[Senate Hearing 118-32]
[From the U.S. Government Publishing Office]
S. Hrg. 118-32
OVERSIGHT OF THE DEPARTMENT OF JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
MARCH 1, 2023
__________
Serial No. J-118-5
__________
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
52-249 WASHINGTON : 2025
COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina,
SHELDON WHITEHOUSE, Rhode Island Ranking Member
AMY KLOBUCHAR, Minnesota CHARLES E. GRASSLEY, Iowa
CHRISTOPHER A. COONS, Delaware JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut MICHAEL S. LEE, Utah
MAZIE K. HIRONO, Hawaii TED CRUZ, Texas
CORY A. BOOKER, New Jersey JOSH HAWLEY, Missouri
ALEX PADILLA, California TOM COTTON, Arkansas
JON OSSOFF, Georgia JOHN KENNEDY, Louisiana
PETER WELCH, Vermont THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Chief Counsel and Staff Director
Katherine Nikas, Republican Chief Counsel and Staff Director
C O N T E N T S
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OPENING STATEMENTS
Page
Durbin, Hon. Richard J........................................... 1
Graham, Hon. Lindsey O........................................... 3
WITNESS
Garland, Hon. Merrick B.......................................... 4
Prepared statement........................................... 78
Responses to written questions............................... 98
APPENDIX
Items submitted for the record................................... 77
OVERSIGHT OF THE DEPARTMENT OF JUSTICE
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WEDNESDAY, MARCH 1, 2023
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice at 10 a.m., in Room
216, Hart Senate Office Building, Hon. Richard J. Durbin, Chair
of the Committee, presiding.
Present: Senators Durbin [presiding], Whitehouse,
Klobuchar, Coons, Blumenthal, Hirono, Booker, Padilla, Ossoff,
Welch, Graham, Grassley, Cornyn, Lee, Cruz, Hawley, Cotton,
Kennedy, Tillis, and Blackburn.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. This meeting of the Senate Judiciary
Committee will come to order.
Today marks the Senate Judiciary Committee's first
oversight hearing of the 118th Congress. Last Congress, we held
more than a dozen oversight hearings and honored the
Committee's historic constitutional responsibility to provide
oversight to the agencies of our Government.
It is this responsibility under Article I of the
Constitution that serves as a check and balance on the
executive branch, whether the President happens to be
Republican or Democrat.
Attorney General Garland, welcome. This is the third time
you've appeared before this Committee. You have many pressing
responsibilities. I should say, as Attorney General, you have
many pressing responsibilities, and I appreciate your taking
the time to be here today. There are so many subjects under
your jurisdiction worthy of close examination, which I'll turn
to a few in a moment. But we shouldn't take for granted that we
now have a Department of Justice with a renewed dedication.
When you were sworn into office 2 years ago, the Department
was embroiled in scandal. You committed to restoring its
independence, and I believe you've kept your word. I expect
that we'll hear accusations today from some of my Republican
colleagues to the contrary, such as weaponization of the
Justice Department.
The reality is you have recommitted the Department to
serving the American people and not the personal interests of
any one political figure. You've taken the appropriate steps to
ensure that investigations are not overshadowed by politics.
You have not interfered with the investigation of the
President's son by the U.S. attorney for the District of
Delaware, a holdover who was appointed by President Trump.
You have not interfered with the special counsel
investigation initiated by Attorney General Barr into the
origin of the FBI investigation of the Trump campaign ties to
Russia.
And most recently, you've appointed two special counsels to
investigate any potential mishandling of classified documents
in the possession of former President Trump or President Biden.
Unfortunately, too many of my colleagues have turned a
blind eye to the actual weaponization of the Justice Department
during previous administrations.
Take one example. President Trump and his allies attempted
to co-opt the Department into overturning the results of the
2020 election, a relentless campaign that this Committee
exhaustively documented in ``Subverting Justice,'' a 394-page
report.
