, and
resolved executive privilege issues, enabling us to uncover on
a bipartisan basis, I might add, just how close we came to a
full-blown constitutional crisis.
Attorney General Garland, when you appeared before us in
February, you acknowledge, and I quote, ``Great respect for
belief in the oversight role of the Committee.'' You committed
your Department to, quote ``be as responsible''--pardon me--
``as responsive as we possibly can to comply with information
request.''
I commend you for the steps you've taken, but I believe I
speak for all of my colleagues in saying there is still room
for improvement when it comes to Department responses. The
Department must deliver on its mission to ensure fair and
impartial justice.
Let me give you an example. In the closing days of the
Trump administration, the Department's Office of Legal Counsel
issued a memo wrongly declaring, in my estimation, that Federal
inmates released to home confinement under the bipartisan CARES
Act must return to the Federal Bureau of Prison's custody
following the COVID-19 emergency. In fact, the CARES Act
includes no such requirement. These nonviolent inmates are
already home and are overwhelmingly reintegrating into
community with success.
On April 23d, I sent you a letter, joined by Senator
Booker, urging you to rescind this memo. Six months later, 6
months later, we still have not received a response.
Another example: in November 2020, the Trump administration
published a rule discouraging inmates from completing programs
under the First Step Act to reduce their chances of
reoffending. This was a major measure that was undertaken, the
First Step Act, by combining a prison reform measure that was
cosponsored by Senator Cornyn and Senator Whitehouse with a
sentencing measure cosponsored by Senator Grassley and myself
and signed into law by the President.
Senator Grassley and I sent you a letter on May 5th urging
the Department to reject the proposed rule and instead enact a
rule consistent with the goal of the First Step Act, of
reducing recidivism. It's been 5 months. In fact, more than 5
months. We still haven't received a response.
The First Step Act allowed the Bureau of Prisons to grant
compassionate release in extraordinary and compelling
circumstances, such as a once-in-a-century global pandemic.
Under the Trump administration, listen to these numbers, the
Bureau of Prisons denied all but 36--36 of 31,000--31,000
compassionate release petitions filed during the pandemic.
In the first 6 months of the Biden administration, the
Bureau of Prisons approved just nine compassionate release
requests. This is extraordinary. When the infection rate in the
Bureau of Prisons was six to seven times the national infection
rate, and the death rate equally appalling, when compassionate
release requests were received, 31,000 of them, only 36 were
allowed.
Meanwhile, the pandemic has been devastating in our Bureau
of Prison facilities. Two hundred sixty-five inmates have died,
including six within the last few weeks. The death of a 42-
year-old man in August came after the Department of Justice
denied his compassionate release request.
Republicans and Democrats worked together to pass the First
Step Act, to make our justice system fairer and our community
safer. These reforms are only as good as their implementation.
Attorney General Garland, as you come before this
Committee, the right to vote and to have the votes of every
American counted is under attack like no time in decades. This
year alone, State legislators have introduced more than 425
bills, making it more difficult for Americans to vote,
particularly people of color. Nineteen States have enacted 33
of these laws. Some of these laws set new limits on voting by
mail. Others cut hours for polling locations. All of them--all
of them are designed to achieve the same outcome, make it more
difficult to vote.
At the same time, Big Lie proponents are pushing new laws
to give partisan State legislators the ability to overturn
election results they don't agree with. They are ousting local
election officials who faithfully apply the law and oversaw an
election that Trump's own Department of Homeland Security
called the most secure in American history. Their efforts
coincide with an unprecedented increase in violent threats
toward State and local election officials.
I'd like to add at this point, about these violent threats,
it is rife across America. Those of us who are airline
passengers know what the flight attendants are facing with
thousands of confrontations, even violent confrontations, over
wearing masks on aircraft. I've sent a letter to you joined by
others saying this has to be taken seriously. These assaults in
the so-called name of liberty are unacceptable.
Your October 4th memo, relative to schools and school board
officials and their own peril, at this point, I think should be
mentioned. I have heard statements from members of this
Committee which I think are really inconsistent with reality.
Those who think the insurrectionist mob of January 6th was
merely a group of tourists visiting the Capitol ignore the
pillaging, the deaths, and the serious injuries to over 100 law
enforcement officials. And those who argue that school board
meetings across America are not more dangerous and more violent
than in the past are ignoring reality.
I went on and just typed in this morning ``school board
violence'' on one of the search engines. Page after page is
coming up. In my State of Illinois, Minden, Illinois, is a
small rural town in Adams County, the western part of our State
that I have represented for almost 40 years. It is a quiet,
solid community. Yet they had their own instance at a school
board meeting where an individual had to be arrested because he
had threatened violence against the school board members over
masks in schools, for example.
That story is repeated over and over again. The State of
Minnesota. Senator Klobuchar knows this story well. The State
of Idaho. We are seeing violence at these school board meetings
at an unprecedented number. I don't believe--I think you made
it clear that you don't believe that we should infringe on free
speech. Free speech does not involve threats and violence,
period. We ought to join with local law enforcement officials
to protect the school board members who are being intimidated
in this way.
I want to close by mentioning an issue I said to you
personally. I'm honored to represent the city which you grew up
in, and which I now visit with great frequency obviously, and
that's the city of Chicago. The gun violence situation there is
intolerable. Intolerable. We're not the only city in America by
any means that's facing this. We need to have your assurance
that there is a concerted, determined effort to deal with gun
violence at the Federal level coordinating our effort with the
State and local officials. With that in mind, I hope we can
reach some agreement to do so very quickly.
Let me hand it off now to the Ranking Member, Senator
Grassley.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Thank you, Chairman Durbin.
This Committee has a constitutional obligation to ensure
that the Department complies with the laws that we write and
execute those laws according to our intent.
In the performance of our constitutional duty, we write
letters, seeking answers and records from the Department and
its component agencies to better understand what they're doing.
Likewise, the entire executive branch, not just DOJ, has an
obligation to respond to congressional oversight requests.
Today, I can say with confidence that under General
Garland's leadership, the Department has failed across the
board to comply with this Committee's Republican oversight
request, and I appreciate very much Chairman Durbin pointing
out a letter that he and I wrote. Five months, haven't received
an answer. If my name being on that letter has any reason it
hasn't been responded to, I'll take my name off of that letter.
In contract, General Garland, you've provided Democrat
colleagues with thousands of pages of materials. Moreover,
President Biden has politicized and inserted himself into the
Department policymaking, notably directing the end of
compulsory process for reporter records and criminal leak
investigations, and most recently inserting himself when he
said the Department should prosecute anyone who defies
compulsory process from the January 6 Committee.
At your confirmation hearing, I read to you what I told
Senator Sessions at his confirmation hearing for being Attorney
General, this: quote, ``If Senator Feinstein,'' who then was
Ranking Member, ``If Senator Feinstein contacts you, do not use
this excuse as so many people use that if you are not a chair
of a committee, you do not have to answer the questions. I want
her questions answered just like you would answer my
questions,'' end of quote that I gave to Senator Sessions. You
said to me at your hearing, quote ``I will not use any excuse
to not answer your questions, Senator'' end of quote. You have
failed to satisfy that statement.
Example. I've asked the Department for records relating to
Hunter Biden's October 2018 firearm incident where his gun
ended up in a trash can near a school. That's a firearm
incident. Your ATF used the Federal Freedom of Information Act
to refuse producing those records when that law doesn't even
apply to the Congress.
I've also asked for information relating to Chinese
nationals linked to the communist Chinese regime that are
connected to the Biden family. One individual, Patrick Hull,
was not just linked to Chinese regime. He was apparently
connected to that country's intelligence service. Hunter Biden
reportedly represented him for $1 million.
Even though the Department already made public in court
filings that DOJ possesses FISA information relating to Patrick
Hull, in response you stated, quote ``Unfortunately, under the
circumstances described in your letter, we are not in a
position to confirm the existence of the information that is
sought if it exists in the Department's possession.'' Well, let
me emphasize. Well, you already made it public in a court
filing. You're telling me you can't even confirm its existence.
With respect to the criminal investigation of Hunter Biden,
Senator Johnson and I wrote to you twice this year regarding a
person named Nicholas McQuaid. Mr. McQuaid was employed at a
law firm until January 20th, 2021, when he was hired to be then
acting Assistant Attorney General for the Department's Criminal
Division. Before he was hired, he worked with Christopher
Clark, who Hunter Biden reportedly hired to work on his Federal
criminal case a month before President Biden's inauguration.
The Department hasn't disputed any of these facts. However,
you refuse to confirm whether Mr. McQuaid recused from the
Hunter Biden case. That seems to be a pretty simple thing to
say one way or the other. The son of the President of the
United States is under criminal investigation for financial
matters. A senior attorney under your command has apparent
conflicts with that matter. Your refusal to answer just
threshold questions casts a very public cloud over the entire
investigation, a cloud that you should easily do away with if
you were--were just a little bit transparent.
When I placed holds on your nominees for the Department's
failure to comply with Republican oversight requests, I said
either you run the Department of Justice, or the Department
runs you. Right now, looks like the Department of Justice is
running you.
Since your confirmation, in less than a year, the
Department has moved as far left as it can go. You've
politicized the Department in ways it shouldn't be. Case in
point, your infamous school board memo. You publicly issued
this memo merely 5 days after the National School Board
Association wrote a letter to President Biden. Incredibly, they
asked the Department to use the antiterrorist Patriot Act
against parents speaking their minds to local school officials.
The School Board Association has since apologized for that
letter, but not before the Department relied on their letter to
mobilize Federal law enforcement in State and local matters.
Meanwhile, actual violent crime is on the rise in the
country. Your memo treats parents speaking freely to be worthy
of the Department's heavy investigation and prosecutorial hand.
You've created a task force now, a task force that includes the
Department's Criminal Division and National Security Division
to potentially weaponize against parents. Your memo also
creates a special training and guidance for local school boards
and school administrators to recognize threats against them.
According to your memo, these threats including--include an
undefined category of, quote ``other forms of intimidation and
harassment.''
The last thing the Justice Department and FBI need is a
very vague memo to unleash their power, especially when they've
shown zero interest in holding their own accountable. I don't--
let's not forget about Obama-Biden administration FISA abuse
during Crossfire Hurricane, abuses that the Department and the
FBI for years denied even to be possible. Then you allowed a
disgraced former FBI official off the hook, paying him hundreds
of thousands of dollars in taxpayers' money when the Inspector
General determined that he lied to investigators seven times.
Yes, seven times over the course of three different occasions.
Or the FBI's and the Department's total failure to protect
hundreds of kids from abuse by Larry Nassar, and then cover it
up. When we had a bipartisan hearing to learn about those
courageous survivors, your Deputy Attorney General didn't even
show up.
Getting back to the National School Board Association
matter, these parents are trying to protect their children.
They're worried about divisive and harmful curricula based upon
Critical Race Theory. They're speaking their minds about mask
mandates. This is the very core of constitutionally protected
speech, and free speech is deadly to the tyranny of government
and is the lifeblood of our constitutional republic.
To say your policies are outside of the mainstream would be
an understatement. Mothers and fathers have a vested interest
in how schools educate their children. They are not, as the
Biden Justice Department apparently believes them to be,
national security threats.
What is a national security threat is things like MS-13.
What is a national security threat is like our open southern
borders. What is a national security threat is the Federal
Government's failing to adequately vet individuals from
Afghanistan. I suggest that you quickly change your course,
because you're losing credibility with the American people, and
with this Senator in particular. Thank you.
Chair Durbin. Thanks, Senator Grassley. We now turn to the
Attorney General for his testimony. First, welcome Honorable
Merrick Garland to testify before the Senate Judiciary
Committee.
For the information of the Members, the mechanics are as
such. After I swear in Attorney General Garland, he will make
his opening statement. Then we'll go to a round of questions.
Each Senator will have 7 minutes. I'm going to try to hold
folks close to that number so everybody can be accommodated. If
there is a request, we may have a second round of questions of
3 minutes per Senator.
Attorney General Garland, would you please stand to be
sworn in.
[Witness is sworn in.]
Thank you. Let the record reflect that the Attorney General
answered in the affirmative. Please proceed with your opening
statement.
STATEMENT OF HON. MERRICK GARLAND, ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Attorney General Garland. Good morning, Chairman Durbin,
Ranking Member Grassley, and distinguished Members of this
Committee. Thank you for the opportunity to appear before you
today.
In my address to all Justice Department employees on my
first day in office, I spoke about three co-equal priorities
that should guide the Department's work: upholding the rule of
law, keeping our country safe, and protecting civil rights.
The first core priority, upholding the rule of law, is
rooted in the recognition that to succeed and retain the trust
of the American people, the Justice Department must adhere to
the norms that have been part of its DNA since Edward Levi's
tenure as the first post-Watergate Attorney General. Those
norms of independence from improper influence, of the
principled exercise of discretion, and of treating like cases
alike are what define who we are as public servants.
Over the last 7 months that I have served as Attorney
General, the Department has reaffirmed and, where appropriate,
updated and strengthened its policies that are foundational for
these norms.
For example, we strengthened our policy governing
communications between the Justice Department and the White
House. That policy is designed to protect the Department's
criminal and civil law enforcement decisions and its legal
judgments from partisan or other inappropriate influences.
We also issued a new policy to better protect the freedom
and independence of the press by restricting the use of
compulsory process to obtain information from or records of
members of the news media.
The second core priority is keeping our country safe from
all threats, foreign and domestic, while also protecting our
civil liberties. We are strengthening our 200 joint terrorism
task forces, the essential hubs for international and domestic
counterterrorism cooperation across all levels of government
nationwide. For fiscal year 2022, we are seeking more than $1.5
billion, a 12 percent increase for our counterterrorism work.
We are also taking aggressive steps to counter cyber
threats, whether from nation states, terrorists, or common
criminals. In April, we launched both a comprehensive cyber
review, and a ransomware and digital extortion task force. In
June, we seized a $2.3 million ransom payment made in Bitcoin
to the group that targeted Colonial Pipeline.
Keeping our country safe also requires reducing violent
crime and gun violence. In May, we announced a comprehensive
violent crime strategy, which deploys all of our relevant
Departmental components to those ends. We also launched five
cross-jurisdictional strike forces to disrupt illegal gun
trafficking in key corridors across the country. And to support
local police departments and help them build trust with the
communities they serve, our fiscal year 2022 budget requests
over $1 billion for grants.
We are likewise committed to keeping our country safe from
violent drug trafficking networks that are, among other things,
fueling the opioid overdose epidemic. Opioids including illicit
fentanyl caused nearly 70,000 fatal overdoses in 2020. We will
continue to use all of our resources to save lives.
Finally, keeping our country safe requires protecting its
democratic institutions, including the one we sit in today,
from violent attack. As this Committee is well aware, the
Department is currently engaged in one of the most sweeping
investigations in its history in connection with the January 6
attack on the Capitol.
The Department's third priority is protecting civil rights.
This was a founding purpose when the Department was established
in 1870. Today, the Civil Rights Division's work remains vital
to safeguarding voting rights, prosecuting hate crimes,
ensuring constitutional policing, and stopping unlawful
discrimination.
This year, we doubled the size of the Civil Rights
Division's voting section, and our fiscal year 2022 budget
seeks the largest ever increase for the division, totaling more
than 15 percent. We have appointed Department-wide coordinators
for our hate crimes work. We have stepped up our support for
the community relations service. We are also revitalizing and
expanding our work to ensure equal access to justice.
In addition to these core priorities, another important
area of Department focus is ensuring economic opportunity and
fairness by reinvigorating antitrust enforcement, combatting
fraud, and protecting consumers. We are aggressively enforcing
the antitrust laws by challenging anticompetitive mergers and
exclusionary practices. In fiscal year 2022, we are seeking a
substantial increase in funds for the division.
We likewise stood up a COVID-19 fraud enforcement task
force to bring to justice those who defraud the Government of
Federal dollars meant for the most vulnerable among us.
In sum, in 7 months, the Justice Department has
accomplished a lot of important work for the American people,
and there is much more to be done. Thank you for the
opportunity to testify this morning. I look forward to your
questions.
[The prepared statement of Attorney General Garland appears
as a submission for the record.]
Chair Durbin. Thank you, Mr. Attorney General.
Hardly a day goes by in the city of Chicago that someone
isn't killed with a firearm. The cases are heartbreaking.
Little boys and girls, standing on their porches and going to
school. On August 7th, the Chicago Police Officer Ella French
and her partner, Officer Carlos Yanez were conducting a routine
traffic stop in the city. The person in the car opened fire.
Officer French, age 29, was murdered, and Officer Yanez was
severely wounded.
I never saw such an outpouring of emotions in the city. I
went down to Rita High School on the South Side near Beverly
where they had the memorial service. There were hundreds, if
not thousands, of women and men in uniform and just ordinary
citizens standing, waiting for their turn to pay tribute to
Ella French for what she had done for her city.
Two days later, we found out from the U.S. Attorney's
Office that the gun used to murder her was obtained from
Indiana through a straw purchase. That's when a person who can
clear a background check buys a gun at a federally licensed gun
dealer and gives it to someone who cannot clear it. What are we
going to do about this? What is going to be done at the Federal
level to show that we're taking this seriously? Ours isn't the
only city that is facing this challenge, and we've got to act,
and act soon.
Attorney General Garland. Mr. Chairman, I am as concerned
as you are, and as I'm sure all Members of this Committee are,
about the rise of violent crime all across the country.
I was in Chicago, as you know, almost the exact time that
the officer that you speak of was killed. I have gone to meet
with the families of an ATF agent who was killed on duty, and I
have stood on the Mall for the candlelight vigils for many
other police officers who were killed in the line of duty.
The Justice Department is doing everything possible with
respect to violent crime. In May of this year, I launched the
Violent Crime Initiative, which brings together all of our law
enforcement on the Federal level to meet with, to coordinate
with, cooperate with State, local, tribal, territorial law
enforcement to fight this issue.
Our Federal agencies, DEA, ATF, Marshals, and the FBI, are
all deeply involved in this. Our programs, Project Safe
Neighborhoods, continue in all these ways, and we are looking
for large amounts of money to provide in grants to police
departments.
Specifically with respect to the gun trafficking that
you're speaking about, as you know, Chicago is one of the task
force cities that we have announced for purposes of tracing
this gun trafficking problem, and we are doing so and finding
the straw purchasers and arresting them, as well.
I could not agree more that this is a serious, serious
problem that needs the attention of the entire country's law
enforcement, and the Justice Department is very much involved
in the fight.
Chair Durbin. I'm going to be meeting with those Federal
law enforcement agencies to talk about the strike force and
what they're doing, how they're cooperating with State and
local law enforcement. I hope to do it maybe even this week on
a private basis, and then see what more I can do. I think we
all have a responsibility when it comes to this issue.
Let me ask you about the home confinement issue. We all
know under the CARES Act there was an allowance for that
possibility. We know that since March of last year, more than
33,000 inmates have been released to home confinement,
including those released under the CARES Act expanded
authority. Less than 1 percent of those inmates have been
returned to BOP facilities for any rules violation.
Do you agree that recalling the thousands of individuals
who have successfully transitioned back into society would be
contrary to the purpose of home confinement, which is to allow
an individual, quote ``a reasonable opportunity to adjust to
and prepare for reentry of that prisoner in the community''?
Attorney General Garland. Senator, I very much agree that
the home confinement program has proven successful, that it
both relieved the pressure on the prisons with respect to
COVID-19 pandemic, but also gave people an opportunity to
adjust themselves to their communities. You are right that we
have seen very few violations of the conditions. I'm very
strongly in favor of being able to continue this program.
Chair Durbin. I'm hoping that we can get a definitive
reversal of the OLC opinion that was dropped on the desk as
President Trump left office and make it very clear what will
happen if and when, and I pray that's soon, the COVID-19
emergency is lifted.
I'd like to move to another topic which has already been
addressed by myself and Senator Grassley. I really invite the
Members of this Committee, if you don't believe me, type
``school board violence'' into your computer and take a look at
what's happening. It's happening all across the country. In my
State, as I mentioned, a 30-year-old man arrested and charged
with battery, disorderly conduct after striking a school board
member at meeting.
California, father yelling profanities at an elementary
school principal. His daughter calmed him down. He later
returned to confront the principal and struck a teacher in the
face who attempted to intervene.
Ohio, a school board member sent a threatening letter
saying, ``We're coming after you.'' After the board member
posted the letter on Facebook, the president of the Board of
Education for a nearby district reported his board had received
similar threats.
Pennsylvania, person posted threats on social media which
required the police to station outside each of that district's
school. Local law enforcement is investigating the person who
made the treats and will maintain a police presence at schools
and school board meetings for the foreseeable future.
In Texas, a parent physically assaulting a teacher, ripping
off her mask. It goes on and on and on. These are not routine
people incensed or angry. These are people who are acting out
their feelings in a violent manner over and over again, the
same people we see on airplanes and other places, same people,
some of whom we saw here on January 6th.
When you responded as quickly as you did to that school
board request, did you have second thoughts after they sent a
follow-up letter saying they didn't agree with their original
premise in their first letter?
Attorney General Garland. Senator, I think all of us have
seen these reports of violence and threats of violence. That is
what the Justice Department is concerned about. It's not only
in the context of violence and threats of violence against
school board members, school personnel, teachers, staff. It's
an a rising tide of threats of violence against judges, against
prosecutors, against secretaries of State, against election
administrators, against doctors, against protestors, against
news reporters. That's the reason that we responded as quickly
as we did when we got a letter indicating that there were
threats of violence and violence with respect to school
officials and school staff.
That's the reason. That's what we are concerned about.
That's part of our core responsibility. The letter that we--was
subsequently sent does not change the Association's concern
about violence or threats of violence. It alters some of the
language in the letter, language in the letter that we did not
rely on and is not contained in my own memorandum. The only
thing the Justice Department is concerned about is violence and
threats of violence.
Chair Durbin. Senator Grassley.
Senator Grassley. Yes. Before I ask my question, I'd like
permission to introduce in the hearing record a letter from the
Iowa Association of School Boards disagreeing with the National
School Boards Association request for intervention from Federal
agencies and law enforcement and other concerns that they have.
Yes.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Grassley. General Garland, regarding your October
4th school board memo, last week you said the memo was for law
enforcement audience, despite it being on your public website
as a press release. As a result of your memo, local school
officials and parents may not speak up in these meetings out of
fear that the Federal Government will do something to them.
That's a poisonous, chilling effect.
Apparently that letter wasn't actually supported by
organization, but was sent by two unauthorized staff. Last
week, the organization disavowed it. Since you and the White
House based your memo on this delegitimized letter, I assume
you're going to revoke your extremely divisive memo that you
said was instigated because of that letter. That's a question.
Attorney General Garland. Senator, the memo which you refer
to is one page. It responds to concerns about violence, threats
of violence, other criminal conduct. That's all it's about. All
it asks is for Federal law enforcement to consult with, meet
with local law enforcement to assess the circumstances, to
strategize about what may or may not be necessary, to provide
Federal assistance if it is necessary.
Senator Grassley. Presumably, you wrote the memo because of
the letter. The letter is disavowed now. So you're going to
keep your memo going anyway, right? Is that what you're telling
me?
Attorney General Garland. Senator, I have the letter from
NSBA that you're referring to. It apologizes for language in
the letter, but it continues its concern about the safety of
school officials and school staff. The language in the letter
that they disavow is language that was never included in my
memo, and never would have been. I did not adopt every concern
that they had in their letter. I adopted only the concern about
violence and threats of violence, and that hasn't changed.
Senator Grassley. Who in the Justice Department was
responsible for drafting your polarizing October 4th memo?
Attorney General Garland. I signed the memo, and I worked
on the memo.
Senator Grassley. The press release accompanying your memo
mentions that the National Security Division will get involved
in school board investigations.
Is the Justice Department National Security Division really
necessary for keeping local school boards safe if parents
aren't domestic terrorists? If the Patriot Act isn't being
used, why is the National Security Division involved at all?
This kind of looks like something that would come out of some
communist country expansive definition of national security.
Attorney General Garland. The memo is only about violence
and threats of violence. It makes absolutely clear in the first
paragraph that spirited debate about policy matters is
protected under our Constitution. That includes debate by
parents criticizing school boards. That is welcome. The Justice
Department protects that kind of debate. The only thing we're
concerned about, Senator, is violence and threats of violence
against school officials, schoolteachers, school staff, just
like we're concerned about those kind of threats against
Senators, Members of Congress, election officials.
In all of those circumstances, we are trying to prevent the
violence that sometimes occurs after threats.
Senator Grassley. Your memo stated that the Justice
Department is opening dedicated lines of communication for
threat reporting, assessment, and response. What is the
Department doing with tips it receives on this dedicated line,
and what are you doing with those parents who have been
reported?
Attorney General Garland. The FBI gets complaints, concerns
from people around the country for all different kinds of
threats and violence. That's what this is about. A place where
people who feel that they've been threatened with violence can
report that. These are then assessed, and they are only pursued
if, consistent with the First Amendment, we have a true threat
that violates Federal statutes or that needs to be referred to
a State or local government or local law enforcement agency for
their assistance.
Senator Grassley. On the other hand, are there criminal
investigations being opened for instances where school
officials are trying to assess private data of parents with
opposing views on Critical Race Theory?
Attorney General Garland. I don't know about that, but the
Justice Department certainly does not believe that anybody's
personal information should be accessed in that way. If there
is a Federal offense involved, or a State or local offense
involved, then of course those should be reported.
Senator Grassley. The nonpartisan Justice Department
Inspector General established that Andrew McCabe lied under
oath to FBI investigators. He lied under oath to the Justice
Department Inspector General. It should also be noted that
McCabe leaked government information to the media, and then
called the New York and Washington FBI field offices and blamed
them for the very leaks that he caused.
Under your leadership, instead of punishing him, the
Department reinstated his retirement, expunged his records as
part of the settlement. He will reportedly receive $200,000 of
retirement back pay, and his attorney will reportedly receive
$500,000 in legal fees. It seems to me that that's beyond
incredible.
General Garland, did you authorize the McCabe settlement?
If you--not, who did?
Attorney General Garland. Senator, the McCabe settlement
was the recommendation of the career lawyers litigating that
case based on their prospects of success in the case. The case
did not involve the issues about lying. It involved a claim
that he was not given amount of time necessary to respond to
allegations. The litigators concluded that they needed to
settle the case because of the likelihood of loss on the merits
of that claim.
The Inspector General's report still stands. There is no--
we have not questioned in any way the Inspector General's
findings. The reference with respect to false statements was
made to the Justice Department in the previous administration
and declined in the previous administration. The only issue
here was an assessment of litigation merits.
Senator Grassley. Short follow-up. Do you agree with the
taxpayer--since you didn't, somebody else authorized it--do you
agree with the taxpayer picking up a multimillion-dollar bill
for someone that lied under oath to Government officials?
Attorney General Garland. I think the assessment made by
the litigators was that the bill to the taxpayers would be
higher if we didn't resolve the matter as it was resolved.
Senator Grassley. Thank you, Mr. Chairman.
Chair Durbin. Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman. Attorney General
Garland, good to see you and thank you for being here. I'm sure
the Members of the Committee are eager to discuss with you what
the Justice Department is doing, what could be done better.
I'll just say this. After four tumultuous years in which
the former President viewed the Justice Department as his
personal law firm, I'm pleased the Department is again living
up to the most fundamental principle in our American justice
system that no one--nobody is above the law. That's certainly
what I learned about the Justice Department when I was in law
school. That's the experience I'd had with it for years as a
prosecutor and as a litigator.
I was dismayed seeing what was happening the past 4 years,
and I thank you, Attorney General, for bringing the Department
back from the brink. There's still a lot to be done, but I
think the Americans should take comfort that the rule of law is
again being enforced.
It's hard to overstate how urgently we must act to protect
American's constitutional right to vote. There is reason for
alarm. Many states are rapidly moving to restrict access to the
ballot for tens of thousands of Americans of all walks of life.
In the wake of the Shelby County and this year's Brnovich
decision, the Department's tools to stem this tide of voter
suppression have been greatly diminished. I know you're doing
whatever you can to defend the right to vote.
How does congressional inaction in responses to these
Supreme Court decisions limit the ability of the Department to
protect Americans' constitutional right to vote?
Attorney General Garland. Thank you for that question,
Senator. The right to vote is central pillar of our democracy,
and as I've said many times, it's the central pillar that
allows all other rights to proceed from it.
The Justice Department was established in part to protect
the rights guaranteed under the 13th, 14th, and 15th Amendment
to vote. The Voting Rights Act gave us further authorities in
that respect.
We are doing, as you say, everything we can. We have
doubled the size of the Voting Rights section. We brought a
Section 2 case. There are limitations on our authority that the
Supreme Court has imposed, one of which is the elimination of
Section 5 of the Voting Rights Act, which provided an
opportunity to do preclearance reviews so that we did not have
to review each matter on a one-by-one basis. That was Shelby
County as you pointed out. Recently in the Brnovich case, a
narrowing of what we regarded as the meaning of Section 2 and
our authorities under Section 2.
Both of those could be fixed by this Congress, and if they
were, it would give us considerably greater opportunity and
ability to ensure the sacred right to vote.
Senator Leahy. Didn't the Supreme Court make it very clear
that we could fix that if the Congress wanted to?
Attorney General Garland. That's correct. In the opinions
they've indicated these were matters that could be fixed by the
Congress.
Senator Leahy. I hope we will, because I think it's very
important that all Americans be protected in their right to
vote. I know my own State of Vermont, we take that very
seriously.
We have the bipartisan VOCA fix to stay in the Crime
Victims Fund Act of 2021. It's been signed into law. A major
piece of this legislation requires funds collected and deferred
in non-prosecution agreements be deposited into the Crime
Victims Fund, which had been projected to reach a 10-year low.
Since this bill has become law, have any funds from deferred or
non-prosecution agreements been deposited into the Crime
Victims Fund, and if not, why not?
Attorney General Garland. Senator, the VOCA fix was
something we sought, and we're grateful for your support for
and for your introduction of. We acted immediately after it was
passed, and something like north of $200 million has already
been deposited in the fund thanks to that act. We now project
that the fund should be liquid all the way through the end of
2022.
Senator Leahy. Thank you. We can review it after that,
because I think you and I would both agree we want to have
long-term sustainability in this fund.
Attorney General Garland. Absolutely.
Senator Leahy. Let's work together on that.
There's been some discussion here and elsewhere about the
Larry Nassar investigation. Chairman had these very impressive
gymnasts who testified before us. It was heart wrenching
listening to them. They talked about how they were seeking
accountability, and I could not help but think how brave they
were to testify.
The Justice Department initially declined to bring charges
against the disgraced FBI agents involved in the investigation.
I was concerned, and I said at the time that I've seen many
people prosecuted for lying to FBI agents. Here you had two FBI
agents who lied to FBI agents. One was fired, the other
resigned. No prosecutions.
Is the Department now reviewing that decision not to
prosecute, and do you have any update with regard to that
review?
Attorney General Garland. Senator, I think heart wrenching
is not even strong enough as a description of what happened to
those gymnasts and to the testimony they gave. I believe Deputy
Attorney General Monaco said at her hearing that we are
reviewing this matter. New evidence has come to light, and that
is cause for review of those matters that you're discussing.
Senator Leahy. I hope you will because, as I said, I've
seen so many prosecutions of somebody for lying to the FBI
agent, and I understand that. When an FBI agent lies to an FBI
agent, they should also face the same that anybody else does.
Thank you very much, Mr. Chairman.
Chair Durbin. Thank you, Senator Leahy.
Senator Grassley. Mr. Chairman, could I put something in
the record from 17 State attorney generals expressing their
disagreement with the Department's October 4th memorandum and
ask that that memorandum be withdrawn?
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Graham.
Senator Graham. Thank you, Mr. Chairman. Mr. Attorney
General, are you aware of the caravan of about 3,000 people
approaching the State of Texas?
Attorney General Garland. I have read about it in the news
media, yes. I didn't know--I think it's south of Mexico City is
what I read. Is that what you're talking about?
Senator Graham. Yes. They're apparently headed toward
Texas. What would you tell these people?
Attorney General Garland. I would tell them not to come.
The job of the Justice Department has to do with prosecution
and with the way in which the asylum and removal claims are
adjudicated.
Senator Graham. All right. You would tell them not to come?
Attorney General Garland. It depends on why they are
coming.
Senator Graham. If they're coming to make asylum claims,
what would you tell them?
Attorney General Garland. Well, look. The Department of
Homeland Security is the agency that is responsible for border
control.
Senator Graham. Right. Right. I get that. You're the
Attorney General of the United States. Do you think our asylum
laws are being abused?
Attorney General Garland. The asylum laws are statutes
passed by the Congress.
Senator Graham. Yes. Do you think they're being abused?
Attorney General Garland. I think this is a--that question
is one that has to be evaluated on a one-by-one basis in each--
--
Senator Graham. Have you talked to the--when is the last
time you've been to the border?
Attorney General Garland. I think a week ago, maybe 10 days
ago.
Senator Graham. Did they tell you anything about asylum
claims being made by people that are mostly economic claims,
not asylum claims? Did they mention that to you?
Attorney General Garland. I don't recall exactly. I think
it's fair----
Senator Graham. You don't recall being told by the Border
Patrol that they're overwhelmed, they can't hold the line much
anymore that we've had 1.7 million people apprehended, and the
big magnet, the pull factor is the way the catch and release
program around asylum, that didn't stick out to you?
Attorney General Garland. That was not a discussion that I
had when I was at the border.
Senator Graham. Who did you talk to?
Attorney General Garland. I was at the border at Nogales
and spoke to a Border Patrol----
Senator Graham. Yes, I was there about 6 months ago. They
never mentioned to you the pull factors of illegal immigration?
Attorney General Garland. This was a review of what they
were doing at the border with respect to----
Senator Graham. It's a simple question. They never
mentioned to you that they've got a problem with being overrun
by asylum seekers?
Attorney General Garland. I know from reading the news
media that Border Patrol agents feel that way.
Senator Graham. I mean, it's not about reading the paper.
You were there talking to them.
Attorney General Garland. I don't recall that's--I don't
want to----
Senator Graham. Okay.
Attorney General Garland [continuing]. Tell you about a
conversation that I'm not sure happened.
Senator Graham. Yes, I'm just stunned that you can't recall
that.
Let's talk about Afghanistan. The Secretary--Undersecretary
for Defense Policy, Mr. Kahl, said, ``While ISIS-K poses more
of a short-term external threat, Al Qaeda could regain the
ability to launch attacks outside of Afghanistan within a year
or two.'' Do you agree with that?
Attorney General Garland. I agree that Al Qaeda has always
presented and continues to present a persistent threat to the
United States homeland.
Senator Graham. Well, no. The question is what's changed?
You say always. Has any recent event changed the likelihood of
an attack?
Attorney General Garland. I don't know----
Senator Graham. You don't know that we withdrew from
Afghanistan?
Attorney General Garland. I know we withdrew. I don't know
whether the withdrawal will increase the risk from Al Qaeda or
not. I do know----
Senator Graham. You're the Attorney General of the United
States. Secretary Wray testified openly twice that due to the
lack of ability to have eyes and ears on the ground, and the
unreliability of the Taliban, that an attack on the United
States within 6 months, a year, is far more likely after a
withdrawal. You're not aware that he said that?
Attorney General Garland. The job of the Justice Department
and the job of the FBI is to protect against those kind of
attacks in the homeland.
Senator Graham. Does it make sense that that would be a
dynamic of our withdrawal? Do you trust the Taliban to police
Al Qaeda and ISIS on our behalf?
Attorney General Garland. I do not trust the Taliban.
Senator Graham. Matter of fact, they have openly told us
they will not work with us regarding containing the Al Qaeda-
ISIS threat. Are you aware of that?
Attorney General Garland. I think there has been
inconsistent statements, but----
Senator Graham. No, no. They just literally said that.
Attorney General Garland. I think there have been
inconsistent statements, but their statements are not anything
that we can rely on.
Senator Graham. When they tell you to your face we're not
going to help you, do you think they're kidding? Do you think
they really will help us, but they're just telling us to our
face that they won't?
Attorney General Garland. Senator, I think ISIS-K, Al
Qaeda, associated forces are and continue to be----
Senator Graham. We're talking about the Taliban. The
Taliban has told the United States they will not work with our
counterterrorism forces when it comes to Al Qaeda or ISIS. What
response should we have regarding the Taliban when they say
that?
Attorney General Garland. I think we have a number of
different tools available.
Senator Graham. Like what?
Attorney General Garland. We have economic sanctions. They
need money from the United States for humanitarian and other
reasons. This is a----
Senator Graham. The leverage over the Taliban is whether or
not we'll give them money.
Attorney General Garland. Senator, the job of the Justice
Department is protecting--using the FBI and the National
Security----
Senator Graham. The National Security Division is part of
our counterterrorism operation, right?
Attorney General Garland. It is one----
Senator Graham. Has anybody from the National Security
Division briefed you about the increased likelihood of attack
emanating from Afghanistan after our withdrawal?
Attorney General Garland. Every day, I'm briefed by the
FBI----
Senator Graham. No, my question is specific. Has anybody
briefed you about the increased likelihood of an attack
emanating from Afghanistan by ISIS or Al Qaeda because of our
complete withdrawal?
Attorney General Garland. We are worried about the risk of
attack by ISIS-K----
Senator Graham. I know. It's one thing to be worried. Has
anybody told you the likelihood of an attack is greater because
of our withdrawal or not?
Attorney General Garland. There are different views about
the degrees of likelihood. That doesn't change our posture. We
just all are being protective.
Senator Graham. It doesn't change your posture if you go
from a possibility of being attacked to a 6-month to a year
time window of being attacked.
Attorney General Garland. We have asked for substantial
additional funds for our counterterrorism operations in light--
--
Senator Graham. Is that in light of the withdrawal from
Afghanistan?
Attorney General Garland. That's in light of a lot of
changing circumstances in the world with respect----
Senator Graham. Let me just put a fine point on this.
Secretary Wray has told the world that ISIS and Al Qaeda in
Afghanistan present a threat to our homeland. The Taliban has
told us they're not going to help us when it comes to policing
these groups. The Department of Defense has said we're 6 months
to a year away from a possible attack by ISIS and Al Qaeda.
Just seems to me there's not a sense of urgency about this.
Attorney General Garland. There is a sense of urgency. This
is----
Senator Graham. What have you done specifically--and I'll
end with this. Specifically, what have you done since with our
withdrawal in Afghanistan to deal with this new threat?
Attorney General Garland. We have strengthened and
increased the efforts of our joint terrorism task forces. I
have met with them.
Senator Graham. Literally, what have you done?
Attorney General Garland. I'm telling you.
Senator Graham. Just put it in writing. Just write down
what you've done.
Attorney General Garland. I'll be happy to have our staff
assess what----
Senator Graham [continuing]. I've told you and return it.
Chair Durbin. Thank you, Senator Graham. Senator
Whitehouse.
Senator Whitehouse. Thank you, Chairman. Welcome, Attorney
General Garland.
Two topics. The first is executive privilege. We've been
through a rather bleak period with regard to executive
privilege. I think you could call it the anything goes period,
in which any assertion of executive privilege, no matter how
fanciful or preposterous, was essentially allowed to stand in
very significant departure from the law that has been out there
for years regarding executive privilege.
At the same time that the substance of executive privilege
was being expanded beyond recognition, the procedure for
evaluating executive procedure determinations was completely
ignored. And this is a procedure that was established by
President Reagan's White House.
We now have a situation in which there is very substantial
destruction and disarray in the area of executive privilege
determinations. As you know, under the Reagan memo, the
Department of Justice had a role kind of as an arbiter to be
the honest broker between whatever executive agency was
objecting and whatever congressional committee was pursuing
information. That role completely fell apart in the last
administration, and it needs to be rebuilt in some predictable
fashion.
The role of the courts has become highly problematic
because delay is very often dispositive in these matters, and
the courts are now a haven for delay with respect to executive
privilege determinations. I think we need to look at that as
well.
Senator Kennedy and I had a hearing on this executive
privilege problem in our Court Subcommittee. The Department of
Justice was not represented at that hearing, but I would like
to ask you to detail somebody from the Department of Justice to
talk to Senator Kennedy and me about this executive privilege
problem, and work with us on trying to figure out a solution,
making the role of the Department of Justice more clear and
transparent and perhaps embodying it in rule or regulation or
law, and trying to figure out how to accelerate at the courts a
way to get quicker decisions, because otherwise, as I said,
delay is just dispositive, and we lose, not because we're
wrong, but because we're delayed.
Would you have somebody be our point of contact on that,
please? When I say detail, I don't mean onto our payroll, you
know. I just mean as a point of contact.
Attorney General Garland. Yes. Absolutely. Of course.
Senator Whitehouse. Great. Thank you. Next, I've been
pursuing the question of the Department's investigation into
January 6 since pretty early days, starting with a letter in
January 8th that asked about the resources that were being
deployed into this investigation and whether a task force--a
prosecution task force was being set up and so forth and then
another letter February 24th with regard to domestic extremist
violence groups' potential role.
We've learned a little bit more now, and we've learned that
there was a lot of money sloshing around in the background
behind the January 6 rally and behind the raid, the riot in the
Capitol.
For instance, we know that the Bradley Foundation, which is
a big funder, gave money to Turning Point USA and to Public
Interest Legal Foundation. It gets even more interesting
because Turning Point USA has a twin called Turning Point
Action, 501(c)(3), 501(c)(4) combo, which also got money from
the Judicial Crisis Network to support the so-called
Italygate--debunked Italygate theory. At the same time, the
Public Interest Legal Foundation had as its director Mr.
Eastman, who was cranking out his fanciful memo for President
Trump how to overturn the election.
The Judicial Crisis Network is the same thing from a
corporate standpoint as something called the Honest Elections
Project, which was bringing a fanciful case in Pennsylvania
regarding election fraud. The Judicial Crisis Network was also
funding RAGA, the Republican Attorney Generals Association,
which was making robocalls to get people to come to the riot.
I don't know what's going on behind all of that, but I am
hoping that the due diligence of the FBI is being deployed, not
just to the characters who trespassed in the Capitol that day
and who engaged in violent acts, but that you're taking the
look you would properly take at any case involving players
behind the scenes, funders of the enterprise, and so forth in
this matter as well, and there has been no decision to say
we're limiting this case just to the people in the building
that day. We're not going to take a serious look at anybody
behind it.
Attorney General Garland. Senator, I'm very limited as to
what I can say----
Senator Whitehouse. I understand that.
Attorney General Garland [continuing]. Because we have a
criminal investigation going forward.
Senator Whitehouse. Please tell me it has not constrained
only to people in the Capitol.
Attorney General Garland. The investigation is being
conducted by the prosecutors in the U.S. Attorney's Office and
by the FBI Field Office. We have not constrained them in any
way.
Senator Whitehouse. Great. The old doctrine of follow the
money, which is a well-established principle of prosecution is
alive and well.
Attorney General Garland. It's fair to say that all
investigative techniques of which you are familiar, and some
maybe that you're not familiar with because they post-date your
time, are all being pursued in this matter.
Senator Whitehouse. Thank you. Thank you, Chairman.
Senator Leahy. [Presiding.] Thank you very much. Senator
Cornyn.
Senator Cornyn. Thank you. Good morning, Mr. Attorney
General. On September the 29th, 2021, as you know, the National
School Board Association wrote a letter to the President asking
him to address the disruptions, the confrontations that we've
seen at local school boards across the country, parents
expressing their concerns about not only the curriculum, but
also just generally the education of their children in public
schools. Would you agree that parents have a fundamental right
to be involved in their children's education?
Attorney General Garland. Absolutely. This is the job of
parents to be involved, and this is the role of the First
Amendment to protect their ability to be involved. That's why
my memo begins by saying that we respect the right to spirited
debate about curriculum, about school policies, about anything
like that.
Senator Cornyn. It's not just a good idea. It's actually
protected by the Constitution of the United States. Would you
agree?
Attorney General Garland. Absolutely.
Senator Cornyn. On October the 4th, a few days later, less
than a week later after the National School Board Association
wrote this letter, the Justice Department issued the memo
that's already been discussed. Why did this rise to the level
of a Federal concern as opposed to being addressed at the local
and State level?
Attorney General Garland. This arises out of repeated
reports of violence and threats of violence, not only with
respect to school boards and school officials and teachers, but
as I mentioned earlier, also with respect to secretaries of
State and election administrators, judges, prosecutors,
Senators, Members of Congress.