But your actions in the last 2 years should reassure the
American people that the Justice Department should not and does
not operate as the servant of any President.
The Justice Department has important constitutional
responsibilities. It must protect the civil rights of the
vulnerable. It must respond to threats to our Nation, both
domestic and international. It must hold accountable those who
violate the laws passed by Congress. We have discussed before,
and I will certainly hear again today, some issues of critical
importance to the American people.
More than 6,800--6,800 Americans have died from gunfire in
the first 2 months of this year. There have been at least 94
mass shootings, more than one every single day this year, in
America. I look forward to hearing how the Department is using
new tools that Congress approved in the Bipartisan Safer
Communities Act to quell this violence.
In March 2021, FBI Director Wray testified under oath
before this Committee that the threat of domestic terrorism is
metastasizing throughout this country. I look forward to
hearing your response to that extremist threat.
We'll discuss the importance of full implementation of the
bipartisan First Step Act, which is showing meaningful progress
in responsibly reducing recidivism and making our criminal
justice system fairer.
And we'll discuss the importance of preserving America's
civil rights and protecting them from attacks on their bodily
autonomy, especially after the Supreme Court Dobbs decision.
The sunset of Section 702 of the Foreign Intelligence
Surveillance Act this year provides an opportunity to implement
much-needed reforms to keep America both safe and free, and the
Department must continue to hold steadfast to the principles of
equity and access, despite resistance from those who are
threatened by an even playing field.
As more citizens face greater impediments to exercising
their constitutional right to vote, and then there's an
increase in incidents of hate violence, the Department must
defend America's bedrock values.
At this point, I turn to my colleague, and the Ranking
Member on the Senate Judiciary Committee, Senator Graham.
OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman. Welcome, Mr.
Attorney General. Appreciate you coming to the Committee. And
thank you, Mr. Chairman, for having the hearing.
So, here's sort of the other side of the story. When you
ask Americans, ``Are we on the right track as a nation? '',
about 70 percent of them say no. Now, why?
I think there's a feeling in this country that we're losing
control of our streets, that crime is increasing, and the world
is a very dangerous place, and people don't feel safe anymore.
You talk about the number of deaths from gun violence,
certainly something we should be concerned about.
But let me tell you something we all should be concerned
about. Rebecca Kiessling, a mother who testified yesterday,
lost two sons to fentanyl overdose. They were buying, I think,
a Percocet pill, and it was laced with fentanyl, and they died
from taking one pill. Both of them. She said, as I quote,
``This is a war. Act like it. Do something.''
So, 106,000 people died from drug overdoses, 70,000 from
fentanyl last year, and it's getting worse. The leading cause
of death for Americans age 18 to 45 is death by fentanyl
poisoning. What are we doing? What is that something? So, I
hope we'll recommit ourselves, Mr. Chairman, at this hearing,
to do something, to act like we're at war, because we are.
Foreign terrorist organization designation for the
Taliban--that's a good thing. Other groups--how about making
drug cartels in Mexico and other places foreign terrorist
organizations under U.S. law so we can go deeper and prosecute
those who help these people poison America?
So, the bottom line, we're adrift as a nation. We're not
taking the crime problem as seriously as we should. The world
is on fire.
[Posters are displayed.]
Senator Graham. We say that Putin's engaged in crimes
against humanity. I agree with that statement. But we're not
giving jets to the Ukrainians to defend themselves against the
crime. So, we've got to up our game.
And I hope, by this hearing, we will have a recommitment to
convince the American people that we're going to keep you safe,
that we're going to have policies to deal with the poisoning of
America from fentanyl, that we're going to hold Mexico and
other countries accountable, that most of this stuff comes from
China, and enough is enough. We're going after those who are
killing our kids from fentanyl.
Gitmo. This administration let two detainees out of Gitmo.
There's 30-something left. The recidivism rate is about 25, 34
percent, depending on who you ask. Now is not the time, after
Afghanistan, to be letting people who've been in jail for 20
years, because they're so dangerous, out of jail.