The Justice Department has two roles here. We assist State
and local law enforcement in all ways, and we enforce Federal
laws which prohibit threats of violence by telephone, by email.
Senator Cornyn. You as a longtime Federal judge with a
distinguished legal career, you understand that not every
crime, assuming it is a crime, is a Federal crime, correct?
Attorney General Garland. Absolutely.
Senator Cornyn. Some of these things, unless there is some
nexus to interstate commerce or to the Federal Government,
they're largely within the purview of the State and local law
enforcement authorities, correct?
Attorney General Garland. I think you put that correctly.
We have authority with respect to the mail, with respect to the
internet, with respect to telephones.
Senator Cornyn. Right. We're going to give you the example,
if somebody says to the school board member, if you do that,
I'm going to meet you outside and punch you in the nose, is
that a Federal offense or----
Attorney General Garland. No, that's not a Federal offense.
Senator Cornyn. I agree. I agree.
Attorney General Garland. There's nothing in this memo
suggesting that it is.
Senator Cornyn. Why in the world would you cite the
National Security Division in this memo as being one of the
appropriate entities of the Department of Justice to
investigate and perhaps prosecute these offenses?
Attorney General Garland. My memo itself doesn't mention
the National Security Division. It is mentioned in another memo
that was released by the Department. The National Security
Division, like all the other law enforcement components,
cooperates with and is involved in discussions about how to go
forward on different kinds of matters.
They were involved, for example, in the election threats.
They were involved in the threats against judges and
prosecutors. They were involved in the hate crimes threats
cases. It's just a natural part of our internal analysis.
Senator Cornyn. Let me ask you. Did you see the National
School Board Association letter to President Biden before you
issued your memorandum on October the 4th?
Attorney General Garland. Yes, I did, and that was part of
the reason. Their expression at the beginning of that
memorandum of----
Senator Cornyn. They raised--they raised some of the
concerns that you voiced here today, correct?
Attorney General Garland. They raised some of them. They
raised others that I don't agree with and were not included in
my memo.
Senator Cornyn. You're aware that on October the 22d, the
National School Board Association apologized for its letter.
You're aware of that, aren't you, sir?
Attorney General Garland. I am, but----
Senator Cornyn. It said--it went on to say, ``we regret and
apologize for the letter. There was no justification for some
of the language in the letter''. They've acknowledged that,
``the voices of parents should be and must continue to be heard
when it comes to decisions about their children's education,
health, and safety''.
You did not apologize for your memorandum of October the
4th, even though the National School Board Association did. Why
didn't you rescind that memorandum and apologize for the
memorandum?
Attorney General Garland. A core responsibility of the
Justice Department, as I said in my opening, is protecting
Americans from violence and threats of violence.
Senator Cornyn. You just said not every act of violence is
a Federal crime, correct?
Attorney General Garland. Right. Not every bit of street
crime and the kind of violence that we've been talking about
earlier today is also a Federal crime. We assist State and
locals to help them in their investigations of these kind of
matters. Every single day, in non-Federal matters, we are
partners with our State and local partners.
Senator Cornyn. Mr. Attorney General, you've acknowledged
that parents have a right--a constitutional right to be heard
on the education of their children in public schools. Can you
imagine the sort of intimidation, the sort of bullying impact
that a memorandum from the Department of Justice would have,
and how that would chill the willingness of parents to exercise
their rights under threat of Federal prosecution? Did you
consider the chilling impact your memorandum would have on
parents exercising their constitutional rights?
Attorney General Garland. The only thing this memorandum is
about is violence and threats of violence. It opens with a
statement----
Senator Cornyn. My question is did you consider the
chilling effect this would have on parents' constitutional
rights?
Attorney General Garland. To say that the Justice
Department is against violence and threats of violence----
Senator Cornyn. Did you consider the chilling effect your
memorandum might have on parents exercising their
constitutional rights? I think you can answer that yes or no.
Attorney General Garland. What I considered, which I wanted
the memorandum to assure people that we recognize the rights of
spirited debate, and so that's----
Senator Cornyn. Mr. Attorney General, you're a very
intelligent and accomplished lawyer and judge. You can answer
the question.
Attorney General Garland. I did not----
Senator Cornyn. Did you consider the chilling effect that
this sort of threat of Federal prosecution would have on
parents' exercise of their constitutional rights to be involved
in their children's education?
Attorney General Garland. I don't believe it's reasonable
to read this memorandum as chilling anyone's rights. It's about
threats of violence, and it expressly recognizes the
constitutional right to make arguments about your children's
education.
Senator Leahy. As Senators are going back and forth for
votes during this time, we're going to have to try to keep to
the----
Senator Cornyn. Let the record reflect the Attorney General
refused to answer the question.
Senator Leahy. Let the record reflect that the Senator from
Texas was allowed to go over his allotted time. Senator
Klobuchar.
Senator Klobuchar. Thank you very much. Just to confirm
something, Mr. Attorney General, can you confirm to this
Committee as you did earlier before the House Judiciary
Committee that the purpose of the memo that you were just
discussing with Senator Cornyn is to have meetings to discuss
whether there is a problem, to discuss strategies, to discuss
whether law--local law enforcement needs assistance or doesn't
need assistance? Is that the purpose of it?
Attorney General Garland. Yes. I thank you for making that
point, Senator. I say that in the memo that the purpose of the
memo is to convene meetings with Federal, State, and local,
tribal leaders, and to facilitate discussions of strategies for
addressing threats to assess the question and to open lines of
communication about such threats.
Senator Klobuchar. Thank you. I want to move to some other
threats. That is a hearing that actually Senator Blunt and I
had yesterday. It was a bipartisan hearing. We both called
witnesses. It was before the Rules Committee. It was with both
Republican and Democratic election officials, the attorney
general of Arizona, a Republican local official in
Philadelphia. They told stories that horrified Senators on both
sides of the aisle.
The Philadelphia election official commissioner, local
election official, had been sent letters basically saying that
they were going to kill him and his three kids, naming the
kids, as well as putting his house and his address out there.
Katie Hobbs, the attorney general of Arizona, received a
voicemail saying, ``I am a hunter and I think you should be
hunted. You will never be safe in Arizona again.''
Could you talk about what's going on with threats against
election workers? By the way, we had the Republican Secretary
of State from Kentucky talked about the fact that it has been
difficult. They are losing--in many jurisdictions across the
country, they don't have enough election workers because people
are afraid. We don't have to discuss at length where these
threats are coming from. I just want to have election
officials. I want to have a functioning democracy. Can you
provide an update on the election threats task force and talk
about the kind of threats we're seeing to election officials?
Attorney General Garland. Yes, Senator. Very much like the
circumstances with respect to the school boards, when the
National School Board Association wrote us a letter advising of
threats of violence and violence, earlier this year we received
communications from the National Association of Secretaries of
State and the National Association of Election Administrators
raising concerns about threats of violence and violence in that
area.
In that, soon thereafter, I met virtually unfortunately
because of the pandemic with a large number of election
administrators and secretary of states where they recounted the
kind of threats that you're talking about. That led us to
establish a task force which again coordinated efforts between
the Federal law enforcement agencies, U.S. Attorney's offices,
and State and local law enforcement across the country.
It is the case that many of those kind of threats can be
handled by State and local law enforcement and should be, where
they're capable of doing that. The Federal Government has an
important role, as you say, in protecting our democracy and
protecting its threats against public officials. That is an
ongoing task force evaluating threats in that particular area.
Senator Klobuchar. Thank you. Thank you. To another area,
as Chair of the Competition Policy and Antitrust Subcommittee,
I've urged the Justice Department to make antitrust enforcement
a top priority. We recently had a nominations hearing for
Jonathan Kanter. That seems to be moving ahead. I support the
Division's enforcement efforts, including I know they're
preparing for 18 trials, which is the most in decades.
Could you talk about the antitrust budget? Senator Grassley
and I have passed a bill with the support of the Members of
this Committee to add some additional resources to the
Antitrust Division. Senator Lee and I have held numerous very
informative hearings about various issues related to antitrust.
Could you talk about what's happening there?
Attorney General Garland. Yes. The Justice Department is
very much committed. As I said, it's a key focus of our
attention, antitrust enforcement, because it's essential for
the consumer well-being and for the well-being of our citizens.
We have aggressively moved in this area. We've already
stopped a merger of two of the top three largest international
insurance brokers. We have, as you say, continued--we are in
the middle of trials--criminal trials with respect to price
fixing and market allocation. We have the ongoing matter
involving exclusionary conduct in the Google case. We are
looking--we have investigations and attention in many areas
from healthcare to agriculture to allocations within labor
markets.
Senator Klobuchar. Could I just ask you? We were talking
about the criminal cases. Could giving the antitrust agencies
authority to seek substantial civil fines for Sherman Act
violations help enforcers deter anticompetitive conduct?
Attorney General Garland. I'm sorry. I didn't----
Senator Klobuchar. Civil fines. Would that be helpful?
Attorney General Garland. Yes. Having the ability to seek
civil fines as well would be helpful. Of course, if we succeed
in a criminal case, the follow-on civil cases become quite
easy, as I know from my own antitrust practice. We are down in
the number of attorneys in the Antitrust Division considerably,
and we need an expansion. That's why we've asked for a 9-
percent increase, a total increase of $201 million in our
fiscal year 2022 budget.
The number of mergers has skyrocketed, and the number of
people we have in the Division evaluating those mergers has
decreased. We need help in that regard.
Senator Klobuchar. Thank you. I really appreciate the
bipartisan work we've done in this Committee on that front.
Last question. In July, the Department announced that it
was adopting a new policy that restricts the use of compulsory
process to obtain information from members of the news media
acting within the scope of news gathering activities, an issue
we discussed, you and I discussed at your confirmation hearing.
As a part of that announcement, you asked the Deputy Attorney
General to undertake a review process to further explain,
develop, and codify the policy. Can you provide an update on
the steps the Deputy Attorney General has taken to ensure that
the new policy is implemented?
Attorney General Garland. Yes. Issuing a memo is good, and
it controls the Justice Department now. The next step though is
to have a regulation, which will give us some greater
permanence. The next step after that would be legislation,
which the Justice Department supports. What the Deputy Attorney
General is doing now is trying to formulate the general
outlines of my memorandum into a regulation, which can replace
the current pretty detailed regulations that we have. That's
what she's involved in right now.
Senator Klobuchar. Excellent. Thank you very much.
Chair Durbin. [Presiding.] Mr. Attorney General, we had
promised you a 5-minute break at 11:30. We can either take it
right now, or I can have Senator Lee and Coons ask. Up to you.
Attorney General Garland. I'm happy to go ahead with
Senator Lee and Coons.
Chair Durbin. Let's proceed. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Thank you, Attorney
General Garland, for being here.
Mr. Attorney General, I've been concerned in recent weeks
by some steps that have been taken by the Biden administration,
steps that I fear represent a significant amount of overreach.
You know, 7 weeks ago you had President Biden giving a speech
in which he promised to enlist the assistance of corporate
America, all of corporate America with more than 99 employees,
in firing people who don't get vaccinated.
I'm vaccinated. I've encouraged everyone close to me to get
vaccinated. I don't think it's the role of the Federal
Government to do that. He's threatening to cripple employers by
imposing absolutely punishing fines on them, and they're now
doing his dirty work, even before this act of overreach has
been reduced to an order that could be litigated, litigation
that I believe would end the same way Youngstown Sheet & Tube
v. Sawyer ended.
You know, about a month after that we had your October 4th
memorandum in which you direct the Department of Justice and
the FBI to intervene in what, as far as I can tell, is a State
and local issue. That is a series of issues involving how
parents advocate for their children with their local school
boards. I also believe that in doing that--doing that through
the Department of Justice, doing it in the way that you did it,
directing the assistance, enlisting the help of all 94 U.S.
Attorneys, therefore every satellite office of the Department
of Justice nationwide, to do it in a way that I think has a
natural tendency to chill free speech in this area.
I question seriously the role of the Federal Government in
protecting people at local school board meetings from their
neighbors. It is, after all, most of the time, State law, not
Federal that's at play when there is criminal activity. Federal
crimes are a subset of crimes generally.
You've referenced several times today that your letter
covered only violence and threats of violence, and yet the very
opening line of your memo says, ``In recent months, there's
been a disturbing spike in harassment, intimidation, and
threats of violence against school administrators, school board
members, teachers, and staff who participate in the vital work
of running our Nation's public schools.'' You referred to this
over and over again, and that's a pretty broad statement. I
believe this has a tendency to chill free speech, free speech
that is exercised at the State and local level typically by
neighbors, by parents, to local school boards.
In hindsight, would you agree that a natural consequence of
your memo could be chilling free speech, protected speech by
parents protesting local school board policies?
Attorney General Garland. Senator, the memo is aimed only
at violence and threats of violence. It states on its face that
vigorous debate is protected. That is what this is about, and
that is all this is about.
Senator Lee. What about harassment and intimidation? Are
those Federal crimes?
Attorney General Garland. They are Federal crimes.
Senator Lee. Are you referring to like witness tampering
intimidation under 18 U.S.C. Sec. 1512 or what----
Attorney General Garland. I'm referring to 18 U.S.C. Sec.
2261(a), which makes it a crime with intent to injure, harass
or intimidate, placing a person in reasonable fear of serious
bodily injury through communications over the internet.
Likewise, 47 U.S.C. Sec. 223(a), making telephone calls with
intention to harass.
I want to be clear though that those only are within--I
take your point. Those are only within what is permitted by the
First Amendment. The Supreme Court has been clear about that,
too. In the Virginia v. Black case, the court explained when
intimidation is not protected by the Constitution, and that is
when it is made with the intent of placing the victim in fear
of bodily harm or death. That's what we're concerned about
here.
Senator Lee. One of the things that concerns me is, you
know, we've got 17 attorneys general led by Attorney General
Todd Rokita in Nevada and joined by a total of 17 attorneys
general including Sean Reyes, the fantastic attorney general of
the State of Utah. They've weighed in and they've said that
there is not a barrage of accusations. There's no unusual flood
of accusations of threats of violence against school board
members. Nothing unusual, nothing that they can't handle at the
State and local level. Normally, things like this against State
and local officials involving State and local government
entities like school boards are not Federal.
In response to a series of questions before the House
Judiciary Committee including some questions asked by
Congressman Jim Jordan from Ohio, you were asked your factual
predicate for your October 4th memorandum and for your
conclusions in this regard. You answered before that Committee
that your factual predicate for that was the October 22nd
memorandum from the National School Board Association.
The National School Board Association, as has been
mentioned, has since withdrawn that memo. Yet you said that was
the factual predicate. Given that that was the factual
predicate and that it's rescinded its memo, saying that there
was no justification for some of the language that they used in
that letter, will you rescind your memo?
Attorney General Garland. Senator, best of my recollection,
I said that the impetus for the letter--for my memorandum was
that letter and also reports of this kind of activity.
Senator Lee. What reports?
Attorney General Garland. I said again, at the time that
they were news reports that had been published. I think that
some of the other Senators here have described some of those
news reports, and we've certainly seen subsequently more news
reports and more statements by board members of threats to kill
them.
Senator Lee. Congressman Chip Roy of Texas said--raised in
that same hearing the issue of a 14-year-old girl in a school
bathroom being sexually assaulted in Loudoun County. You
indicated in response to that that you weren't aware of that.
In the 6-days before you testified before the House Judiciary
Committee, have you become familiar with the publicly reported
details of that case?
Attorney General Garland. Yes, I have read about the case.
Yes.
Senator Lee. If you were unfamiliar with the supposed
instances of threats of violence and intimidation that the
National School Board Association cited in the letter, then how
did you determine that intervention by the FBI and the DOJ was
necessary that that was the right approach?
Attorney General Garland. The right approach in the letter
is to meet with local law enforcement. That's what we've asked
for is to meet, to assess the situation, to see what their
needs are, to strategize, and to open lines of communication.
I'm hopeful that many areas of local law enforcement will
be well able to handle this on their own. This is what the
Justice Department does every day, to consult with our local
and State partners, and see whether assistance is necessary. Of
course, we continue to have our own Federal responsibilities
with respect to communications by the internet and on social
media, telephone, through the mail. I'm hopeful that we will
not be needed in this area that our State and local partners
will be able to handle these threats.
Senator Lee. My time is expired. I just want to state for
the record as I close that my staff and I went through every
news source raised by the National School Board Association.
There's no explicit death threat. I choose here to reiterate my
concern that not every outburst or expression of concern by
neighbors, among neighbors, at a local school board meeting
warrants a Federal investigation. Certainly doesn't warrant the
involvement of 94 U.S. Attorneys in a way that threatens,
intimidates, and tends inevitably to chill First Amendment
activity. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Lee. Senator Coons. Just 1
second.
Senator Grassley. Mr. Chairman, one more request for
introduction of a letter from another attorney general on
rescinding the memorandum, this one from Ohio Attorney General
Yost.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Coons.
Senator Coons. Thank you, Chairman Durbin, Ranking Member
Grassley. Thank you, Attorney General Garland.
As you well know, oversight of the executive branch is an
important part of the duties of this body. I just want to
commend the Chair and Ranking for prioritizing this, and you
for your time here. While at times challenging, this process is
key to fulfilling our constitutional responsibilities, and we
know that we have substantial work to do to restore confidence
in our democratic institutions. I think your engagement here
today is a key part of that, so thank you for your diligent and
thorough answers to the questions that are being presented
today.
Let me just start with a question about some
characterizations that are being made here and in other
settings about the trajectory of the Biden administration in
terms of responding to violent crime. Some are asserting that
the Department of Justice is focused on defunding the police or
hamstringing or undermining law enforcement.
As an appropriator, my impression instead is that the
President requested an additional $388 million for the COPS
Hiring Program, an increase of $200 million over the previous
year. The CJS approps that was just posted includes $100
million for new community violence intervention programs. The
Biden administration ensured that over $350 billion previously
available grants under the CARES Act could be used to hire more
law enforcement personnel at the State and local level, even
beyond pre-pandemic levels.
Could you just speak briefly to how these different
programs and initiatives are, in fact, designed to prevent
violent crime, designed to support our State and local
partners, and how these investments could work to assist,
support, and protect law enforcement in conducting their
obligations and duties in our communities in an appropriate
way?
Attorney General Garland. Yes, Senator. I would just add
one more pile of requests there, which was for over $500
million for the Byrne JAG grants, which also go directly to
State and local law enforcement.
Yes. Look, we are very concerned about violent crime. This
is an area which is again primarily the responsibility of State
and local law enforcement, but nonetheless has bipartisan
support, and has had this since the 1990's for Federal
Government involvement to help prevent.
As a consequence, we have historically since then, and
accelerating now, lashed up with our State and local partners
in task forces and joint organizations in every city and every
community in the United States to help our local law
enforcement protect their communities against violence. We also
have Federal, obviously, laws which help us in this regard.
These include money that we've requested for DEA, for ATF, for
the FBI, for the Marshals Service, all increases to allow us to
support these circumstances.
Senator Coons. As we've discussed before, my hometown is
one where I was responsible for local law enforcement when I
was an elected county official. We appreciate these additional
investments and the partnership with Federal law enforcement,
and think it's an important part of our work to combat violent
crime all over this country.
I want to turn to immigration. You've been asked by a
number of my colleagues about it. There seem to be some who
think that anything we do to help migrants will necessarily
make the border less secure, more chaotic, but I disagree. I
think it is possible for us to reduce multi-year court
backlogs, improve access to counsel, improve the humanitarian
aspects of handling migrants, and build a system that is
orderly, consistent with rule of law, more humane, and more
fair.
I'd love to understand how we in Congress can help you
through legislation, as well as through funding to reduce
immigration court backlogs, improve access to counsel, improve
the process, and also contribute to securing our southern
border. Do you have thoughts you care to share briefly, or
would you be willing to share those with us in writing?
Attorney General Garland. I'll be happy to have the
Department get back to you in writing. I will say we have
requested additional funds so that we can put an additional 600
personnel including 100 immigration judges into our Executive
Office of Immigration Review so that we can do the kind of
acceleration that you're talking about. We've made a number of
internal changes with respect to the way cases are handled in
order to accelerate that.
We do need more money in that respect, and I've made that
plea already to the Appropriations Committee. Be happy to get
back to you in more detail.
Senator Coons. Just superficially, is it your understanding
that when applicants for asylum have access to counsel or to
legal counseling, the odds that they return for their final
disposition and the odds that they will have a fair and
appropriate process go up?
Attorney General Garland. I certainly think the odds that
they have a fair and appropriate process would go up. It seems
quite logical that the odds of them returning for their
proceedings would go up because they would know they would have
that opportunity. I don't know any of the statistics about
that.
Senator Coons. Understood. On intellectual property, as you
know, a long concern of mine, I just briefly wanted to mention
back in December 2019, DOJ Antitrust issued a statement jointly
with NIST and the Department of Commerce and the U.S. Patent
and Trademark Office recognizing that when a patent involved in
voluntary standard setting efforts--these are typically global
efforts around critical communications technologies and
others--that all legal remedies should be available when a
patent is infringed. That policy ensures competition,
incentivizes participation in standard setting activities, and
plays a vital role in bringing the benefits of innovation to
Americans. It's also critical for our global competition with
China and other countries.
I'm hearing DOJ has imminent plans to abandon that position
or reverse it and replace it with one that does not embrace the
availability of all remedies. Given that there are nominees in
process likely now for both AAG for Antitrust and now for
Patent and Trademark Office, would you commit to waiting until
there are Senate-confirmed leaders in these positions before a
change in policy?
Attorney General Garland. I would love to have Senate-
confirmed leadership in the Antitrust Division, and everything
you can do to make that go swifter would be greatly
appreciated. I have to say this is a bit outside the area of my
own expertise, but I assume any such thing would have to come
through me before it would be announced. Nothing like that has
come to my office yet.
Senator Coons. I'd welcome the opportunity to stay in
communication with it.
My last quick question relates to the Office for Access to
Justice, which has in the past under our previous
administration been a leader in debtors' prisons and the
criminalization of poverty. Tomorrow, this Committee will hold
a vote on the Driving for Opportunity Act, a bipartisan bill
I'm leading with Senator Wicker and a number of Members of this
Committee, and it will make progress in terms of ways in which
a decades-old practice of stripping people of their driver's
licenses for unpaid court-related fees or fines, which advances
the criminalization of poverty, will be reversed.
Could you say just a moment about the plans for the Office
of Access to Justice and your view about the importance of
continued progress in criminal justice reform?
Attorney General Garland. Yes, Senator. Equal justice under
law is inscribed in the pediment above the Supreme Court and is
a core principle of American democracy. You can't have equal
justice under law if you don't have access to justice. For much
of my career as a judge, and even before that, even before
being in the Justice Department, and in addition, even as a
lawyer in private practice, I've been concerned about getting
access to attorneys, lawyers, so that people who need help with
their individual circumstances can have assistance.
The President issued an executive order on this. We have--
and there is a report--I'm not positive whether it's public,
but I believe it is--with respect to reinvigorating the
roundtable, whose job it is to address this question, of which
I believe I'm a co-chair. I asked for review within the
Department, and we have determined that we should stand up once
again, an independent within the Department, Office of Access
to Justice. We have enough money to do that in the very short
term. Not to talk too much about requests for money, but our
fiscal year 2022 budget request does ask for a significant
appropriation so that we can stand up a staff and get that
office going.
Senator Coons. Great. Thank you, Mr. Attorney General.
Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Coons. The Committee is
going to stand in recess for 5 minutes. When we return, Senator
Cotton is up if he is here. If not, Senator Kennedy.
[Whereupon the Committee was recessed and reconvened.]
Chair Durbin. Senate Judiciary Committee will resume.
Senator Cotton is recognized.
Senator Cotton. Judge Garland, on May 11th, Tony Fauci
testified that his agency, quote ``has not ever and does not
now fund gain-of-function research in the Wuhan Institute of
Virology.'' Last week, his agency admitted that they had in
fact funded gain of research in the Wuhan Institute of
Virology. Are you investigating Tony Fauci for lying to
Congress?
Attorney General Garland. The longtime rule in the Justice
Department is not to discuss pending investigations, potential
investigations.
Senator Cotton. Okay. That's fine. That's fine. Do you
believe Tony Fauci was truthful when he said his agency had
never funded gain-of-function research?
Attorney General Garland. This is outside of my scope of
knowledge.
Senator Cotton. Okay. Let's turn to your outrageous
directive, siccing the feds on parents at school boards across
America. When you crafted that October 4th memo, did you
consult with senior leadership at the FBI?
Attorney General Garland. My understanding was that the
memo or the idea of the memo had been discussed with the FBI
before it got----
Senator Cotton. Did anyone at the FBI express any doubt or
disagreement or hesitation with your decision to issue that
memo?
Attorney General Garland. No one expressed that to me.
Senator Cotton. No one?
Attorney General Garland. To me. No one expressed that to
me. No.
Senator Cotton. Because of a lot of them had contacted us,
and they said they did, Judge.
Attorney General Garland. I'm sorry?
Senator Cotton. A lot of FBI officials have contacted my
office and said that they oppose this decision.
Attorney General Garland. I doubt any of them spoke to me
about it because I didn't speak to--no one had mentioned it to
me.
Senator Cotton. All right. All right. Judge, you've
repeatedly--repeatedly dissembled this morning about that
directive. For instance, about the National Security Division,
Chuck Grassley asked you a very simple question, why you would
sic the National Security Division of the Department of Justice
on parents. John Cornyn asked you the same thing. You said it
wasn't in your October 4th memorandum. It was in another
office's memorandum. It wasn't another office's memorandum,
Judge. It was in a press release from your office. Right here
in front of me, October 4th, 2021, for immediate release. You
were going to create a task force that includes the National
Security Division. What on earth does the National Security
Division have to do with parents who are expressing
disagreements at school boards?
Attorney General Garland. Nothing in this memorandum or any
memorandum is about parents expressing disagreements with their
school boards. The memorandum makes clear that parents are
entitled and protected by the First Amendment to have vigorous
debates. The Justice Department is not interested in that
question at all.
Senator Cotton. Okay. Even in that case, what is the
National Security Division, Judge--these are the people that
are supposed to be chasing jihadists and Chinese spies. What
does the National Security Division have to do with parents at
school boards?
Attorney General Garland. This is not, again, about parents
at school boards. This is about threats of violence.
Senator Cotton. Okay. Let me turn to that, because you've
said that phrase repeatedly throughout the morning. Violence
and threats of violence. Violence and threats of violence.
We've heard it a dozen times this morning.
As Senator Lee pointed out, the very first line in your
October 4th memorandum refers to harassment and intimidation.
Why do you continue to dissemble in front of this Committee
that you are only talking about violence and threats of
violence, when your memo says harassment and intimidation?
Attorney General Garland. Senator, I said in my testimony
that it involved other kinds of criminal conduct, and I
explained to Senator Lee that the statutory definitions of
those terms and the constitutional definitions of those terms
involve threats of violence.
Senator Cotton. Okay. Let's look at one of those statutes
you cited. Section 223. That statute covers the use of not just
telephones, but telecommunications devices to annoy--to annoy
someone. Are you going to sic your U.S. Attorneys and the FBI
on a parents' group if they post on Facebook something that
annoys a school board member, Judge?
Attorney General Garland. The answer to that is no, and the
provision that I was particularly drawing his attention was
2261(a), which was to engage in----
Senator Cotton. I wasn't talking about 2261(a). I know you
mentioned that. You also mentioned 223. That's what I
mentioned.
Attorney General Garland. Yes. But the only----
Senator Cotton. Okay. Judge, you also told Senator
Klobuchar that this memorandum was about meetings and
coordination. Meetings and coordination. I have in my hand
right here that I'll submit to the record, a letter from one of
your U.S. Attorneys to all of the county attorneys, to the
attorney general, to all sheriffs, to the School Board
Association of his State, in which he talks about Federal
investigation and prosecution.
[The information appears as a submission for the record.]
It's not about meetings. It's not about coordination. It's
about Federal investigation and prosecution. Did you direct
your U.S. Attorneys to issue such a letter?
Attorney General Garland. I did not. I have not seen that
letter. My memo----
Senator Cotton. It's got three pages--it's got three pages
of spreadsheet about all the Federal crimes that a parent could
be charged with to include the ones you cited.
Attorney General Garland. My memorandum----
Senator Cotton. Did Main Justice make this spreadsheet,
Judge?
Attorney General Garland. I don't have any idea. My
memorandum speaks specifically about setting up meetings, and
I'll just read it again. Convene meetings----
Senator Cotton. Judge, we've all read your memorandum.
Attorney General Garland. Then you know what----
Senator Cotton. We've also heard you dissemble about your
memorandum. I have, and the record now shows, one of your U.S.
Attorneys sending out a letter about Federal prosecution
investigation and lists in detail the Federal statutes for
which you could be prosecuted.
Judge, you talked a lot about intimidation and harassment.
Have you issued a memorandum like your October 4th memorandum
about Black Lives Matter riots from last summer?
Attorney General Garland. Are you talking about summer of
2020? In the summer of 2020, there were----
Senator Cotton. A lot of crimes committed. People haven't
been caught for those crimes yet.
Attorney General Garland. There were a lot of prosecutions,
and they were under the previous administration. A lot of
prosecutions----
Senator Cotton. Okay. Judge, what about this? It is no
doubt--even though parents at school boards aren't within
Federal jurisdiction, there's no doubt that Federal officials
are. You keep saying Senators. Have you started an
investigation into the harassment of Senator Kyrsten Sinema in
a bathroom, in a bathroom, because she won't go along with the
Democratic Party's big tax-and-spend agenda? That is a sitting
United States Senator being harassed in a bathroom.
Attorney General Garland. I don't know whether the Senator
has referred the matter to the Justice Department or not.
Senator Cotton. You've cited as the basis for that
directive the National School Board Association's letter of
September 29th. Was that directive being prepared before
September 29th, before the School Board Association letter was
issued?
Attorney General Garland. I don't believe so. Certainly I
didn't have any idea.
Senator Cotton. It was only prepared--okay. I think that
answers the question.
Attorney General Garland. I already answered that question
before.
Senator Cotton. You keep citing the school board letter and
news reports.
Attorney General Garland. That's right.
Senator Cotton. One of the news reports cited in that
letter which you presumably mean is from Loudoun County,
Virginia. Scott----
Attorney General Garland. No, that is not what I was
talking about. I'm talking about----
Senator Cotton. You keep citing news reports, and that's
the most prominent news report that anyone in America has seen.
That refers to Scott Smith, whose 15-year-old daughter was
raped. She was raped in a bathroom by a boy wearing girl's
clothes. The Loudoun County School board covered it up because
it would have interfered with their transgender policy during
Pride Month.
That man, Scott Smith, because he went to a school board
and tried to defend his daughter's rights, was condemned
internationally. Do you apologize to Scott Smith and his 15-
year-old daughter, Judge?
Attorney General Garland. Senator, anyone whose child was
raped is the most horrific crime I can imagine and is certainly
entitled and protected by the First Amendment to protest to
their school board about this. That is----
Senator Cotton. He was cited by the School Board
Association as a domestic terrorist, which we now know that
letter and those reports were the basis for your----
Attorney General Garland. No. No, Senator. That's wrong.
Senator Cotton. This is shameful. Judge, this is shameful.
This testimony, your directive, your performance is shameful.
Thank God you are not on the Supreme Court. You should resign
in disgrace, Judge.
Chair Durbin. General Garland, do you want to complete your
answer on----
Attorney General Garland. Okay. I wasn't sure there was a
question there, but let me be clear. The news reports I'm
talking about were not the news reports in that letter. They
were other news reports that everybody here has heard about,
subsequent reports that everybody has heard about. There is
nothing in this memorandum, and I wish if Senators were
concerned about this, they would quote my words. This
memorandum is not about parents being able to object in their
school boards. They are protected by the First Amendment. As
long as there are no threats of violence, they are completely
protected.
Parents can object to their school boards about curriculum,
about the treatment of their children, about school policies.
All of that is 100 percent protected by the First Amendment,
and there is nothing in this memorandum contrary to that. We
are only trying to prevent violence against school officials.
Thank you.
Chair Durbin. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. I'd like to insert
into the record the Washington Post article by Salvador Rizzo
that is entitled The False GOP Claim that the Justice
Department is Spying on Parents at School Board Meetings. I'd
like to insert this article into the record.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Hirono. It's good to see you, Mr. Attorney General.
Attorney General Garland. Thank you, Senator.
Senator Hirono. I will quote from the first sentence of
your memo. ``In recent months there has been a disturbing spike
in harassment, intimidation, and threat of violence against
school administrators, board members, teachers, and staff who
participate in the vital work of running our Nation's public
schools.'' This is a fact. We have all seen the news coverage
of people actually threatening to hurt school board members for
going about their jobs. That is a fact.
When I listen to my Republican colleagues going on about
the intent of this memo, I'm again reminded of they often take
the position that we should all not believe what we see with
our own eyes. It's like characterizing the January 6
insurrection as just a bunch of tourists visiting the Capitol.
Give me a break.
We now see our Supreme Court weaponized to support the
position of the most conservative causes. We see a rush to the
Supreme Court on cases involving abortion rights, gun rights,
LGBTQ rights, voting rights, union rights. Thank you, Mr.
Attorney General, for making the protection of our civil rights
one of the Department's core priorities.
I want to turn to the need to combat hate crimes. It's been
about 5 months since President Biden signed the COVID-19 Hate
Crimes Act into law, and I sent a letter to you last month
requesting an update on the Department's implementation of the
act and its efforts to reduce hate crimes and hate incidents,
yet another thing that we have all seen with our own eyes, the
rise in hate crimes during this period of the pandemic.
Mr. Attorney General, would you briefly describe the
actions that you and the Department have taken thus far to
implement the COVID-19 Hate Crimes Act?
Attorney General Garland. Yes. Thank you, Senator. Even
before the act, I had issued a memorandum within the Department
to assess how we were dealing with hate crimes and to better
organize the manner in which we were doing that. Then we're
grateful that the Congress passed the COVID-19 Hate Crimes Act.
Since then, I issued a subsequent memorandum based on what
the Associate Attorney General and the Deputy Attorney General
had provided in terms of the Department's progress under that
act. I believe we have now implemented everything that was
required of us in the act, but that of course doesn't mean
we've solved hate in America. We have done the things that the
statute has asked us to do. I've appointed a coordinator for
all hate crimes matters. I've appointed a expediter in the
Civil Rights Division's criminal section to expedite our
investigations. We've established a task force of Federal law
enforcement and U.S. Attorney's Offices meeting with State and
local law enforcement to coordinate, to explain, to develop
strategies with respect to hate crimes. We've had trainings for
State and local territorial and tribal law enforcement to help
them recognize these circumstances.
We've asked--we've established a language coordinator, a
facilitator, so that our memorandum and press releases in these
regards can be translated appropriately. We've asked for
considerable additional funds in our appropriations so that we
may give more money to State and locals, tribal, and
territorial law enforcement to assist in these matters.
Senator Hirono. I appreciate the efforts you have taken,
and I think that this will result in of course some factual
information about the extent of hate crimes and incidents in
our country so that we can better prevent and prosecute as
appropriate.
You've been asked before, I think in the House hearing,
about the China initiative. If we end the China initiative,
will we no longer go after economic espionage and IP theft by
China?
Attorney General Garland. There are two issues here that we
always have to keep uppermost in our mind. One is that the
People's Republic of China is a serious threat to our
intellectual property. They represent a serious threat with
respect to espionage. They represent a serious respect with
respect to cyber incursions and ransomware in the United
States, and we need to protect the country against this, and we
will, and we are bringing cases in that regard.
The other thing that always has to be remembered is that we
never investigate or prosecute based on ethnic identity, on
what country a person is from or came from or their family.
Senator Hirono. Thank you. I'm sorry. Were you done?
Attorney General Garland. That's all right. Yes.
Senator Hirono. The reason I ask about the China initiative
is that under the previous administration which instituted this
so-called initiative that there appears to have been racial
profiling, which basically ruined the lives of a number of
Chinese people. I want to give an example.
The Justice Department, previous administration, dragged
Dr. Anming Hu, a professor at the University of Tennessee,
through a 2-year espionage investigation causing him to lose
his job. At the end of the investigation, DOJ lacked any
evidence of espionage, and instead charged Dr. Hu with wire
fraud and false statements for apparently failing to disclose
his association with a Chinese university on a NASA grant
application.
His trial ended in a mistrial, after which a juror said she
was, quote ``pretty horrified by the lack of evidence'' end
quote. When DOJ sought a new trial, the District Court granted
Dr. Hu's motion for an acquittal, finding no harm to NASA and
no evidence that Dr. Hu knew NASA's funding restriction applied
to Chinese universities.
I would say from your answer that regardless of whether we
have something called the Chinese initiative, you have no
intention of not paying attention to espionage and other bad
acts by China. I'd say we should get rid of this initiative
that results in racial profiling. Thank you, Mr. Chairman.
Chair Durbin. Senator Kennedy.
Senator Kennedy. Good morning, General.
Attorney General Garland. Good morning, Senator.
Senator Kennedy. General, I'm looking at this letter from
one of your U.S. Attorneys from October this year where you
wrote to the Montana attorney general, all the county
attorneys, and all the sheriffs in his jurisdiction suggesting
ways that parents could be prosecuted for appearing at school
board meetings in accordance with your directive. One of the
suggestions made by your U.S. Attorney is parents can be
prosecuted for repeated telephone calls, not threatening
anyone, just on the theory that repeated telephone calls could
be harassment. Really?
Attorney General Garland. Senator, I haven't seen that
memorandum. I've tried to express as clearly as I can here----
Senator Kennedy. I heard you, General. This is one of your
U.S. Attorneys.
Attorney General Garland. Again, I haven't seen----
Senator Kennedy. Isn't that special? General, you're just a
vessel. Let me tell you what I'm talking about. With respect to
the National School Boards Association letter, you're just a
vessel, aren't you?
Attorney General Garland. I'm not sure what you mean by
that, but I signed this memorandum. I worked on this
memorandum, and this memorandum is my memorandum. It is not the
memorandum of the National School Boards.
Senator Kennedy. Let me tell you what I mean. We know that
the National School Board Association was upset because parents
were coming to school board meetings to object to the teaching
of Critical Race Theory. We know that in drafting the letter,
the National School Board Association collaborated with the
White House for several weeks. They worked on it together. We
know that the National School Board Association--once the White
House and the Association were happy with the letter, the
National School Board Association sent the letter to the White
House, and the White House promptly called you and said sic the
FBI on parents at school board hearings.
That's what I mean. The White House is the prophet here.
You're just the vessel. Isn't that correct?
Attorney General Garland. Senator, I did not speak with
anyone from the White House while I worked on this memorandum.
This memorandum reflects my views that we need to protect
public officials from violence and threats of violence, while
at the same time protecting parents' ability to object to
policies in schools that they disagree with.
Senator Kennedy. Right. I get that. I've heard your
testimony. Were you worried that you would be fired if you
didn't issue the memorandum?
Attorney General Garland. Senator, I'm not--I decided on
this memorandum on my own. I don't care. I said from the very
beginning I've taken this job to protect the Department of
Justice to make independent determinations with respect to
prosecutions and investigations, and I will do that. I am not
concerned about getting fired.
Senator Kennedy. Okay. Sorry to interrupt, General, but I
don't have much time. When you got the letter from the White
House that prompted your memorandum to give the FBI new duties
and making sure our parents aren't dangerous domestic
terrorists, you didn't investigate before you issued your
memorandum the incidences cited in the letter, did you?
Attorney General Garland. Look, I took the statement by the
National Association, which represents thousands of school
board members, when they said that they were facing violence
and threats of violence, and when I saw in the news media
reports----
Senator Kennedy. Yes, but you didn't investigate the
incidents in the letter, did you?
Attorney General Garland. No. This is the first step. This
is an assessment step. It comes before investigations.
Senator Kennedy. Right. Before you issued your memo, you
didn't investigate the incidents.
Attorney General Garland. The memo is intended to begin
assessments. It is intended to ask----
Senator Kennedy. In fact, most of the incidents in the
letter did not involve threats of violence, did they?
Attorney General Garland. I think that's correct. Most of
them did not, and they would not be covered by either Federal
or State law. I agree with that. They would be protected by the
First Amendment. Threats of violence are not covered by the----
Senator Kennedy. Can we agree that we have thousands, tens
of thousands, maybe hundreds of thousands of kids growing up
today who are more likely to commit a crime and go to jail than
own a home and get married?
Attorney General Garland. I don't know about the
comparative statistics. I do know there are too many people who
are committing crime.
Senator Kennedy. One of the reasons for that is lack of
parental involvement, isn't it?
Attorney General Garland. I think parental involvement is
essential. I think it's the key both to bringing up good kids--
--
Senator Kennedy. Why do you want to issue a memorandum
listing incidents that you didn't investigate that anybody who
has any fair-minded knowledge of the world knows is going to
have a chilling effect on parental involvement with respect to
what their kids are learning at school?
Attorney General Garland. I just want to be clear again,
Senator. My memorandum did not list any of those incidents.
Senator Kennedy. Come on, General. We both know this had a
chilling effect. You don't think there are parents out there in
the real world that said, ``Oh, my God. Maybe we shouldn't go
to the school board meeting. There will be FBI agents there.''
This isn't la-la land.
Attorney General Garland. I tried to make clear, as clear
as I could, and now I have subsequently made clear in every
public statement on the map.
Senator Kennedy. Your actions made it clear, General. Let
me ask you one last question. When men follow a United States
Senator who happens to be a female into a women's room to
harass her about her beliefs, why is that just part of the
process, as President Biden says, but when a parent goes to a
school board meeting to protest that her child is being taught
that babies can be White supremacists is subject to FBI
prosecution?
Attorney General Garland. The description that you just
gave that parent is not subject to FBI investigation, and
there's nothing in this memorandum that suggests this. We
protect United States Senators against threats of violence.
Senator Kennedy. You did a good job with Senator Sinema.
Attorney General Garland. Within the last month, we have
indicted somebody who made threats of violence against both
Alaska U.S. Senators. Recently, we just indicted somebody else
who made threats on----
Senator Kennedy. Can I ask one more, Mr. Chairman? Can I,
Mr. Chairman?
Senator Hirono. [Presiding.] Can you wrap up please,
Senator Kennedy?
Senator Kennedy. I'm sorry.
Senator Hirono. Could you wrap up? I am chairing this
hearing now.
Senator Kennedy. Oh, yes, ma'am. I will. I'm just going to
ask one last one.
What led you to conclude, before you issued your memorandum
siccing the FBI on parents, that law enforcement at the State
and local level couldn't handle it?
Attorney General Garland. Let me be clear, Senator. We did
not sic the FBI on parents. That's not what this memorandum is
about. Nor did we conclude that local law enforcement is unable
to deal with the problem. The purpose of this memorandum is for
our Federal law enforcement to engage with State and local and
determine whether they need assistance.
Senator Kennedy. You don't think this had any chilling
effect whatsoever on parents out there?
Attorney General Garland. The memorandum expressly says at
the beginning that it is aimed at violence and threats of
violence, and expressly says that robust public debate about
school policies are protected.
Senator Kennedy. Right. Right. I like you, General, a lot.
But on this issue, you've turned into someone you said you
wouldn't be.
Senator Hirono. Senator Kennedy. I recognize Senator
Booker. Please proceed.
Senator Booker. General, I want to start with an area of
bipartisan accord that seems to be what we're getting toward.
Today is the 35th anniversary of the Anti-Drug Abuse Act
which established vastly different sentences for crack and
powder cocaine. We are seeing a wonderful convergence in
Congress, most recently in the House of Representatives, where
you have this wide bipartisan vote. I'm not sure if there's
been a bigger bipartisan vote this year, where 149 Republicans
voted along with almost all the Democratic caucus to address
this disparity.
The effect of that law was 100 to 1. The work of again
bipartisan Senators here, led by Senator Durbin, negotiated the
Fair Sentencing Act which was a change of that disparity from
100 to 1 to 18 to 1.
Senator Durbin and I now have introduced something called
the EQUAL Act, which has already been passed by the House.
We've got Republicans and Democrats on board. Tillis, Leahy,
Paul, Graham, as well as my colleague, Senator Ossoff, on my
side of the aisle.