And I hope this administration will not empty Gitmo.
Because the worst thing we could do right now is let people go
who have been involved in terrorist activities, who are still a
danger or enemy combatants under international law, because of
the passage of time.
So, Mr. Chairman, we all want to work with you on this
side, but there is no strategy that I can discern about how to
deal with the poisoning of Americans through fentanyl.
Most Americans are worried about the rise in crime, and we
need to reassure them we get it, that we're going to do better.
That Schedule I designation for fentanyl expires at the end of
the year. Mr. Chairman, I know you don't want that to happen.
Senator Cotton's been ahead of this before any of us.
So, if you put arsenic in a pill, knowing somebody's going
to take it, why aren't you charged with--you would be charged
with murder. If you lace a pill with fentanyl, which is
probably more lethal than arsenic, why aren't you charged with
murder?
We're going to have to deter those who are killing young
people in America.
We're going to have to put countries on notice that you're
with us or you're against us when it comes to this scourge of
fentanyl.
We're going to have to control our border.
We're going to have to come up with a rational immigration
policy.
We're going to have to change our asylum laws, because
everybody in the world believes if they get one foot in
America, they never leave.
On many fronts, law and order has broken down here at home,
and the world is in chaos. China is watching what we do in
Ukraine. And the question for all of us, are we doing enough to
combat the threats that we're all living with? And I would say
we're woefully inadequate in dealing with the threats that
exist against America at home and abroad. And maybe this
Committee, in a bipartisan fashion, can do something about it.
Thank you.
Chair Durbin. Thank you, Senator Graham.
Let me lay out the mechanics of today's hearing. After I
swear in the Attorney General, he'll have 5 minutes to provide
an opening statement. We have his written statement for the
record.
There will be a first round of questions, and each Senator
will have 7 minutes. Please try to remain within your allotted
time.
Following the first round of questions, if there's an
interest in a second round, Senators will have an additional 3
minutes each.
I now would ask the Attorney General to please stand and
raise his right hand.
[Witness is sworn in.]
Chair Durbin. The record reflects that the Attorney General
answered in the affirmative, and now you're invited to proceed
with your opening statement.
STATEMENT OF HON. MERRICK B. GARLAND, ATTORNEY GENERAL, U.S.
DEPARTMENT OF JUSTICE, WASHINGTON, DC
Attorney General Garland. Good morning, Chair Durbin,
Ranking Member Graham, and distinguished Members--got it. Thank
you. Appreciate it. Good morning, Chair Durbin, Ranking Member
Graham, and distinguished Members of this Committee.
Every day, the 115,000 employees of the Justice Department
work tirelessly to fulfill our mission to uphold the rule of
law, to keep our country safe, and to protect civil rights.
Every day, our FBI, ATF, and DEA agents and our deputy U.S.
marshals put their lives on the line to disrupt threats and
respond to crises.
Every day, Department employees counter complex threats to
our national security. They fiercely protect the civil rights
of our citizens; they pursue accountability for environmental
harms; they prosecute crimes that victimize workers, consumers,
and taxpayers; and they defend our country's democratic
institutions.
And every day, in everything they do, the employees of the
Justice Department adhere to and uphold the rule of law that is
the foundation of our system of government.
Thank you for an opportunity to discuss our work.
First, upholding the rule of law. When I began my tenure as
Attorney General, I said it would be my mission to reaffirm the
norms that have guided the Justice Department for nearly 50
years. I did so because those norms matter now, more than ever,
to our democracy.
The health of our democracy requires that the Justice
Department treat like cases alike and that we apply the law in
a way that respects the Constitution. It requires that, as much
as possible, we speak through our work and our filings in court
so that we do not jeopardize the viability of our
investigations and the civil liberties of our citizens. And the
survival of our democracy requires that we stand firmly against
attempts to undermine the rule of law, both at home and abroad.