The President, Biden, publicly supported the bill, and
again, I just think this should be an area that's an obvious
accord. I really want to know your opinion. Do you agree that
it's time to end the sentencing disparity between crack and
powder cocaine, especially given the disparate impact it has on
people of color? If you believe that, why do you believe that?
Attorney General Garland. Yes, I do believe that, and the
Justice Department supports that bill and supports equal
treatment of crack and powder cocaine. The Sentencing
Commission has, over the last decade, maybe more than that,
produced a series of reports which undercut what was supposed
to be the scientific basis for the distinction between the two,
and it's made quite clear that there is no warrant basis for
distinguishing between the two. So, once that is undercut,
there can be no grounds for that.
On the other side, not only are there no grounds for it. It
clearly does have a disparate impact on communities of color,
also clearly recognized by the Sentencing Commission
statistics. You have that kind of circumstances, there's no
justification for this, and we should end this.
Senator Booker. I appreciate that. One last just
clarification. While there is a lot of unanimous support for
this on both sides of the aisle, a lot of support for it on
both sides of the aisle, there are some people that worry about
it somehow affecting crime or crime rates. Could you discuss
your opinion of that perspective?
Attorney General Garland. I think powder cocaine is as
dangerous with respect to crime rates as crack cocaine, both of
which have now been unfortunately overtaken by fentanyl and the
opioids. Both of those are bad problems from respect of crime,
but equalizing penalties for crack and powder should have no
difference with respect to our ability to fight violent crime
or drug crime.
Senator Booker. Thank you, sir. I appreciate that, you
saying it for the record.
Can I revisit what Senator Durbin brought up at the top?
This is a letter that he and I sent you regarding the people
that are currently on home confinement. In the last days of the
Trump administration, on January 15, 2021, the Justice
Department's Office of Legal Counsel issued a memo arguing that
the BOP must reincarcerate everyone on the CARES Act home
confinement at the end of the covered emergency period if they
do not otherwise qualify for home confinement.
These are folks that were pretty extremely scrutinized
beforehand. They've been returned to their communities. They
have been reengaging with family, with children. They have--are
folks that are not showing any criminal activity or any
problems.
Senator Durbin and I really believe, and we are urging the
Department of Justice to rescind this Trump era memo which
incorrectly concludes that people who have been released to
home confinement and who have abided by the conditions of the
relief must be torn away from those families and go back to BOP
custody.
I just really would love to know where you stand on this
issue. To me, it's an issue of justice. It's an issue of
restorative justice. It's an issue of compassion and
understanding the collateral consequences of ripping people
back and putting them in prisons unnecessarily, not to mention
the cost to taxpayers. Clearly, I have my opinion, but I'd like
to hear yours.
Attorney General Garland. Look, I agree with you. It would
be a terrible policy to return these people to prison after
they have shown that they are able to live in home confinement
without violations. As a consequence, we are reviewing the OLC
memorandum that you spoke about. We are also reviewing all
other authorities that Congress may have given us to permit us
to keep people on home confinement. As you know, we are also,
and the President, is reviewing the extent of his clemency
authority in that respect.
Senator Booker. How long should we expect that review
before you make a determination?
Attorney General Garland. I can't say exactly.
Senator Booker. Are we talking 6 months or less than 6
months?
Attorney General Garland. I'm not exactly sure how long
that will take. It may require rulemaking, and so that may take
more time. We can be sure that it will be accomplished before
the end of the CARES Act provision, which extends until the end
of the pandemic. We are not in a circumstance where anybody
will be returned before we have completed that review and
implemented any changes we need to make.
Senator Booker. Okay. Then in regards to just compassionate
release in general, will the Department of Justice consider
filing motions for individuals on home confinement who reside
in judicial districts like the 11th Circuit, where courts have
interpreted compassionate release statutes to cover only
medical, age, and family circumstances grounds?
Obviously, there's still a pandemic and we know that
putting people into environments greatly increases their
chances. I'm concerned about restrictions on compassionate
release in places like the 11th Circuit.
Attorney General Garland. This is something I haven't
thought about, Senator. I guess the Bureau of Prisons, which is
the agency that decides those questions, has to have a uniform
policy across the country. I hadn't thought of the possibility
of making distinctions based on which circuit, because you're
quite correct. The different circuits have different views
about the scope of compassionate release. I'll take that back
for consideration, if it's all right with you.
Senator Booker. All right. I have some concerns about First
Step Act implementation, which I'll ask in writing to you. I
want to be respectful of my colleague, my friend, the Senator
from the great State of Oklahoma.
Senator Sasse. Ouch.
Senator Booker. I'm sorry, sir. Forgive me. Omaha.
Senator Sasse. Omaha's not a State, brother.
Senator Booker. I'm sorry. Where are you from, sir?
Senator Sasse. We used to be able to beat Stanford in
football, and we will return.
Chairwoman, thank you. Sorry. Cory's not as funny as I
thought he would be there.
Attorney General, I know you're tired of talking about the
memo.
Attorney General Garland. I'm not.
Senator Sasse. Did you say you're not?
Attorney General Garland. I'm happy to answer any questions
you have, Senator.
Senator Sasse. I think most of us and most of the American
people are just sort of flabbergasted if your answer is you
have no regrets about this memo. Is that what you're telling
us? You think this was wise.
Attorney General Garland. Senator, the obligation of the
Justice Department is to protect the American people against
violence including threats of violence, and that particularly
includes public officials. I think that is still a concern for
the Department. This memo doesn't do anything more than ask our
law enforcement to consult with State and local law enforcement
to determine whether they need assistance in this regard, and
whether there are any Federal jurisdictional issues involved.
We recognize it's the right----
Senator Sasse. General, you and I both know that it is
political hackery that brought that topic to your desk, not
reality. I am strongly against all violence against everyone in
public life and all threats of violence. You have not at any
point here given us any data that show why this would in any
way be a Federal priority at this time.
The Chairman--he's not here right now, but Chairman Durbin
has repeatedly talked about how this morning he Googled it and
is pretty convinced there must be lots of threats. Can you help
us understand why so many states are disconnecting their
organizations from the National Association of School Boards?
You are aware that the National Association of School Boards
has recanted of the memo, correct? You know they've rejected
their own letter to you. Are you aware of that?
Attorney General Garland. I read their letter. Their letter
doesn't recant their concerns about safety. It recants some of
the language in their letter----
Senator Sasse. We're all for safety.
Attorney General Garland [continuing]. Which I did not
adopt. The language that they have recanted, I never adopted
and never would adopt.
Senator Sasse. Why did the Ohio School Boards Association
sever their relationship with the National School Boards
Association?
Attorney General Garland. I don't know and I----
Senator Sasse. Why did the Missouri School Boards
Association sever their relationship with the National School
Boards Association? Why did the Pennsylvania School Boards
Association sever their relationship with the National School
Boards Association? Because this was political hackery, the
kind of stuff you told us when you were seeking confirmation
that you would be against.
You had the audacity to begin your opening statement today
by telling us one of your big three priorities was to make sure
communications between the White House and the Justice
Department were not politicized. The last three administrations
in a row have politicized the Department of Justice, the three
including you now.
You told us one of your priorities in running DOJ was to
reject the kinds of politicization we saw in the Trump DOJ and
in the Obama DOJ. You told us that was one of your priorities.
You wrote a memo here that came from political staffers who
have been rejected by their organization coordinating with the
White House to try to exaggerate a threat so that they could
make sure parents felt intimidated. You've told us--I wouldn't
use the exact language Senator Kennedy used about that you were
a vessel, but one of two things is true here. Either you were
just a vessel of political com staffers at the White House, or
you yourself are in favor of politicizing the DOJ.
You told one of my colleagues a minute ago that you've not
read the memo from the U.S. Attorney from Montana. I'll read it
to you if you want, or I'll bring it to you, and you can read
it. This is one of your direct reports. It's an insane letter.
The U.S. Attorney from Montana takes as predicate for why he's
doing what he's doing your memo. On October 14th, he sends a
list of all the counterterrorism statutes that should be
considered to be used against parents who are upset about
things that might be happening at their school boards.
Maybe there's lots of specific evidence of violence being
threatened against school board members in Montana, but his
memo, or his response to your memo, includes a letter where he
says that anonymous telecommunications harassment, repeated
telephone calls, or repeated harassing communications should be
things that are potentially brought up as the basis for Federal
charges against parents. Do you agree with this letter of
October 14th?
Attorney General Garland. Senator, I'm going to say again,
this is aimed at violence and threats of violence, and I don't
care whether they come from the left or from the right or from
up or from down. I don't care if they're in favor of curriculum
or against a particular kind of curriculum. We can imagine all
these kind of arguments against school boards coming from
either the left or the right. It doesn't matter.
Arguments against school boards are protected by the First
Amendment. Threats are not protected by the First Amendment. We
received a letter from the National Association of School
Boards. No reason to believe----
Senator Sasse. No, you didn't receive an anonymous letter.
White House political staff co-wrote it with this organization,
which is why the organization has rejected it. You know these
facts now to be true, and yet you still won't disavow your
memo. Why? You didn't receive some objective neutral letter
because all these people were being threatened. You are
responding to a political campaign to politicize the Department
of Justice. How big is the threat that American parents pose
right now?
When you lead a big organization, you have 100,000 plus
employees, you have a lot of violence to go after. Are parents
at school boards one of the top three concerns you face right
now?
Attorney General Garland. This memorandum is not about
parents at school boards. It doesn't matter whether they are
parents or anyone else. It has to do with threats against
public school teachers, public school officials. It is not
political----
Senator Sasse. I'm against all those threats. I want to
know what the data is.
Attorney General Garland. I don't need data in order to
assess any----
Senator Sasse. To respond to a political staffer's campaign
out of the White House.
Attorney General Garland. The purpose of this memorandum is
to get our law enforcement to assess the extent of the problem.
If there is no problem, if States and local law enforcement are
capable of handling the problem, then there is no need for our
involvement. This memo does not say to begin prosecuting
anybody. It says to make assessments. That's what we do in the
Justice Department. It has nothing to do with politics.
Senator Sasse. Will you report back to this Committee with
what you find about these threats? Because what you just said,
I completely agree with. We are against violence against public
officials. You and I agree. We are against threats of violence
against public officials. You and I agree. We are for local
police powers investigating local crimes, and there are
definitely yokels and idiots that make threats against lots of
people in public life. I don't minimize it. You shouldn't
minimize it. You're not minimizing it. We both believe, and in
your heart of hearts, I'm pretty sure you believe that local
law enforcement is more than able to handle some one idiot or
12 idiots at school board meetings.
You made it a Federal issue, and I don't have any idea why.
At no point today have you offered us a shred of data. My
question is, will you pledge you will report back to this
Committee with the results of your investigation about how big
of threat the American parent class is to school boards in the
country?
Attorney General Garland. I will be happy to get a report
back to you, but this is not about the American parent class.
Senator Sasse. I know. It's about the politicization of
DOJ, and you decided to submit as a vessel, and you know
better.
Attorney General Garland. I'm sorry, but I don't agree with
that, Senator.
Senator Blumenthal. Thank you, Senator Hirono. Welcome to
our Committee, Mr. Attorney General. Let me just begin by
thanking you and your team for the sense of integrity and
transparency that you've brought to the Department of Justice
after a time when the rule of law in the greatest law
enforcement agency in the history of the world was gravely
threatened by a lack of that dedication and commitment. I think
it's very important, what you have done, even though we may
have differences of opinion. We may disagree. Nobody can doubt
your commitment to the rule of law.
I want to ask you about a matter. I know you're familiar
with it. Last month, the Committee held a hearing on the FBI's
mishandling of the Nassar investigation, Larry Nassar, who was
convicted of the most heinous kind of abuse with respect to
young athletes and gymnasts particularly. Four brave women
shared their stories with us. They showed up to tell those
stories in spite of the very grave obstacles.
The Inspector General concluded that two FBI agents made
false statements during their investigation into Nassar and to
the IG himself, the Inspector General, during an investigation.
The FBI agents lied. He referred those cases to the Department
of Justice.
What I'd like to ask is that the Department of Justice now
in effect show up by providing an explanation of whatever its
decision is with respect to the prosecution of those agents.
The Deputy Attorney General announced that the Criminal
Division was conducting a new review, as you know, and that new
information has come to light.
While we wait for that review to be completed, what I'm
seeking from you is a commitment that you will explain the
decision when it's made. I recognize as a former prosecutor
that declinations typically are not explained, but the Justice
manual itself says that in criminal civil rights cases, quote
``It is often the practice to send case-closing notification
letters in cases closed with indictment or prosecution,''
because cases, quote ``often spark intense public interest,
even when they're not prosecuted,'' and that such letters are,
quote ``particularly encouraged in cases of police misconduct
and other cases involving law enforcement officer subjects''
end quote. In this case, we have exactly that situation, and
I'm asking for a commitment that you will provide an
explanation for your decision.
Attorney General Garland. Senator, this is a hard problem
for us. The part of the manual that you're talking about is
about violations of the Civil Rights Act, and what we're
talking about here are false statements.
Needless to say, if the results of this review is
prosecution that will become public. On the question of how
much or whether and how much we can say, if all we do is
decline, I'm just going to have to take that back for
consideration. I take your point, and I will think about it
very carefully, as will the Criminal Division.
Senator Blumenthal. I understand you're not ruling it out,
but I'm going to continue to press for an explanation. I think
the gymnasts deserve it, so does the American public. I hope
that you will make a decision to provide a full and complete
explanation, because I think the credibility of the decision
will largely depend on it.
Let me just say, in my view, we need to do more than focus
on the FBI agents that the Inspector General referred for
prosecution, because this failure was an institutional failure.
Institutional to the FBI, to USA Gymnastics, and the entire
Olympic system. It was an institutional breakdown. To date,
there's been no accountability for anyone in power.
To that end, I am announcing that in the Commerce
Subcommittee that I chair, the Subcommittee on Consumer
Protection, we're going to continue the work that Senator Moran
and I began years ago. We literally began years ago with the
investigation and Olympics reform legislation. We're going to
engage in further oversight of United States Olympic and
Paralympics Committee, the national governing bodies, and
SafeSport to ensure their purported commitment to safety is not
an empty promise. The gymnasts have asked us. They deserve it.
We're going to fulfill that obligation.
In my view, the Department of Justice has to do more as
well. Given the FBI's gross mishandling of the Nassar
investigation, I believe a new review of all of the information
related to Nassar and the USOPC, more broadly, is warranted
here because there are other examples of potential misconduct
that deserve a fresh look.
For instance, Senator Moran and I referred the former CEO
of the USOPC to the Department of Justice for potentially
perjuring himself before our Subcommittee in 2018. We don't
know what, if anything, the Department did with that referral.
We've heard virtually nothing. In addition, the former U.S.
Attorney for the Southern District of Indiana, whose office was
involved in the Nassar investigation, is now representing one
of the disgraced FBI agents. He's representing one of the FBI
agents referred for prosecution. I don't know whether that's a
violation of ethical rules or some other kinds of Department of
Justice policies, but it raises significant questions, and the
Department should have an interest in them.
I hope that we can expect more from you by way of
explanation, and I hope that we can count on you for a new
review of the information related to the Nassar investigation,
USA Gymnastics, and USOPC to determine whether there are
additional cases where prosecution is necessary to hold
wrongdoers accountable.
Attorney General Garland. The institutional failure that
you speak of is quite apparent. I thought that the testimony by
the gymnasts was, as I said, heart wrenching, and they were
courageous.
The FBI Director has adopted all of the recommendations of
the Inspector General and is putting them into effect. In
addition, we have adopted new regulations, new authorities in
the Department, to be clear that if the FBI is investigating a
case of assault on a child and determines that it no longer
has--doesn't have jurisdiction, it immediately inform the
relevant State or local prosecutors and law enforcement--this
is what didn't happen in the Nassar circumstance--and ensure
that that is done so that the State and local will be able to
continue.
Likewise, with respect to transfers from one FBI office to
another, another failure in that case that those be monitored
to ensure that those transfers occurred. We take this extremely
seriously. What happened is just awful. You have the commitment
of the Justice Department, and of the FBI Director and of the
FBI to make these kinds of institutional changes to ensure that
this doesn't happen again.
Senator Blumenthal. I appreciate those points. As you well
know because of your own long and impressive record as a
prosecutor, there's nothing like accountability, individuals
being held accountable to send a message, particularly a
deterrent message, to an institution. Thank you, Madam Chair.
Chair Durbin. [Presiding.] Thank you, Senator Blumenthal. I
have a list from the Republican side, and this is the order
they've given me--correct me if I'm wrong--Tillis, Blackburn,
Hawley, and Cruz. We have two Democratic Senators who have not
asked at this point. We'll wait and see if they arrive. Senator
Tillis. Senator Tillis, I don't know if your mic's on.
Senator Tillis. Better?
Chair Durbin. Better.
Senator Tillis. You may regret it. Mr. Attorney General,
thank you for being here.
You know, in response to the memo, I know you've repeatedly
said this is not about parents. 15 years ago, I was PTA
president at my daughter's high school, participated in a lot
of school board meetings, and I still watch it on public access
back in Mecklenburg County when I'm home.
The basis for your memo was substantially the letter that
you all received. Is that correct?
Attorney General Garland. That was an important part of it.
Yes, Senator.
Senator Tillis. Do you think there was an empirical--I've
seen some of the widely reported situations in some school
board meetings, but is there really any empirical basis for--
I've seen a lot of raucous school board meetings. I've
participated in them.
Is there really any empirical basis? Did the DOJ do any
real work outside of the public reporting to say that there's a
disturbing trend that required the kind of what we consider to
be overreach on behalf of the DOJ?
Attorney General Garland. As I've explained, what we looked
at was the letter from an organization that represents
thousands of school board members and school boards, and public
reports of threats of violence. Even since then, I have further
read quite expressed threats of violence have been reported.
Senator Tillis. I think that--Mr. Attorney General, I want
to try and keep in time in deference to my colleagues behind
me.
Attorney General Garland. Yes. I'm sorry.
Senator Tillis. But I do--I know that you've said it's not
about the parents. When the DOJ releases the memo, and I think
even more importantly, the press statement, I think that it
does have a chilling effect on parents being willing to go and
express their concerns with the direction the school board's
going.
When all the sudden you think that your words in this list
of crimes that the Department has sent I guess to at least the
State of Montana, others, it could have a chilling effect on
people who legitimately have a concern and they want to express
it, but now they may think that they come crosswise with the
FBI.
I do believe that it will have a chilling effect on people
whose right they have to go in, express their concerns like the
Loudoun County, a ridiculous overreach. I think that it will
have that effect, because the full force of the FBI is now
something a parent has to think about before they go before a
school board meeting to express their concerns and they get
frustrated. Like I said, they've been raucous for decades, and
they will be raucous for decades to come.
I really do believe that you should seriously consider
rescinding, revising a statement out there that concerns me for
the parents that I want to show up at school board meetings and
have the school boards held accountable.
The other thing that we should talk about are the numerous
examples of school board members getting caught saying
audacious things. There's one thing you've seen over the past
year. Think about some of the provocative statements that
they've said. They thought they were behind closed doors, but
they were on the internet, basically ridiculing parents and
pretending like they had ball control over their children's
education and their future. We've got to get more parents
engaged, and I think that the effect of the DOJ action is the
exact opposite of that.
Most of my colleagues have covered my concerns, and I agree
with those that are expressed on my side of the aisle.
In response to Senator Graham on immigration, you said that
you did go visit the border. It sounds like you were down there
mainly from the perspective of your role in the DOJ. I
understand that Homeland Security is primarily responsible, but
I would encourage you to go back down there, and maybe we could
share with you our itinerary to talk about why I do believe it
should be a great concern to the DOJ.
We've got almost one and a half million asylum cases on the
docket now, and it takes years to complete them. About 80
percent of them are adjudicated as not having a valid claim.
Doesn't that data lead you to suggest that the asylum system is
being abused? I mean, that's data from the DOJ.
Attorney General Garland. Senator, I don't know for sure
about the data. The purpose of asylum adjudication is to
adjudicate asylum.
Senator Tillis. I understand that. But----
Attorney General Garland. People have--the statute allows
them to make these--this is a statutory question. I'm the
Justice Department.
Senator Tillis. I'm not an attorney. I'm not an attorney.
You're an accomplished judge. I'm looking at this just from a
practical standpoint. When the data says that over almost two
million people have crossed the border illegally since January,
and it is 80 percent likely that they're not going to have a
valid asylum claim, how any reasonable person couldn't look at
that and say something is being abused here. It's a gateway to
get into this country, drift into the shadows, and virtually
never leave the country.
Here's the one that I'm most concerned with, and why I
think a briefing with the same people that we met with at the
border--many of the people on this Committee were there when I
was--hundreds of got-aways a day getting across the border.
Got-aways are not ones that want to be processed through
asylum. They want to evade detection. They want to drift in.
How on earth can we assume that there's anything but a malign
purpose for them trying to evade detection? Otherwise, you just
get into the system. You're going to be here for years. You're
going to abuse the asylum system. They're skirting it to the
tune of a couple of hundred a night, and this has been going on
for months.
We have thousands of people who came into this country.
When the cartels set a pick, they'll send about 50 people over
to engage the border control so that they can send another
couple of hundred into our society. There are drug traffickers.
There are human traffickers. There are gun smugglers. There are
gang members. They're coming in by the thousands every month.
That is a DOJ problem. That is a crime in our communities
problem. It's actually making the Hispanic communities--the
majority of which are coming over are Hispanic--those
communities less safe.
I would really encourage you to go back to the border and
look at it from the perspective of your role as Attorney
General, and the hundreds and the thousands of illegals who are
coming across our border every day, many of them drifting in
and evading detection, and making our communities less safe.
I do have a number. I've got intellectual property, a
number of implementation issues that I'm going to submit for
the record.
Mr. Garland, we have a problem at the border, and the DOJ
has to engage and recognize that part of that problem you're
going to have to fix. We've got to stop the $13 million a day
that the cartels are getting for human trafficking. That's a
documented number. We've got to stop the tons of fentanyl and
drugs that are poisoning Americans because we have an out-of-
control border situation. This is a law enforcement issue. I
understand it's an immigration issue. We have to get you I
think read up, the same way that we were the last time we were
at the border. I'd really encourage you to go back down there
again, talk with the people on the ground, and understand why
this is going to make your job more difficult, and it's already
making America much less safe. Thank you, Mr. Chair.
Chair Durbin. Senator Padilla.
Senator Padilla. Thank you, Mr. Chair. Let me begin with a
comment before I get to a few issues and a few questions,
particularly in light of recent comments from some of my
colleagues about immigration, migration, what is, what isn't
happening.
I'm going to start by recognizing Senator Coons' remarks
earlier, who asked you about what you're doing to address the
backlog in immigration courts, right? One of the best, most
smart approaches to tackling unlawful migration is to improve
the effectiveness, the efficiency of lawful migration. It's not
just investing in immigration courts, but access to counsel.
I just want to add that these are issues that my office
hears about on a very regular basis. I was heartened that
you'll be asking for additional resources to address those
issues. This is certainly an area where money is needed to
improve the processing of immigration cases while ensuring due
process.
To my questions. First, a response that I and several of my
colleagues have been waiting on since April 15th when I and
seven other Members of Congress sent you a letter concerning
the Department's funding and oversight of predictive policing
tools, which are deployed by law enforcement throughout the
country.
As we highlighted in that letter, and I'm happy to provide
an additional copy to you, we're concerned that the Department
of Justice may be devoting precious taxpayer resources to
ineffective tools and encouraging local law enforcement to also
devote resources to unproven strategies. Worse still, those
tools may be perpetuating a vicious cycle of discriminatory
policing against historically marginalized groups.
Because we have not yet received a response, we do not
know, for example, what, if any, conditions there are by the
Department of Justice on the agencies and departments who
deploy predictive policing tools with the aid of Federal funds.
I find this unacceptable.
Attorney General Garland, it's been over 6 months since our
letter was sent to the Department of Justice, and we have yet
to receive an official response. Can you explain the delay and
when we can expect a response?
Attorney General Garland. I can't explain the delay. I
don't know what the reason is, but I will immediately take this
back and be sure that the Office of Legislative Affairs
responds to your letter.
Senator Padilla. Okay. We'll get you another copy of that
letter before we leave here today.
Next issue. As most, I believe we should all, agree, we
need an open and competitive economy that also works for
workers. We talk a lot about entrepreneurism, capitalism,
consumer protection, but we need an economy that also works for
workers, and this demands the Department of Justice's attention
to combat artificially suppressed compensation, employer
collusion, and increasing inequality. You know, for example,
noncompete clauses or no-poach agreements limit the ability of
many workers throughout our economy to switch to better paying
opportunities or start their own businesses in a number of
sectors. Antitrust protection for labor organizing does not yet
explicitly extend to gig economy workers who are classified as
independent contractors by their employers. Corporate
consolidation can limit the pool of companies in a labor market
competing to attract and retain workers.
Attorney General Garland, what is the Department of Justice
doing to ensure that there is competition in our labor markets,
and is this yet another area where the Department needs
additional resources to fulfill the mission laid out by
President Biden?
Attorney General Garland. Thank you for the question. The
Justice Department's Antitrust Division agrees--I don't know if
you can hear either--agrees that competition in labor markets
is as much a part of the antitrust laws as competition in
product markets or consumer markets. We have a number of
investigations involved in those areas that you're talking
about. We have a criminal case, all public. On the no-poaching
issue, we've brought cases and investigations regarding
allocations of labor markets.
I think I can fairly say we agree with you, this is an area
of concern and it's an area of Antitrust Division focus. The
Antitrust Division does need more money and more lawyers, and
economists, and investigators. It was down substantially, one
of the lowest headcounts in quite a number of years, and we
very much need to build that back. That's why our fiscal year
2022 appropriations request asked for a substantial increase in
money for the Antitrust Division.
Senator Padilla. Okay. Wonderful. I look to supporting
those requests for additional resources.
Finally, in the time remaining, yet another topic. Earlier
this month, this Committee released a report detailing former
President Trump's scheme to pressure the Department of Justice
and overturn the will of the people who voted for now-President
Joe Biden so that he could serve again as President. The report
outlined behavior that follows a pattern and practice of
intimidation, coercion, and outright bullying by the former
President's administration.
If we don't hold these bad actors accountable, we face the
possibility of eroding public trust in our institutions.
Americans are looking for accountability, and they're looking
to you, Attorney General, as the leader of your agency to
administer justice.
My question is this: Are you willing to recommit yourself
to pursuing every possible avenue and every possible lead for
holding those accountable who have used public office to
undermine and demean our democracy?
Attorney General Garland. As a general matter, the answer
of course is yes. I don't want to talk about specific
investigations except to point out what's already been stated
publicly on the record, which is a component of the Justice
Department, although an independent one. The Inspector General
is examining the matters about which you're speaking. I have
full confidence that he will advise me and the Department of
what he finds, and we will then take appropriate action.
Senator Padilla. Okay. Thank you. Just in closing, I would
hope that that would include review and consideration of
allegations documented in a recent Rolling Stone article where
participation in the leadup on January 6th and on January 6th,
was not limited to just White House officials but actual
Members of Congress as well. Thank you. Thank you, Mr. Chair.
Chair Durbin. Thank you. We're going to recognize Senator
Blackburn, then take a 5-minute break, return, and we have
Senator Ossoff, Senator Hawley, Senator Cruz.
I just say to the two or three members who have said they
might be interested in a 3-minute round, please be here. You
have to be physically present, because this has been a long day
for all of us who have stayed here most of the time,
particularly for the Attorney General.
Senator Blackburn, and then a 5-minute break.
Senator Blackburn. Thank you, Mr. Chairman. General
Garland, thank you for being with us today.
I have to tell you that it is with much disappointment that
I have watched the DOJ be so politicized and the way things
have been carried out, when you look at the memo to parents.
You've heard a lot about that today, and it's because we're
hearing a lot about that. I just have to ask you, knowing that
you really helped bring to justice those that caused the
Oklahoma City bombing. Would you really honestly put parents in
the same category as a Terry Nichols or a Timothy McVeigh?
Attorney General Garland. My God. Absolutely not.
Senator Blackburn. Then why would you ever release a memo?
I mean, did you write that memo? Did staff write that memo?
What would have led you to do this? It is so over the top.
Attorney General Garland. Senator, there's nothing in the
memo that in any way draws any comparison to anything like
that. This memo is about violence and threats of violence. It's
not address----
Senator Blackburn. Sir, I have to tell you that that may be
your opinion. You know, many times, perception is reality.
Reading that memo myself, Tennesseans reading that memo, what
they found in that memo, what they heard you say, was if you
show up and you question these school boards, you will be
deemed a domestic terrorist. You could be investigated by the
FBI.
I mean, the FBI has a lot of other things that they should
be focusing on. The FBI should be there looking at issues like
China. The Knoxville FBI has been very concerned about China.
Give me a little update. What's the status of the China
initiative at DOJ?
Attorney General Garland. Senator, we regard People's
Republic of China as an extraordinarily serious and aggressive
threat to our intellectual property, to our universities, to
our----
Senator Blackburn. Okay. You're stonewalling me on that. We
all know they are an aggressive threat.
Attorney General Garland. We continue to investigate----
Senator Blackburn. Okay.
Attorney General Garland [continuing]. PRC efforts to----
Senator Blackburn. Do you see them as an adversary?
Attorney General Garland. I see them as adversarial with
respect to our ransomware, with respect to hacking our----
Senator Blackburn. Okay.
Attorney General Garland. With respect to our
counterintelligence, respect to counterespionage, and all those
ways.
Senator Blackburn. We know that over the last several
months, the last 9 months, several espionage prosecutions of
researchers have been dropped or charges have been dismissed,
including those of a UT professor at UT Knoxville, and of
course the Huawei case is there. This is in spite of the fact
that Director Wray recently testified that the FBI opens a new
Chinese espionage investigation every 12 hours.
Are there apparent failures of the initiative? Is it a lack
of leadership? Or is it a compromise position with the
administration? Is it incompetence?
Attorney General Garland. Every case is evaluated on its
own with respect to the law and the facts. We continue to open
cases involving the People's Republic of China daily, as the
director said. We will not in any way let up our concerns about
Chinese----
Senator Blackburn. Okay. All right. I want to move on. I'm
glad to know you're not going to go soft on China, because this
administration is going soft on China.
On your directive going back to the School Board
Association and the directive that you sent us, the NSBA has
apologized. Are you planning to apologize to the parents of
this country, moms and dads?
Attorney General Garland. There is nothing in this
memorandum that any parent should be concerned about.
Senator Blackburn. There is a lot that parents should be
concerned about it.
Let me ask you about the Durham investigation, because 44
Senators joined me in a letter that we sent to you in August,
and we still have not received a written response from you on
the status of the Durham investigation. Will you provide for me
a written status report of the Durham investigation?
Attorney General Garland. The particular aim I think of the
letter asked about the budget. As I said at the House
Committee, Mr. Durham is continuing. The only way he could----
Senator Blackburn. We asked for a status update. We also
asked that the report be made public, available to the public
on the completion of the work. Will that be made public?
Attorney General Garland. On both of those questions, his
budget has been approved, as I already announced.
Senator Blackburn. Okay.
Attorney General Garland. With respect to the report, I
would like as much as possible to be made public. I have to be
concerned about Privacy Act concerns and classification. Other
than that, the commitment is to provide a public report. Yes.
Senator Blackburn. Can you guarantee this Committee that
Special Counsel Durham has free rein to proceed wherever his
investigation takes him without any political or otherwise
undue influence or interference?
Attorney General Garland. No, there will be no political or
otherwise undue interference with Mr. Durham's investigation.
Senator Blackburn. Okay. Susan Hennessey was recently hired
to work in your National Security Division. This is a troubling
hire because of her political bias. She has made several
comments that show she is incapable of working impartially on
sensitive matters within the National Security Division,
particularly on the Durham investigation.
For example, December 1st, 2020. Ms. Hennessey stated, and
I am quoting, ``Durham has made abundantly clear that in a year
and a half, he hasn't come up with anything. I guess this kind
of partisan silliness has become characteristic of Barr's
legacy, but unclear to me why Durham would want to go along
with it.''
How can the American people be certain that she is going to
be fair and impartial when she is on the record making those
statements? Has she retracted that statement? Do you intend to
ask her to retract that statement?
Attorney General Garland. I have to confess. I don't think
I've even ever met Ms. Hennessey, and she has nothing
whatsoever to do with the Durham investigation.
Senator Blackburn. You may want to look at her. She is
there in your National Security Division, and she is very much
opposed to this.
I want to thank you for your time. I am going to send a
couple of questions to you for more complete answers. I
associate myself with the comments by my colleagues that the
border issues have turned every town into a border town, and
every State into a border State. The amount of drugs, the
amount of trafficking that is flowing in here, talking to local
law enforcement, the way they're looking at the cartels. Mr.
Attorney General, there is a lot that needs to be done to
secure this--this country, and the parents of the kiddos in our
school, they are not the problem. There are other problems that
need your attention.
Chair Durbin. Thank you, Senator Blackburn. The Committee
will stand in recess for 5 minutes.
[Whereupon the Committee was recessed and reconvened.]
Chair Durbin. The Committee will resume. Senator Hawley.
Senator Hawley. Mr. Chairman, did you call on me or Senator
Ossoff?
Chair Durbin. Oh, I'm sorry. I----
Senator Hawley. I'm happy to go, but----
Chair Durbin. I didn't see Senator Ossoff. I apologize.
Senator Ossoff, then Senator Hawley.
Senator Ossoff. Thank you, Senator Hawley. Thank you, Mr.
Chairman. Attorney General, nice to see you. Thanks for joining
us.
Last week, the Senate passed legislation that I introduced
alongside Chair Durbin and Ranking Member Grassley, the Prison
Camera Reform Act, to reduce violence and civil rights abuses
in BOP facilities by overhauling a security camera system that
IG Horowitz has found as outdated, unreliable, as well as the
means of preserving and recording the footage from those
systems.
Do you agree that these reforms are necessary, and should
this bill become law, will you commit to prioritizing the
implementation of the requirements it imposes upon the BOP?
Attorney General Garland. Yes and yes.
Senator Ossoff. Thank you, Attorney General. Like to
discuss with you staffing issues at the Bureau of Prisons.
Earlier this year, the GAO, which as you know is a nonpartisan
independent watchdog, concluded that BOP lacks a reliable
method for assessing the scope of staffing issues, or the
impact on incarcerated populations and staff of staffing issues
at BOP facilities.
Do you agree the inability to reliably measure this problem
impedes BOP's ability to address gaps, for example, shortages
of medical staff, shortages of personnel who will help
implement the First Step Act and anti-recidivism programs, as
well as makes it more difficult for Congress to respond? Will
you commit to working with my office to help identify where
there's gaps in planning or budgeting, or personnel management,
or the authorities that BOP has?
Attorney General Garland. Yes, Senator. I met with the
Comptroller General about this--the various of his reports, and
this one in particular. I agree this is a serious problem with
the Bureau of Prisons. The Deputy Attorney General has been
working on this problem for quite some time now, as she has
repeat meetings with the Bureau of Prisons to go over this
issue with respect to staffing and assessment. I'd be happy to
have somebody on our staff meet with your staff.
Senator Ossoff. Thank you, Attorney General. The Inspector
General has determined that BOP lacks a clear and consistent
policy for the use of solitary confinement in BOP facilities.
Has BOP to your knowledge issued such a policy?
Attorney General Garland. I don't know the answer to that.
Senator Ossoff. Okay. Will you work with my office to
determine whether they have and what may need to be done to
ensure that they do?
Attorney General Garland. Of course.
Senator Ossoff. Thank you, Attorney General. Question about
commercial data and its use in DOJ investigations. In 2018, the
Supreme Court issued its Carpenter v. United States decision
that government agents must obtain a warrant before collecting
cell phone data that showed the location of a device over a 7-
day period. Of course, this data is widely available for many
U.S. persons on commercial markets through data brokers and
other technology companies.
To your knowledge, do any Federal agencies currently
purchase data, or any DOJ components currently purchase data or
contract for services that provide device location data from
commercial vendors? Is this data used in investigations or
prosecutions?
Attorney General Garland. I don't believe that we purchase
location data, but I'll be happy to look into that and get back
to you on that, as well.
Senator Ossoff. I'd be grateful, because I think there are
serious Fourth Amendment concerns there.
Would like to discuss the FISA process with you. In its
report last month, the Office of the Inspector General noted
that DOJ and FBI still had work to do to implement the IG's
recommendations to strengthen the review process for FISA
applications to ensure they contain accurate information. While
this has unfortunately become a partisan issue over the last
few years, it's fundamentally an issue of privacy, due process,
and the integrity of the Foreign Intelligence Surveillance
Court and the applications it receives.
The IG's report notes that the FBI has not significantly
changed the process by which a supervisor such as the Assistant
Attorney General from National Security Division reviews and
documents the factual assertions made in FISA applications. I
discussed this issue with Matt Olsen when he was before the
Committee for his confirmation.
What steps is the DOJ taking to make substantive changes to
the FISA review process and comport with the IG's
recommendations?
Attorney General Garland. I completely agree that this
should not be a partisan issue. FISA, on the one hand, is
extraordinarily important tool for our ability to protect the
country against foreign enemies. On the other hand, it's a tool
that has to be dealt with the most extreme care because we have
to protect American citizens from unwarranted surveillance and
nonjudicial surveillance.
I take the Inspector General's report extraordinarily
seriously. I believe the one you're talking about though refers
back to events from 2020 and 2019. Regardless, we take this
very seriously, and the FBI Director does as well.
The National Security Division of the Department reviews
what the FBI is doing with respect to FISAs routinely, audits
and analyzes them to be sure that they are following the
correct rules. We intend to continue that kind of intensive
review to ensure that internal regulations and requirements of
the FISC are maintained.
Senator Ossoff. Thank you, Attorney General. I believe
there is within the last couple of months some additional
recommendations or concerns expressed by the IG about the
implementation of changes pursuant to his prior conclusion,
so----
Attorney General Garland. I think this is the Woods files
that you're talking about. Again----
Senator Ossoff. That's correct.
Attorney General Garland [continuing]. I quite agree that
this has to be done better. As I think he said, it's a work in
progress, and there is certainly considerably more room for
improvement, and we are focused on making those improvements.
Senator Ossoff. Okay. Please know that there's bipartisan
concern about seeing those improvements implemented.
Attorney General Garland. As there should be.
Senator Ossoff. Final question for you about press freedom,
Mr. Attorney General. You issued a memo in July prohibiting the
Department from using subpoenas, court orders, or warrants to
obtain information on the confidential sources of reporters.
This new policy as you defined it offers broad protections for
members of the news media but does not qualify or define with
specificity who qualifies as members of the news media.
Is there a specific interpretation of that phrase that's
been issued in internal Department guidance?
Attorney General Garland. The answer to that is no. We have
discussed this with representatives of the news media
continuously, and as part of our review for purposes of turning
this memorandum into a regulation, we are continuing to discuss
this. As you can imagine, it's very difficult to make that kind
of definition.
Senator Ossoff. Very important to get it right?
Attorney General. Garland. I'd completely agree.
Senator Ossoff. I think my staff will likely ask yours for
a briefing on the progress of your deliberations, and perhaps
we'll weigh in.
Thank you for your service, Attorney General, and for your
responses, and I yield back.
Chair Durbin. Thank you, Senator Ossoff. Senator Hawley.
Senator Hawley. Thank you very much, Mr. Chairman.
Attorney General Garland, on October 4th, you issued an
unprecedented memo that involves the Department of Justice and
the FBI and local school districts, local school boards,
nothing like it in our country's history. It was based, you've
testified, on this letter from the National School Board
Association that we now know the White House was involved in
writing. They've retracted the letter. They've apologized for
the letter. They say they regret the letter. You won't retract
the memo and said earlier that you have no regrets.
You've defended yourself repeatedly today before this
Committee by saying, well, you're focused on violence. Now of
course, we've seen the memo from your own Justice Department
advising State and local and other prosecutors about all of the
different Federal causes of action that they can bring against
parents that are not about violence. They're about harassment
and intimidation. I'm looking here at this memo. It identifies
no fewer than 13 possible Federal crimes involving harassment
and intimidation including making annoying phone calls.
Do you think a parent who makes a phone call to a school
board member that she has elected, that that school board
member deems annoying, should be prosecuted, General Garland?
Attorney General Garland. No, I don't. The Supreme Court
has made quite clear that the word intimidation with respect to
the constitutional protection is one that directs a threat to a
person with the intent of placing the victim in fear of bodily
harm or death.
Prosecutors who investigate these cases know the Supreme
Courts. This is a very famous leading case in----
Senator Hawley. Prosecutors do, but parents don't, General
Garland. Do you think that a parent who looks at the 13
different Federal crimes that your Justice Department has
identified they might be subject to and prosecuted for, like
making annoying phone calls, do you think that they're going to
feel that they're welcome to speak up at a school board
meeting?
How about this one? They could be prosecuted for using the
internet--I guess that would be Facebook--in a way that might
cause emotional distress to a victim. Is that a crime of
violence?
Attorney General Garland. Senator, I haven't seen the memo
that you're talking about----
Senator Hawley. Why haven't you?
Attorney General Garland [continuing]. I don't--and even
from the description, it doesn't sound like it was addressed to
parents. But if you----
Senator Hawley. No, it wasn't addressed to parents. It was
addressed to prosecutors. That's the problem. Why haven't you
seen the memo?
Attorney General Garland. I don't know why I haven't. I
don't look at every--I do not get every memo that every U.S.
Attorney sends out. If you're----
Senator Hawley. Wait a minute. I just want to be sure I
understand this. This is a memorandum that collects 13
different Federal crimes parents could be charged with. It has
United States Department of Justice on the top of it. You're
telling me you haven't seen it?
Attorney General Garland. Who's the memo from, Senator?
Senator Hawley. The United States Department of Justice,
United States Attorney for the District of Montana.
Attorney General Garland. I have not seen a memo from the
District of Montana.
Senator Hawley. Not high enough priority for you?
Attorney General Garland. That's not the question. I
don't----
Senator Hawley. It is the question. Answer my question. Is
it not a high enough priority for you when you're threatening
parents with 13 different Federal crimes? These aren't crimes
of violence. You've testified today you're focused on violence.
That's not what your U.S. Attorneys--they work for you--that's
not what they're saying. You haven't seen it because it's not a
high enough priority, or what?
Attorney General Garland. It's not a question of priority.
No one has sent me that memo, so I haven't seen it.
Senator Hawley. What do you mean, no one has sent you the
memo? You run the United States Department of Justice, do you
not?
Attorney General Garland. There are 115,000 employees of
the Department of Justice.
Senator Hawley. Indeed. You are in charge of every one of
them. This was a sufficiently important case that you issued a
memo. You, over your signature, issued a memo involving the FBI
and the Department of Justice in local school boards, local
school districts. Your U.S. Attorneys are now threatening
prosecution with 13 different crimes. It's not a high enough
priority for you? It got lost in the mix?
Attorney General Garland. Again, I've never seen that memo.
It wasn't sent to me.
Senator Hawley. That's what concerns me, General Garland.
Attorney General Garland. It wasn't sent to me. I hope you
will assure your constituents that what we are concerned about
here is violence and threats of violence. That's the best way--
--
Senator Hawley. That only leads me to conclude--General
Garland, all I can conclude from this is either that you're not
in control of your own Department, or that more likely what I
think to be the case is, is that you knew full well that this
is exactly the kind of thing that would happen.
When you issued your memo, when you involved the Department
of Justice and all of its resources, and the FBI and all of its
resources, in local school boards and local school districts,
you knew that Federal prosecutors would start collecting crimes
that they could use against parents. You knew they would advise
State and local officials that these are all of the ways
parents might be prosecuted. You knew that that was the likely
outcome, and that's exactly what's happened.
We're talking about parents like Scott Smith who's behind
me over my shoulder. This is a father from Loudoun County,
Virginia. Here he is at a school board meeting. He was forcibly
restrained. He was assaulted. He was arrested. Why? Because he
went to an elected school board meeting. He's a voter, by the
way. He went to an elected school board meeting to raise the
fact that his daughter was assaulted, sexually assaulted in a
girls' restroom by a boy. This is what happened to him.