I am proud of the work that the Department has done on each
of these fronts. We are strengthening the norms that protect
the Department's independence and integrity. We are securing
convictions for a wide range of criminal conduct related to the
January 6th attack on the Capitol.
We are disrupting, investigating, and prosecuting violence
and threats of violence, targeting those who serve the public.
And we are working closer than ever with our Ukrainian partners
in defense of democracy, justice, and the rule of law. We will
continue to do so for as long as it takes.
Second, keeping our country safe. The Justice Department is
using every resource at our disposal to keep our country safe.
We are working to counter, disrupt, and prosecute threats posed
by nation-states, terrorist groups, radicalized individuals,
and cybercriminals.
And, together with our partners across the country, we are
continuing to combat the rise in violent crime that began in
2020. All 94 of our U.S. Attorney's Offices are working
alongside their State and local partners to pursue district-
specific violent crime reduction strategies.
The Department's grant-making components are providing
financial assistance to local law enforcement agencies. At the
same time, they are supporting community-led violence
intervention efforts. And our law enforcement components are
working with State, local, Tribal, and territorial counterparts
to apprehend the most dangerous fugitives and seize illegal
drugs and illegal guns. For example, last year, DEA and its
partners seized enough fentanyl-laced pills and powder to kill
every single American.
We are also aggressively prosecuting the crimes that
inflict economic harm on the American people. We are
prioritizing the prosecution of schemes that impact older
Americans and vulnerable populations, as well as schemes
involving pandemic and procurement fraud.
In our corporate criminal enforcement, we are prioritizing
and securing individual accountability, and we are vigorously
enforcing our antitrust laws. Our enforcement actions have
already resulted in the blocking or abandonment of mergers that
would have stifled competition and harmed consumers.
Third, protecting civil rights. Protecting civil rights was
a founding purpose of the Justice Department, and it remains an
urgent priority. The Department's storied Civil Rights Division
has been at the forefront of efforts to protect the right to
vote, ensure constitutional policing, and enforce Federal
statutes prohibiting discrimination in all of its forms.
But now, protecting civil rights is also the responsibility
of every Justice Department employee, every single day.
We are working across components to combat hate crimes and
improve hate crimes reporting.
In the wake of the Supreme Court's decision to overturn Roe
and Casey, the Department has pulled together to protect
reproductive freedom under Federal law.
And the Department recognizes that communities of color,
indigenous communities, and low-income communities often bear
the brunt of harm caused by environmental crime, pollution, and
climate change, so we are prioritizing cases that will have the
greatest impact on the communities most burdened by those
harms.
I am proud of the work of the Department's employees, the
work they have done to uphold the rule of law, to keep our
country safe, and to protect civil rights. The Department's
career workforce has demonstrated extraordinary resilience
after years of unprecedented challenges. They have conducted
themselves with the utmost integrity, without regard to any
partisan or other inappropriate influences. And they have done
their work with a singular commitment to the public we all
serve.
The employees of the Justice Department are dedicated,
skilled, and patriotic public servants. It is my honor to
represent them here today. Thank you for the opportunity to
testify. I look forward to your questions.
[The prepared statement of Attorney General Garland appears
as a submission for the record.]
Chair Durbin. Thanks, Attorney General. You grew up in
Lincolnwood, Illinois, if I'm not mistaken, at least part of
your life?
Attorney General Garland. That's true.
Chair Durbin. That's not far from Highland Park, is it?
Attorney General Garland. That's also true.
Chair Durbin. And we know what happened last Fourth of July
when the people of Highland Park gathered for a Fourth of July
parade. A gunman went on the roof of a business downtown and
fired off 83 rounds into the crowd in 60 seconds.
Even the armed good guys, the policemen who were there
trying to protect the public, had trouble locating that person
and certainly, and sadly, could not have the time to respond to
what he had done until it was finished.