You testified last week before the House that you didn't
know anything about this case. I find that extraordinary,
because the letter that you put so much weight on, the letter
that's now been retracted, it cites this case. It cites Mr.
Scott's case directly. There's a news article cited in the
letter. It's discussed in the letter. You testified you just
couldn't remember it. Maybe this will refresh your memory.
Do you think people like Scott Smith, do you think parents
who show up to complain about their children being assaulted
ought to be treated like this man right here?
Attorney General Garland. Parents who show up to complain
about school boards are protected by the First Amendment.
Senator Hawley. Do you think that they ought to be
prosecuted in the different ways that your U.S. Attorneys are
identifying?
Attorney General Garland. If what they're doing is
complaining about what the school board is doing, policies,
curriculum, anything else that they want to, as long as they're
not committing threats of violence, then they should not be
prosecuted, and they can't be.
Senator Hawley. Let me ask you about this. Several of my
Democrat colleagues have today, just today in this hearing,
multiple times, have compared parents who show up at school
board meetings like Mr. Smith here, have compared them to
criminal rioters. Do you think that's right? Do you think that
a parent who shows up at a school board meeting who has a
complaint, who wants to voice that complaint, and maybe she
doesn't use exactly the right grammar, you think they're akin
to criminal rioters? Do you agree with that?
Attorney General Garland. I do not, and I do not remember
any Senator here making that comparison.
Senator Hawley. Oh, really? These people are just like the
folks who came here on January 6th and the riot at the Capitol?
Attorney General Garland. I don't think they were referring
to the picture that you're showing there.
Senator Hawley. I certainly would hope not, but they were
referring to parents who go to school board meetings. Mr. Smith
is a parent who went to the school board meeting.
I'll leave it at this, General Garland. You have weaponized
the FBI and the Department of Justice. Your U.S. Attorneys are
now collecting and cataloging all the ways that they might
prosecute parents like Mr. Smith because they want to be
involved in their children's education, and they want to have a
say in their elected officials. It's wrong. It is
unprecedented, to my knowledge, in the history of this country,
and I call on you to resign. Thank you, Mr. Chairman.
Chair Durbin. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman.
For 8 years under Barack Obama, the Department of Justice
was politicized and weaponized. When you came before this
Committee in your confirmation hearing, you promised things
would be different. I asked you specifically, quote ``Will you
commit to this Committee that under your leadership, the
Department of Justice will not target the political opponents
of this administration?'' Here was your answer, quote.
``Absolutely. It's totally inappropriate for the Department to
target any individual because of their politics or their
position in a campaign.'' That was your promise just a few
months ago. I'm sorry to say you have broken that promise.
There is a difference between law and politics. General
Garland, you know the difference between law and politics. Law
is based on facts. It is impartial. It is not used as a tool of
political retribution. This memo was not law. This memo was
politics.
On Wednesday, September 29th, the National School Board
Association wrote a letter to the President asking the
President to use the Department of Justice to target parents
that were upset at Critical Race Theory, that were upset at
mask mandates in schools, to target them as domestic
terrorists.
On the face of the letter, the letter was in repeated
consultation with the White House, an explicit political
consultation with the White House. That was on Wednesday,
September 29th. Five days later, on Monday, so right after the
weekend, boom. You pop out a memo, giving them exactly what
they want.
By the way, I understand that. In politics that happens all
the time. An important special interest wants something. Sir,
yes, sir. We're going to listen to them.
Let me ask you ask you something, General Garland. In the
letter, which you told the House of Representatives was the
basis for this abusive memo targeting parents, how many
incidents are cited in that memo?
Attorney General Garland. I have to look back through the
memo. I can't count it.
Senator Cruz. Okay. You don't know. How many of them were
violent?
Attorney General Garland. Again, the general report----
Senator Cruz. How many of them were violent, do you know?
Attorney General Garland. I don't know.
Senator Cruz. You don't know. There's a reason you don't
know. Because you didn't care, and nobody in your office cared
to find out.
I did a quick count just sitting here during this hearing.
I counted 20 incidents cited. Of the 20, 15 on their face are
nonviolent. They involve things like insults. They involve a
Nazi salute. That's one of the examples. My God, a parent did a
Nazi salute at a school board because he thought the policies
were oppressive. General Garland, is doing a Nazi salute on an
elected official, is that protected by the First Amendment?
Attorney General Garland. Yes, it is.
Senator Cruz. Okay. Fifteen of the 20 on the face of it are
not violent. They're not threats of violence. They're parents
who are unhappy. Yet miraculously, when you write a memo, the
opening line of your memo, ``In recent months there has been a
disturbing spike in harassment, intimidation, and threats of
violence.'' You know what? You didn't look and nobody on your
staff looked. Did you even look up the 20 instances?
Attorney General Garland. Look, as I testified, the
decision to make--to send a memo is for an assessment----
Senator Cruz. Did you look up the 20 instances?
Attorney General Garland. I did not read----
Senator Cruz. Did anyone on your staff look them up?
MAttorney General Garland. I don't know the answer, but
it's not all of the memo.
Senator Cruz. Of course you don't. General, there's a
reason. Look. You started your career as a law clerk to Justice
Brennan. You've had many law clerks during the year, during
your time as a judge. I was a clerk to Chief Justice Rehnquist.
I'll tell you what. If I drafted an opinion for the Chief
Justice and walked in and it said, ``There's a disturbing
pattern of violence.'' ``Well, Ted, how do you know that?''
``Well, I've got an amicus brief here who claims it.'' You
would fire a law clerk who did that.
You're the Attorney General of the United States. This was
not a Tweet you sent. This is a memo to the Federal Bureau of
Investigations saying go investigate parents as domestic
terrorists.
Attorney General Garland. That is not what the memo says at
all. It does not----
Senator Cruz. Is it what the letter says?
Attorney General Garland. That is not what my----
Senator Cruz. Is it what the letter says?
Attorney General Garland. I don't care what the letter
says. What I said----
Senator Cruz. You don't care? You said it was the basis of
your memo. You testified under oath before the House of
Representatives the letter was the basis of your memo. You
don't care about the letter?
Attorney General Garland. The letter and public reports of
violence and threats of violence. My memo says nothing about
domestic terrorism. It says nothing about parents committing
any such things. My memo is an attempt to get an assessment of
whether there is a problem out there that the Federal
Government needs to----
Senator Cruz. The letter on its face says the actions of
the parents could be the equivalent to a form of domestic
terrorism.
Attorney General Garland. That is wrong, and that----
Senator Cruz. Asks the President to use the Patriot Act in
regards to domestic terrorism directed at parents.
Attorney General Garland. You'll note----
Senator Cruz. This was the basis of your memo.
Attorney General Garland. My memo----
Senator Cruz. The Department of Justice, when you're
directing the FBI to engage in law enforcement, you're not
behaving as a political operative because a political ally of
the President says, ``Hey, go attack these parents because we
don't like what they're saying.'' Department of Justice, you
did no independent research on what was happening, did you?
Attorney General Garland. The memo has nothing to do with
partisan----
Senator Cruz. Did you do independent research?
Attorney General Garland. The memo has----
Senator Cruz. Did you do independent research?
Attorney General Garland. The memo has nothing to do with
partisan politics.
Senator Cruz. You're not answering that question. You've
testified you know nothing about the violent sexual assault
that happened in Loudoun County, even though it's one of the
bases in this letter.
Attorney General Garland. I read about it since then.
Senator Cruz. Okay. You told the House last week you knew
nothing about it.
Attorney General Garland. I did not know at the time, no.
Senator Cruz. Okay. This week, the court concluded that a
14-year-old girl was violently raped by a boy wearing a skirt
in the girls' restroom. The school district covered it up,
released the boy, sent him to another school, where he
violently raped another girl. The father, who Mr. Hawley just
showed you, was the father of the first girl. He was
understandably--do you understand why a parent would be upset
when your daughter is raped at school, the school board covers
it up, and then lies to you and claims there have been no
assaults, we have no instances of assaults in our bathroom?
That was a flat out lie as the court concluded this week. Do
you understand why the parent would be upset?
Attorney General Garland. Absolutely, and as any
expressions of upset are completely protected by the First
Amendment.
Senator Cruz. Except you just called him a domestic
terrorist.
Attorney General Garland. I never called him that. That's
not correct.
Senator Cruz. This letter calls him a domestic terrorist.
You based a direction to the FBI, an official direction from
the Attorney General on this letter. I'll tell you what. The
NSBA is so embarrassed of this letter, they've apologized for
it and retracted it, but you don't apparently have the same
willingness to apologize and retract what you did.
Let me ask you something else. A big part of this letter is
that they're upset about parents not wanting Critical Race
Theory taught. Your son-in-law makes a very substantial sum of
money from a company involved in the teaching of Critical Race
Theory. Did you seek and receive a decision from an ethics
advisor at the Department of Justice before you carried out an
action that would have a predictable financial benefit to your
son-in-law?
Attorney General Garland. This memorandum is aimed at
violence and threats of violence.
Senator Cruz. I just asked a question. Did you see an
ethics opinion?
Attorney General Garland. It has no predictable----
Senator Cruz. Did you seek an ethics opinion?
Attorney General Garland. It has no----
Senator Cruz. Did you seek an ethics opinion? Judge, you
know how to ask questions and answer them. Did you seek an
ethics opinion?
Attorney General Garland. You asked me whether I sought an
ethics opinion about something that would have a predictable
effect on something. This has no predictable affect in the way
that you're talking about.
Senator Cruz. If Critical Race Theory is taught in more
schools, does your son-in-law make more money?
Attorney General Garland. This memo has nothing----
Senator Cruz. If Critical Race Theory is taught in more
schools, does your son-in-law make more money, yes or no?
Attorney General Garland. This memorandum has nothing to do
with Critical Race Theory or any other kind of curriculum at--
--
Senator Cruz. Will you answer if you sought an ethics
opinion? Will answer if you sought an ethics opinion?
Attorney General Garland. I am answering the best I can.
Senator Cruz. Yes or no. Did you seek an ethics opinion?
Attorney General Garland. This memorandum has nothing----
Senator Cruz. Did you seek an ethics opinion?
Attorney General Garland. This memorandum has nothing to do
with Critical Race Theory.
Senator Cruz. General, are you refusing to answer if you
sought an ethics opinion?
Attorney General Garland. I'm telling you that there's no
possible----
Senator Cruz. You're saying no. Just answer it directly.
You know how to answer a question directly. Did you seek an
ethics opinion?
Attorney General Garland. I'm telling you that if I thought
there was any reason to believe there was a conflict of
interest, I would do that. I cannot imagine a conflict of
interest.
Senator Cruz. Why do you refuse to answer the question? Why
won't you just say no?
Attorney General Garland. I'm sorry.
Senator Cruz. You're not going to answer the question?
Attorney General Garland. I'm sorry. Ask the question
again.
Senator Cruz. Did you seek an ethics opinion?
Attorney General Garland. I'm saying again, I would seek an
ethics opinion----
Senator Cruz. No is the answer, correct?
Chair Durbin. Senator, your time is up.
Senator Cruz. Let the record reflect the Attorney General
refuses to answer whether he sought an ethics opinion, and
apparently ethics are not a terribly high priority in the Biden
Justice Department.
Attorney General Garland. I don't think that's a fair
reflection of what I said.
Senator Cruz. Then answer the question.
Chair Durbin. Senator, you've gone way beyond any other
Senator's time. I think you ought to be at least respectful of
other Senators at this point.
Senator Cruz. Mr. Chairman, do you know the answer, whether
he sought an ethics opinion?
Chair Durbin. I think you have exchanged that so many
times, we know where we stand.
We have a request for 3-minute rounds, and I have one from
Senator Hirono and Senator Lee and Senator Booker. I'm sorry.
First of course, Ranking Member Grassley. We're going to stick
to 3 minutes. It's been 4 hours since the Attorney General's
been in that chair with a couple breaks, and I think we should
try to wrap up if we can.
Senator Grassley. Request to put something in the record. A
Wall Street Journal editorial titled about the domestic
terrorist parents. The article notes that the October 4th DOJ
memo should be formally rescinded.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Grassley. Yes. General, after a great deal of
pressure from victims and Congress, I know that you're taking
another look at the Department's disgusting decision not to
prosecute employees for lying to government officials in the
Nassar investigation. Do you anticipate that the Department
will similarly expunge the records of these employees just like
McCabe or could--continue to give them get out of jail free
cards as you've done so far?
Attorney General Garland. As I said, Senator, we are
reviewing the decisions with respect to the alleged false
statements. That review is being done by the Criminal Division.
Senator Grassley. Okay. Beginning in the summer of 2020,
American cities began to see appalling and unprecedented spike
in violent crime, murders, and gang violence as liberal
politicians operated under the rallying cry of Defund the
Police. This movement translated into over 1,200 deaths in 2020
alone. In the summer of 2020, then Attorney General Barr
instituted Operation Legend as a way to combat the rising spike
in violent crime.
By any measure, this surge in Federal agents was a
resounding success. By December 2020, over 6,000 arrests had
been made. Over 2,600 firearms had been taken off of streets,
and approximately 467 people had been arrested for homicides.
Given the clear success of Operation Legend, why is the
Department seemingly directing its efforts toward school board
meetings, but not toward real threats or real acts of violence
that happen every day in American citizens? A simple question.
Does Operation Legend still exist?
Attorney General Garland. My understanding was Operation
Legend was directed at violence over the summer of 2020. We
have addressed another surge of Federal prosecutorial and law
enforcement efforts. This last summer, we have stepped up the
amount of money we're giving to State and locals, and we have
increased our joint task forces together.
I visited Federal and State law enforcement in New York and
in Chicago and in Los Angeles and in San Francisco, all aimed
at violent crime in those areas. And we've asked for
considerable additional money, about $1 billion in grants, to
fund State and local police in fiscal year 2022. So, I think
that's--I hope that answers your question.
Senator Grassley. Okay. Only four packers, JBS, Tysons,
Cargill, and National Beef, control more than 80 percent of the
cattle market. These companies hold a tremendous amount of
market power. The Justice Department issued civil investigative
demands in May 2020, but we've yet to learn anything from this
investigation.
Could you provide an update, and can you commit to
expediting this investigation so that our cattle producers know
whether there are any antitrust violations?
Attorney General Garland. I can't discuss specific
investigations. We have longstanding policies against that. I
can tell you that the Antitrust Division is aggressively
concerned with competition in the market that you described. We
are also in frequent consultation with the Agriculture
Department with regard to the Packers and Stockyards Act. We
regard this as an area where we have to be very much concerned
about exclusionary behavior and anticompetitive behavior.
Senator Grassley. Thank you.
Chair Durbin. Thanks, Senator Grassley. Senator Hirono.
Senator, I think your mic's not turned on.
Senator Hirono. One thing I have to say as we listen to, I
don't know, going on hour three, is that the Republicans, once
they focus on something, they just stick with it.
It is amazing to me that there is all this
mischaracterizing of the Attorney General's memo, as well as a
letter from the acting U.S. Attorney of Montana and his letter
is also totally mischaracterized as to what the focus of the
Attorney General's letter is.
I would like to submit for the record the acting U.S.
Attorney of Montana's letter.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Hirono. As I said, it's pretty--it's kind of
amazing but not unusual that my Republican colleagues will
continue to focus on something that the Attorney General has to
continue to testify for the last 3 hours or whatever it is that
his letter is being mischaracterized. They will focus on that
until the nth degree.
At the same time, you know, what is a real problem is the
fact that we have 530 voter suppression bills that have been
introduced in 47 states, the vast majority by Republican
legislatures, and people's votes are literally being stolen
through these voter suppression actions. Do we hear word one
about the fact that this is happening all across the country
that voter suppression, stealing of votes is happening?
Does a single Republican even care about that? No. Let's
let that sink in that they talk about all of these, the memos
they're totally mischaracterizing, and yet what is actually
happening in voter suppression, not a peep.
I want to ask you, Mr. Attorney General. Shelby County
pretty much gutted the Voting Rights Act, and then followed by
Brnovich wherein the majority opinion suddenly comes up with
all these guideposts that the Justice Department now has to
prove in order to protect our right to vote. Can you just tell
us what the impact of the Supreme Court's Shelby County and
Brnovich decisions have been on the Justice Department's
ability to protect our right to vote? Is there something we can
do? Are there tools that we can provide through congressional
action that will enable you to protect our right to vote?
Attorney General Garland. Yes, Senator. The right to vote
is a fundamental pillar of American democracy. The Voting
Rights Act is one of the greatest statutes that was ever
passed. It enabled the Justice Department to protect people's
right to vote, and to prevent against discrimination based on
race and ethnicity with respect to patterns or practices, with
respect to voting.
In Shelby County, the Supreme Court took out the most
important tool we have, which was Section 5, which allowed
preclearance by the Justice Department, or alternatively,
allowed the State to go to Federal court to get clearance. That
left us with a circumstance of having to examine each case one
by one with the burden on the Justice Department.
One thing that the Congress could do is put Section 5 back
in place as the Supreme Court indicated could be done with the
appropriate legislative record.
Second, Brnovich interpreted Section 2, a statutory
section, in a way that the Justice Department disagrees with as
we made clear in our papers. I'm not saying anything we didn't
say in our Supreme Court argument. They narrowed it in a way
that we think was not consistent with congressional intent, and
which makes our ability to challenge discriminatory changes in
voting much more difficult.
Congress could again fix that by bringing back Section 2 to
what Congress originally intended and making that clear in
statutory language. Both of those changes would be enormously
important from the point of the Justice Department's success in
protecting the right to vote.
Chair Durbin. Thank you, Senator.
Senator Hirono. Well--I'm sorry.
Chair Durbin. Thank you, Senator.
Senator Hirono. Mr. Chairman, it's clear that we will have
to do those things that the Attorney General recommends to
protect people's right to vote without a single Republican
going in that direction. That's how pathetic it all is. Thank
you.
Chair Durbin. Thank you, Senator. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Attorney General
Garland, I find it deeply concerning that you still haven't
cited a single example of a true threat of violence. If I'm
understanding this correctly, and I've been here for most of
this hearing--I've had to step out to vote a couple of times--
but I think you seem to admit you didn't do any independent
research outside of receiving the September 29th National
School Board Association letter.
One of the things, I find that perplexing and quite
troubling, this came in--it was sent on September 29th. I
believe that was a Wednesday. The following Monday, just days
later, just barely over a weekend, you responded with your memo
relying on the NSBA memo.
I submit, as a Member of the Judiciary Committee with
oversight responsibility over your Department, I submit
requests for information all the time. It takes time. I
understand that. Sometimes it takes months to get a response
back. I'm always grateful when I do get a response back,
especially when it's a response that contains meaningful
information. I understand that people are busy, and they've got
a lot of stuff to comply with.
If one association can send one letter without any
independent research on your part, and within days, barely over
a weekend, get not just a response, but an action memo signed
by the Attorney General of the United States, I think that's
weird. I think that makes me really uncomfortable, especially
when the National School Board Association, as I understand it,
or those associated with it, had publicly stated that they'd
been coordinating with officials at the White House on this for
weeks. It doesn't feel right. Doesn't seem right to me.
Last week, two of our counterparts on our House counterpart
Judiciary Committee asked you a little bit about the number of
people entering the United States illegally. About 1.3 million
have entered the United States illegally this year. That's a
lot. That's a lot of people. Of those 1.3 million, I'm quite
confident based on my own past experience as a Federal
prosecutor, I'm quite confident that some non-insignificant
portion of those will have previously been deported. As you
know, under 8 U.S.C. Sec. 1326, that is a felony Federal
offense, illegal reentry after previous deportation.
Since they've asked you about that, have you had a chance
to identify how many prosecutions have been brought for illegal
reentry this year? I'd be curious about that. I'd also be
curious as to whether there's anything analogous to your
October 4th memo. Is there anything calling out concerns that
you've got over illegal reentry?
Attorney General Garland. On that question, the 1.3 million
are arrests I think made by CBP. They are referred. CBP, the
Customs and Border Patrol, makes a decision about whether to
put those people into removal proceedings or to refer them to
the Justice Department for prosecution.
We have this year charged thousands of cases, thousands of
criminal cases, with respective violations of the Immigration
laws with respect to crossing of borders. I don't have the
exact number. We can get you that exact number, but the number
is in the thousands.
Senator Lee. My time is expired. I express the concern
because when the Department becomes focused on things that are
not part of its business, namely harassing, threatening,
intimidating moms and dads in America, on chilling their
ability to express their concerns to their neighbors, their
friends, and those who represent them on a school board, they
sometimes lose focus on the things that only the Federal
Government can do, like controlling our border from the
dangerous effects of illegal immigration generally, and illegal
reentry in particular. Thank you.
Chair Durbin. I take it Senator Cruz and Cotton are seeking
3-minute rounds? Is that correct? All right. Senator Booker, as
well. Senator Booker.
Senator Booker. The October 4th memo reads, ``In recent
months, there's been a disturbing spike in harassment,
intimidation, and threats of violence against school
administrators, board members, teachers, and staff, who
participate in the vital work of running our Nation's public
schools.'' Is that true?
Attorney General Garland. Yes, sir.
Senator Booker. I mean, it is true.
Attorney General Garland. It is true. I'm----
Senator Booker. I have a list of very disturbing incidents.
In Texas, a parent physically assaulted a teacher. August 18th,
2021. In Pennsylvania, a person posted threats on social media
which required police to station outside of a school district,
law enforcement investigating the person. I could keep going.
Ohio, a school board member was threatening letter that began
with we are coming from you. Domestic terrorism in the United
States, sir, has it been more from overseas, radical terrorists
since 9/11, or more from homegrown terrorists, most of them
being right-wing extremists? Which has been greater since 9/11?
Attorney General Garland. I'm going to be careful about
that. The threats that we face with respect to terrorism, none
of those descriptions have to do with terrorism. The threats
that we face in the United States come both from foreign
terrorists and----
Senator Booker. A church in South Carolina. A synagogue in
Pennsylvania. A school, Parkland. A school, Newtown. Has there
been threats and violence against schools in the United States
of America?
Attorney General Garland. There have been, yes.
Senator Booker. Coming from what types of groups?
Attorney General Garland. They come from domestic groups.
Senator Booker. From domestic groups.
Attorney General Garland. Yes.
Senator Booker. Has there been a long, pages long list of
what my staff could grab, been threats and violence against
school officials in the United States of America in the last
year?
Attorney General Garland. I obviously haven't seen the
list, but it accords with my recollections, but----
Senator Booker. Let me accord your recollection with the
letter that I've heard so much about that I pulled it to read
it. You say literally, threats--excuse me--spirited debate
about policy matters is protected under the Constitution. I'm
quoting one of my colleagues today. Does that sound like
harassing and intimidating moms and dads? You affirm at the top
of your letter that spirited debate is allowed, while spirited
debate about policy matters is protected under the
Constitution. That protection does not extend to threats and to
violence that we have been watching on our TV screens,
intimidating people, threatening to hurt them, taking physical
action.
You know what? You did not call for the DOJ and the FBI to
monitor school board meetings, did you?
Attorney General Garland. No, I did not.
Senator Booker. You did not call for anyone to invoke the
Patriot Act, did you?
Attorney General Garland. No, I did not.
Senator Booker. Sir, what you called is for the DOJ to
convene meetings to discuss strategies for addressing those
threats.
Attorney General Garland. That's correct.
Senator Booker. Is that intimidating moms and dads going to
school board meetings?
Attorney General Garland. I can't see how that can be
interpreted as----
Senator Booker. Sir, I know something about law enforcement
intimidation. It stems from growing up as a Black man in
America. I know what it feels like to be pulled over, to be
accused of stealing things, to every time I drive over the
George Washington Bridge as a teenager, to know I had to put
extra time because I was being pulled over by law enforcement.
If someone's to read the actual letter, you are literally
saying as the leader of the highest law enforcement office in
the land that you protect spirited debate. That you think
though, given the climate of school violence in America--I've
met with victims from Parkland.
Mr. President, I'm sorry. I have watched Republican after
Republican go over time, and I know you're gently banging that
gavel, but I've watched all today, my colleagues violate what
you said at the beginning was a strict time limit. I would ask
you to afford me two more minutes.
Chair Durbin. Is there objection? No objection.
Senator Booker. Have you met with Parkland survivors?
Attorney General Garland. I met with survivors at the White
House.
Senator Booker. Yes or no?
Attorney General Garland. I believe they----
Senator Booker. You've met with survivors of school
violence. Have you----
Attorney General Garland. I think I met with the Parkland
families.
Senator Booker. Yes. Do you have a responsibility--in a
climate of threats and violence taking place at schools, do you
have a responsibility to convene strategy meetings to try to
make sure we do not have eruptions of violence in a country? Is
that a responsibility of the Federal Government?
Attorney General Garland. Yes, our job is to protect
Americans.
Senator Booker. Did you specifically say anything in this
election--letter that can be seen as harassing moms and dads
and parents, or did you explicitly say that the Constitution
protects spirited debate?
Attorney General Garland. I specifically said the
Constitution protects spirited debate, and I don't believe
there's anything that's in this letter that could be read to
intimidate mothers and fathers.
Senator Booker. I'm not talking about the outrage machines
that seem to fuel our politics on both sides. I'm talking about
the actual letter here, sir that you wrote. You're a
goodhearted person. Is there anything in this letter that could
specifically lead a goodhearted parent who is against mask
mandates, who somehow believes that the teaching of racial
discrimination is repugnant to them, is there anything in this
letter that would prevent them from going and speaking to it
and yelling and being upset and letting their elected officials
know what they really believe? Is there anything in the actual
print of this letter that could be seen to lead that type of
intimidation?
Attorney General Garland. No, Senator. All of those things
are protected by the Constitution.
Senator Booker. Will you say that one more time?
Attorney General Garland. All of those things are protected
by the Constitution.
Senator Booker. I hope that you will do your law
enforcement work. There's too much violence in this country.
There's been too many domestic terrorist attacks. I don't want
to have the next hearing here be about some incident. I hope
that you continue to convene your strategy sessions, to protect
parents and children and school officials from any kind of the
heinous violence that we have seen way too much of in this
country, and that we all bear a responsibility for stopping.
Thank you, Mr. Chairman, for the allowance of the extra
time.
Chair Durbin. Thank you, Senator. Senator Cruz.
Senator Cruz. We talked just a minute ago about the
difference between law and politics. We heard some impassioned
political speeches, but also a question that just was asked by
my friend from New Jersey. Is there anything in this memo to
tell a parent that they're being targeted for harassment and
intimidation?
I would note that the letter from the school boards cited
20 instances, 15 of which were nonviolent. The letter from the
school board described them as domestic terrorism. Within days,
the Department of Justice snapped to the commands of the
special interest and issued a memo, a directive to the
Department of Justice, and a directive to the FBI. This is
again where law matters. The opening sentence describes a
disturbing spike in harassment, intimidation, and threats of
violence.
You spent a long time as a judge. When you have three
things listed, am I correct that anyone interpreting that,
reading it, would conclude that harassment and intimidation are
something different than threats of violence given that you
listed each of the three out separately? Is that consistent
with the canons of construction?
Attorney General Garland. The memorandum is addressed to
professional prosecutors----
Senator Cruz. I asked you a question, not who it was
addressed to.
Chair Durbin. Senator, at least let him respond.
Senator Cruz. No, not when he answers a non sequitur. If he
wants to answer----
Chair Durbin. He may respond any way----
Senator Cruz. Okay. You're taking my time now. This is not
coming out of my time. When I ask a question, he could answer.
Chair Durbin. Listen. We've given you more time than any
other Senator.
Senator Cruz. Mr. Chairman, when I ask a question----
Chair Durbin. Listen. All I'm asking is allow him to
respond.
Senator Cruz. Mr. Chairman, when I ask a question, he can
answer the question, but he's proceeding to ask a total non
sequitur. I asked about the canons of construction on the----
Chair Durbin. Please let him respond.
Senator Cruz. I'll ask the question again. The opening line
of the memo specifies harassment, intimidation, and threats of
violence. Is it correct under the ordinary canons of
construction that a legal reader would understand that
harassment and intimidation means something different from
threats of violence? Is that correct?
Attorney General Garland. A legal reader would know
Virginia v. Black, the Supreme Court definition of
intimidation, and a legal reader would know 18 U.S.C. Sec.
2261(a), the definition of harassment.
Senator Cruz. Would a parent?
Attorney General Garland. This was not addressed to
parents.
Senator Cruz. You know parents read it. You're the Attorney
General of the United States. You said you can't think of
anything harassing. You directed the G-men, the FBI to go after
parents. All right. Let's move on to a different topic.
We've sadly seen that you're willing to use the enforcement
power of the Department of Justice to target those who have
political views different than you, even if it's a mom at a PTA
meeting. Let's try the other side. Are you willing to enforce
the law fairly against people who are political allies of the
President?
At a Senate hearing in May, Dr. Fauci said, quote ``The NIH
has not ever and does not now fund gain-of-function research in
the Wuhan Institute of Virology.'' That was under oath, under
testimony.
On October 20th, the NIH Principal Deputy Director in
writing directly contradicted it. Those two statements cannot
be true. As you know, Section 1001 of Title 18 makes it a
Federal crime to knowingly make false statements to Congress.
As the Department of Justice investigating Dr. Fauci for
lying to Congress, and will you appoint a special prosecutor to
do so?
Attorney General Garland. I'm going to say again, the
memorandum that I issued is not partisan in any way. It has
nothing to do with what I agree with or I don't agree with. I
don't care whether the threats of violence come from the left
or the right. With respect----
Senator Cruz. Could you answer the question I asked?
Attorney General Garland [continuing]. To the second
question, we don't comment on criminal investigations or other
investigations if----
Senator Cruz. Amazingly, when it's the political enemies of
the administration, you comment loudly in a memo. Let me ask
one other question.
Attorney General Garland. They're not asking--you weren't--
--
Senator Cruz. President Biden recently said in a national
town hall that police officers who decline to get vaccinated
should be fired. Do you agree with President Biden on that?
Attorney General Garland. I think that all police--look. I
stood on the stage at the Mall where the 700 and some police
officer died this year were commemorated.
Senator Cruz. Let me try again. Do you agree with the
President? It's a yes or no. You've asked questions as a judge.
You know how to get a yes or no. Do you agree with the
President, yes or no?
Attorney General Garland. A large percentage of the law
officers who died this year died from COVID-19.
Senator Cruz. Do you agree with President Biden that police
officers who decline to get vaccinated should be fired, yes or
no?
Attorney General Garland. If they had been vaccinated, they
wouldn't have died.
Senator Cruz. Is that a yes, you do agree with the
President?
Attorney General Garland. Not one police officer----
Senator Cruz. In Chicago, a third of the police officers
did not file their vaccination status. Do you think Chicago
should fire a third of its police officers when murder rates
and crime rates are skyrocketing?
Attorney General Garland. This is a determination that the
city of Chicago will have to make.
Senator Cruz. Do you agree with the President? The
President said yes. Do you agree with him? You are the chief
law enforcement officer of the United States. Do you agree with
Joe Biden saying fire police officers despite skyrocketing
crime rates?
Attorney General Garland. That is a question--that is one
of State law there and will have to be decided by the State.
Senator Cruz. You have no view on whether we should fire
cops?
Chair Durbin. Senator, your time is expired.
Senator Cruz. You used 2 minutes of it.
Chair Durbin. No, I certainly did not. Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman, and thank you
again for being here, Mr. Attorney General.
I'm going to shift topics to an issue that I know you're
familiar with, the 9/11 families and the State secrets
privilege. I want to just say that I was encouraged and pleased
when President Biden issued an executive order requiring the
Department of Justice to complete a review of documents sought
by those 9/11 survivors. As you well know, they are in court
now taking advantage of JASTA, the overwhelmingly approved
measure that gives our Federal courts jurisdiction over their
claims for the harm they suffered when their loved ones were
killed during the 9/11 attack.
I was glad to see that the FBI has released at least one
document on the 20th anniversary of the 9/11 deaths. I still am
focused on the State secrets privilege, the invocation of it in
past years before this administration, the overuse of it. In
fact, the Trump Justice Department failed to provide any
meaningful justification for withholding these documents from
the 9/11 families. I think we see now that there was no
justification.
I know the Department's review is ongoing, and that you
will continue to disclose I hope as much information as
possible, as swiftly as possible.
Just to address the Department's use of the privilege more
broadly, the memo requires the Department of Justice to provide
periodic reports to Congress identifying the cases where the
privilege is invoked and explaining the basis for invoking it.
I sent a letter earlier this month to you about this reporting
requirement because this Committee has received only two
reports, in 2011 and 2015, and in the 6-years since, the
Department of Justice has failed to provide such reports.
Just to come to the point, I am respectfully asking for a
commitment that you will provide these periodic reports to
Congress and review the Department's policies with respect to
its invoking the State secrets privilege so as to comply with
the 2009 memo. I may have gone too quickly over the various
actions of the Department, but I'm referring to the 2009 memo
which requires those periodic reports. In the 8 seconds that I
have left and----
Attorney General Garland. Yes. The answer to both questions
is yes. We are currently reviewing that memo, and if anything,
we will strengthen it. We do intend to make periodic reports,
and it is not a periodic report to have not made a response
since 2015, I assure you. We intend to do that, yes.
Senator Blumenthal. Thank you very much.
Chair Durbin. Thank you, Senator Blumenthal. Senator
Cotton.
Senator Cotton. Judge, I want to return to our exchange
this morning. As I've reflected on it, you made a shocking
admission. You issued this memo siccing the feds on parents at
school boards on Monday, October 4th. You acknowledge that
there was no effort in the Department of Justice, no initiative
to draft this memo or create these task forces before
Wednesday, September 29th, when the National School Board
Association issued that letter. Is that correct?
Attorney General Garland. I don't know. All I know is that
the first time I started working on this was after receiving
the letter. That's all I----
Senator Cotton. From your standpoint, you are not aware of
any effort in the Department of Justice before that letter was
sent on September 29th.
Attorney General Garland. I think it's fair to say, as
you're suggesting that this letter and what the other public
notices of violence against school board members and teachers
are what form the basis for this memorandum. Yes.
Senator Cotton. This memo is dated October 4th with your
signature on it. Did you sign it on October 4th?
Attorney General Garland. I did.
Senator Cotton. Four intervening days, two of which were
weekend days.
Attorney General Garland. Yes.
Senator Cotton. I'd say that sets a land speed record for
the Federal Government.
Attorney General Garland. When we----
Senator Cotton. Chuck Grassley pointed out that you have
not responded to letters of his that have been outstanding for
months. How is it the Department of Justice was able to move so
rapidly on a single letter from a special interest group that
has now repudiated that letter, said it regrets sending the
letter, and apologize to its members for sending the letter?
How did your Department move so fast on this matter?
Attorney General Garland. When an organization that
represents thousands of school board members----
Senator Cotton. I would say they purport to represent
thousands, because State school boards across the country have
been repudiating them and trying to withdraw their membership.
That's why the National School Board Association withdrew its
own letter. Who brought this to your attention?
Attorney General Garland. May I answer the question?
Senator Cotton. I'm asking you a question now. Who brought
this to your attention?
Attorney General Garland. You asked me a question. May I
answer the question? The question is why speed. The answer is
when we get reports of violence and threats of violence, we
need to act very swiftly. I would have hated it to have gotten
this letter, and then acts of violence occurred in the interim
before we were able to act.
Senator Cotton. Okay, Judge. There were----
Attorney General Garland. The only act here is assessing
the circumstances. That's all there is here. We can't wait
until somebody dies. That's why we did this.
Senator Cotton. Okay. You keep citing media reports. There
were 24 incidents in that letter. As you've heard today, almost
all of them were nonviolent. They weren't all threats of
violence.
Attorney General Garland. Those are not the media reports I
was referring to.
Senator Cotton. You said earlier it was news reports. Okay.
What other reports that you saw about potential violence at
school boards were you basing this memo on?
Attorney General Garland. I don't recall them specifically,
but I have now again seen since that time people saying that
they're repeating what they have said before, that they were
threatened----
Senator Cotton. That's all post-talk. It's all after the
fact. It doesn't go near your frame of mind on October 4th. Who
brought this to you? Who brought this memo to you and asked you
to sign it?
Attorney General Garland. Nobody brought the memo to me and
asked me to sign it.
Senator Cotton. Someone had to bring it to your attention.
Hey, Judge. We're about to sic the feds on parents.
Attorney General Garland. I'm sorry. No one said we're
about to sic the feds on parents. That's not an accurate
description.
Senator Cotton. Was this an initiative of Lisa Monaco?
Attorney General Garland. This memorandum went through the
normal processes within the Department, and I worked on it
myself and I signed it.
Senator Cotton. Someone is a proponent. Someone was a
proponent. I bet you didn't write the first draft of this.
Where did it come from? Did it come from Lisa Monaco?
Attorney General Garland. I didn't write the first draft,
but I did work on this memorandum, and it represents my views
and it represents my reading of the materials.
Senator Cotton. Did it come from Vanita Gupta's office?
Attorney General Garland. Look. I'm not going to discuss--
--
Senator Cotton. Is this Matt Klapper's initiative?
Attorney General Garland. I'm not going to discuss the
internal workings of the Justice Department here. This
memorandum reflects my view, and I stand behind it, and I
continue to stand behind it.
Senator Cotton. Are you aware--are you aware of
conversations between members of your Department of Justice and
the White House leading up to that letter from the School Board
Association?
Attorney General Garland. I am sure--there were no
conversations with me. I'm sure there were conversations. It's
perfectly appropriate when the White House receives a letter
calling for law enforcement response across the board, not with
respect to a specific case, for the White House to have
conversations with the Justice Department.
Senator Cotton. Are you aware of conversations between your
Department of Justice officials and White House officials and
the members of the School Board Association all cooperating
together, which is why you were able to move in 4 days, Judge?
Four days, two of which were weekends.
Attorney General Garland. As I said, I am sure there were
conversations with the White House. I have no idea whether
there were conversations with the School Board Association.
Senator Cotton. I bet we're going to find out there were,
and if it doesn't happen now, it'll happen in 15 months when
Republicans are in charge again.
Attorney General Garland. There's nothing wrong with there
being such conversations. Let me be clear again. This is not a
request to investigate any particular person or prosecute any
particular person. In the same way you ask me to worry about
violence in the streets, it's perfectly appropriate for the
White House to urge me to worry about violence in the streets.
Same way they're perfectly appropriate for the White House or
any other organization to urge me to worry about election
threats.
There's nothing that I know--knew about this organization
to suggest that it is any way partisan. It's a National School
Board Association. I certainly never in my mind viewed that as
a partisan organization.
Senator Cotton. Now that they've repudiated their letter,
why won't you just say you made a mistake? Why won't you say
you made a mistake and you relied on bad information?
Attorney General Garland. Because they didn't repudiate
their letter. They repudiated language in the letter which I
did not adopt and don't agree with. Their concerns are about
safety in the schools and about violence, and this is a core
concern of the Justice Department. That's why.
Chair Durbin. Thank you. Senator Blackburn has asked for 3
minutes, and I will conclude with my own 3 minutes after that.
Senator Blackburn.
Senator Blackburn. Thank you, Mr. Chairman. Attorney
General Garland, you just told me that you don't think you ever
met Susan Hennessey. Did you hire Susan Hennessey?
Attorney General Garland. Look, I have signoff authority
for everybody, I suppose, in the Justice Department.
Senator Blackburn. I am not--have you had----
Attorney General Garland. That's the best I can answer with
respect to that. The question you were worried about, Senator,
and I understand, had to do with Durham. As I explained, she
has nothing to do with the Durham investigation.
Senator Blackburn. Okay. Were you unaware of her comments
before you hired her?
Attorney General Garland. Again that----
Senator Blackburn. You don't know. Okay.
Attorney General Garland. I hire 115,000 people in the
Justice Department. I don't know.
Senator Blackburn. I'm fully aware of that. It's amazing to
us that those 115,000 people can't investigate things like
crime on the border, can't investigate crime on the streets.
You know, I'm going to return to this memo of October 4th.
The memorandum cites harassment, intimidation, and threats of
violence. What I'd like to know is who chose that language,
harassment, intimidation, and threats of violence? You've said
this reflected your views, but it's become apparent that you
did not write this memo yourself.
I would like to know who came up with that language. Was
that yours or was that submitted language?
Attorney General Garland. I don't know whether--let me put
it this way. This is language that law enforcement officers
are--very well understand. It is contained in the Federal
statute and in the Supreme Court opinion.
Senator Blackburn. Okay. In the House Judiciary Committee
last week, you said you were concerned only about true threats.
Are you going to revise your memorandum to make it clear that
you--this applies only to true threats of violence instead of
classifying parents in this country with domestic terrorists
such as Timothy McVeigh and Terry Nichols?
The other thing I would like to know, you said to me
earlier that your memo was based on the NSBA letter and the
news reports. You've said there was not a lot of independent
research done by you and your staff. If you would please submit
to us for the record the news reports that you're referencing
so that we will be able to have that as a frame of reference.
Also, we would love to know who actually did write that memo
and how they came up with the idea of calling parents domestic
terrorists.
One other thing I've got for you, do you agree with the
Supreme Court that the Second Amendment is a civil right? If
so, what is your Civil Rights Division doing to ensure it is
being protected?
Attorney General Garland. Just to back up on some of the
questions. The memo doesn't say anything about domestic
terrorism or calling parents domestic terrorists.
I do agree the Second Amendment is part of the Bill of
Rights and is therefore a civil right. The Civil Rights
Division has some generalized authorities, but it also has
specific statutory authorities. I don't know whether there is a
specific statutory authority with respect to the Second
Amendment that has been given by Congress to the Civil Rights
Division. I'm not aware of one. There may be, but I'm not aware
of it.
Senator Blackburn. Okay. We can depend on you and your
Department of Justice to stand in support of the Second
Amendment. Is that what you're saying, to defend it?
Attorney General Garland. Yes, of course. The Second
Amendment is part of the Bill of Rights.
Senator Blackburn. Okay. Thank you. That's what we would
like to know, and I'll look forward to the other submissions in
writing. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator. Mr. Attorney General,
thank you for your patience. You have been sitting in that
chair with a couple breaks for four and a half hours. Many of
these colleagues of mine have had ample opportunity to ask
questions, and then come back and ask some more, sometimes the
same questions.
I would just like to make this observation. I understand
completely why you issued that memo, and I wish my colleagues
would reflect for a single moment as to why that memo is
important, not just for school board members, but to send a
message across America that there's a line we're going to draw
when it comes to political expression. When you say words, when
you wave your arms, that's all protected. When you threaten
someone with violence or engage in acts of violence that is
never going to be protected and shouldn't be.
It isn't that long ago that Gabby Giffords, one of our
colleagues in the House, was gunned down in Arizona. Her
husband is now serving as our colleague in the U.S. Senate. I
don't know the political bent of the person who shot her. It's
basically irrelevant. We should never countenance that as
adequate or proper political expression.
Steve Scalise, the Republican Congressman from Louisiana,
was gunned down on a baseball practice field by someone from my
State who I believe was identified with the left in politics.
It doesn't make any difference. It was an outrage that that
good man has suffered as much as he has because of it.
We have the story in Great Britain, David Amess, who goes
to a town meeting and is stabbed to death in his constituency
in England. For goodness sakes, can't we, even if we disagree
on issues to a great degree, agree with the premise that anyone
who engages in violence or threats of violence has stepped over
the line whether they come from the right or the left?
I think that's what you were trying to say in your memo
about the school boards. Like you, I have never heard the
School Board Association identified as a great, strong special
interest group. I haven't seen that in the years I've been in
Congress. There are many great, strong special interest groups.
I would just say to you thank you for doing that. It was
the right thing to do. It has been mischaracterized and
distorted, not only today, but since then. I think we can prove
by our actions that we are not trying to stifle free speech,
but only saying to people we're going to draw a line.
I found it fascinating that at least one of the people who
was criticizing you today and talking about the situation on
January 6 was actually cheering the demonstrators on on January
6, and there's ample evidence of that. I would think we've got
to draw a line that accepts in this civilized society, we are
going to be respectful of one another, even if we disagree
politically.
I thank you for your testimony. Would you like to have a
closing comment?
Attorney General Garland. No. Thank you, Senator. I
appreciate your remarks though. Thank you.
Chair Durbin. Thank you very much. The Committee stands
adjourned.
[Whereupon, at 2:30 p.m., the hearing was adjourned.]
[Additional material submitted to the record follows.]
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