When he was finished, there was an 8-year-old, Cooper
Roberts, who will be paralyzed for life. There was a young man,
2-year-old Aiden McCarthy, who became an orphan because both of
his parents were killed. Seven total lives were lost, 50 people
were injured.
It is hard for me to imagine that some disciple of
originalism believes that our Second Amendment envisioned what
happened in Highland Park. To think that there is a weapon out
there, a military-style weapon, and the rounds and clips that
are available to fire off multiple rounds into innocent crowds,
just, to me, makes little or no sense when you read the basic
language of the Second Amendment.
And so Congress did something, and I want to credit Senator
Cornyn for being a participant in this effort--a leader in this
effort, with Senator Murphy of Connecticut, to try to pass a
bill to make it better.
The Bipartisan Safer Communities Act addressed issues of
straw purchasing, which we have discussed before--the terrible
death of Ella French, a Chicago policeman, because of the straw
purchase made in the State of Indiana--and this situation, with
the shootings of innocent individuals in Highland Park. I'd
like to ask you, what have you seen, if anything, that's
changed for the better since we passed our law?
Attorney General Garland. I think it's a very important
law, and I'm grateful to the Members who sponsored it and to
the overall Congress that passed it. It's done several things
for us.
First of all, it has, as you said, established a stand-
alone crime for straw purchasing and a stand-alone crime for
trafficking in illegal weapons. We have already----
Chair Durbin. Are these being prosecuted?
Attorney General Garland. Yes. In both cases, we have
already brought trafficking cases. I think we've already had
two gun trafficking cases and several straw purchasing cases as
a consequence of this law.
In addition, the law provided for enhanced background
checks for people under 21, and we have largely completed the
process of making those possible, so that juvenile records that
disclose prohibited conduct and make somebody a prohibited
possessor would now be identified. That's another thing we've
done.
The statute also provided funds under the Byrne program and
additional programs for violence intervention, and for helping
States deal with red flag laws so that people who have been
subject to a court order barring them from obtaining a gun, we
would be able to get those kind of systems provided. And we've
already given out grants in both of those areas.
Chair Durbin. Senator Graham basically challenged me, and I
accept the challenge, to show as much concern about the gun
deaths, show as much concern about fentanyl deaths in this
country, and I want to do that.
He noted, I believe--correct me if I'm wrong--that the
number one cause of death of people 18 to 45 is drug overdose.
I don't know if it's fentanyl, specifically, but drug overdose.
And I know that reality. But the number one cause of death to
children under the age of 18 is gun violence in America, too.
We can do both. We must do both.
So, let's address the fentanyl issue for a minute. We had a
hearing in this Committee 2 or 3 weeks ago which talked about
the social media platforms and what they are peddling to
Americans, particularly to our children across America. There
were mothers sitting near where you're sitting today who
brought color photographs of their children who died as a
result of their trafficking of information on social media.
And there's little or no responsibility accepted by these
platforms. Section 230 absolves them from civil liability when
they broadcast things which harm children, whether it's
bullying or harassment or something as basic as this choke
challenge, which unfortunately claims the lives of children, as
well.
I think there was a general consensus on this Committee,
which is saying something, that we need to do something about
the social media platforms.
And I coincidentally had a meeting just a day or two later
with Anne Wigham from the Drug Enforcement Agency. She
described for me the sale on the internet and social media
platforms of phony drugs.
Senator Graham made the reference to a person who thought
they were buying Percocet and bought fentanyl and died as a
result of it. I asked her how common this was. She said, ``Very
common.''
And they--the sellers even have valet services where they
will physically deliver boxes of these phony drugs to people at
their homes, on their porches. This is out of hand. Do you
believe that we need to do more to regulate and control the use
of social media platforms that are currently exploiting
families and children across America?
Attorney General Garland. Senator, I agree with both you
and Senator Graham with respect to how horrible this situation
is. I have personally met with the families of children and
teenagers and young adults and even the elderly who have taken
these pills, often thinking that they're taking Adderall or
Oxycodone or Percocet, a prescription drug, but when, in fact,
it is filled with fentanyl. And as the DEA administrator's
testimony demonstrated, 6 out of 10 of those pills are a fatal
dose.
The cartels that are creating these pills and that are
distributing them within the United States are the most horrid
individuals you can imagine. And unfortunately, they are doing
it on social media, advertising as if they are prescription
pills. So, the DEA has a program of going out to the social
media companies and urging them to advise DEA when they see
this and advising----
Chair Durbin. Ms. Wigham told me that when they approach
the social media and ask for the algorithms so that they can
get to the root cause of this death and destruction, these
social media platforms plead Section 230 and refuse. What do we
do?
Attorney General Garland. Well, I think we do have to do
something to force them to provide information, to search their
own platforms for sales of illegal drugs. This is a----
Chair Durbin. I tell you, I mean, I don't want to put words
in your mouth, but I think Section 230 has become a suicide
pact. We have basically said to these companies, ``You are
absolved from liability. Make money.'' And they're at it, in
overtime, and deaths result from it, and we have a
responsibility.
I think the Committee really spoke to it. We may see it
differently, but on a bipartisan basis. And I've spoken to
Senator Graham, and I want to make sure that when we agree, it
also is publicized. We both feel very strongly that this
Committee needs to be a venue to take on this issue. I hope we
have your support and the support of the President when we do
that.
Attorney General Garland. You certainly have our support
with respect to finding a better way to get the social media
companies, whether it's civil or criminal, to take these kind
of things off their platforms, to search for them, to not use
algorithms that recommend them. I totally agree with that,
Senator.
Chair Durbin. Thank you. Senator Graham.
Senator Graham. Thank you. Again, welcome, Attorney
General. I'm going to do something maybe a bit different. I'm
going to try to find consensus where we can--see how far we go.
Do you agree that the Wagner organization associated with
Russia should be a foreign terrorist organization under U.S.
law?
Attorney General Garland. I think they are an organization
that's committing war crimes, an organization that's damaging
the United States. I think they've already been designated as a
transcon----
Senator Graham. Yes----
Attorney General Garland [continuing]. As a----
Senator Graham [continuing]. Criminal--yes, some----
Attorney General Garland. Yes, TCO. I'm trying to get the--
--
Senator Graham [continuing]. I want to go up a notch. Are
you okay with that?
Attorney General Garland. I understand this is a quest--the
way in which determinations are made with respect to terrorist
organizations come through the State Department. They have to
make determinations of what the consequence is for countries
that have them in them.
Senator Graham. Do you object to me trying to make them a
foreign terrorist organization----
Attorney General Garland. I think--I don't object----
Senator Graham. Thank you.
Attorney General Garland [continuing]. I think, though,
that I would defer in the end to the State Department----
Senator Graham. I've got you----
Attorney General Garland [continuing]. On this.
Senator Graham. Yes. Well, I bet we'll all come together on
that one.
Fentanyl. Fentanyl deaths are more than gun and accident
deaths, combined, in the United States. Did you know that?
Attorney General Garland. Yes, sir.
Senator Graham. I mean, this is--how would you describe the
fentanyl problem in America?
Attorney General Garland. It's a horrible epidemic----
Senator Graham. Okay.
Attorney General Garland [continuing]. But it's an epidemic
that's been unleashed on purpose by the Sinaloa and the New
Generation Jalisco cartels.
Senator Graham. Okay. Let's just stop and absorb that for a
moment. It's a horrible epidemic. It kills more people than car
wrecks and gun violence, combined. The question is, what are we
going to do about it? Under current law, fentanyl loses its
Schedule I status by the end of the year. You oppose that, I
assume?
Attorney General Garland. I certainly do. All fentanyl-
related----
Senator Graham. Okay.
Attorney General Garland [continuing]. Drugs should be
permanently on the schedule.
Senator Graham. Do you support mandatory minimums for
people dealing in fentanyl?
Attorney General Garland. I think we already have mandatory
minimums for people dealing----
Senator Graham. Do you think they should be increased?
Attorney General Garland. I think we have more than enough
ability now to attack this problem.
Senator Graham. Well, would you agree with me, whatever we
have is not working?
Attorney General Garland. Well, I----
Senator Graham. Whatever we're doing is not working.
Attorney General Garland. I agree with that because of the
number of deaths----
Senator Graham. Yes. So----
Attorney General Garland [continuing]. That you pointed
out, so the----
Senator Graham. So, just keep an open mind that what we've
got on the books is not working. If somebody gave a pill to
another person with arsenic or ricin, could they be charged
with murder? Because that will kill you.
Attorney General Garland. Absolutely.
Senator Graham. Okay. If somebody gave a candy-shaped pill
full of fentanyl, could they be charged with murder?
Attorney General Garland. Well, they can be charged with
drug trafficking leading to death. I don't think the statute
says murder----
Senator Graham. Okay.
Attorney General Garland [continuing]. But it does say--
specifically aims at that.
Senator Graham. Yes.
Attorney General Garland. We have brought prosecutions----
Senator Graham. Yes.
Attorney General Garland [continuing]. I know, having
discussed----
Senator Graham. So----
Attorney General Garland [continuing]. This with the U.S.
attorney in Colorado and the U.S. attorney in the Southern
District of New York.
Senator Graham. So, Senator Cotton's got a proposal to
dramatically increase the penalties associated with fentanyl.
I'd like to work with you and the Chairman, if we could, to
find a bipartisan solution to this problem, to create
deterrence that doesn't exist.
Mexican drug cartels. Should they be designated foreign
terrorist organizations under U.S. law?
Attorney General Garland. Yes, I think it's the same answer
I gave before. They are already designated in any number of
ways and sanctioned by the Treasury----
Senator Graham. Would you oppose some of us trying to make
them foreign terrorist organizations?
Attorney General Garland. I wouldn't oppose it, but again,
I want to point out there are diplomatic concerns. We need the
assistance of Mexico in this, and designating----
Senator Graham. Is Mexico helping us effectively with our
fentanyl problem?
Attorney General Garland. They are helping us, but they
could do much more. There's no question about that.
Senator Graham. Well, if this is helping, I would hate to
see what not helping looks like.
Attorney General Garland. Well, I think----
Senator Graham. So, the bottom line for me is they're not
helping, and we need to up our game when it comes to fentanyl.
Gitmo. Are you familiar with the Gitmo prison?
Attorney General Garland. I haven't been there, if that's
what you're asking. I'll----
Senator Graham. No, I mean, but you know that we have
foreign terrorists----
Attorney General Garland. Yes----
Senator Graham [continuing]. Housed there? Is that right?
Attorney General Garland. I certainly do.
Senator Graham. Do you agree with me that under the law of
war, an enemy combatant, properly designated, can be held to
the end of hostilities?
Attorney General Garland. Yes. That's the law both of the
Circuit I was----
Senator Graham. Right.
Attorney General Garland [continuing]. On before, and the
Supreme Court.
Senator Graham. Right. So, do you agree with me that ISIS
and Al Qaeda is still at war with us?
Attorney General Garland. Yes, I do.
Senator Graham. So, you agree that anybody associated with
these organizations could be held indefinitely if they present
a risk to the American people?
Attorney General Garland. I think they could. I think that
the determination of whether they present a risk and how they
should be dealt with is a determination to be made by the
Defense Department, and the----
Senator Graham. Yes.
Attorney General Garland [continuing]. Defense Department
is making----
Senator Graham. But legally----
Attorney General Garland [continuing]. Those
determinations.
Senator Graham [continuing]. They can be held as long as
they're a risk, and that could be for the rest of their lives.
Correct?
Attorney General Garland. I think that's right. It
obviously depends on the facts----
Senator Graham. Right.
Attorney General Garland [continuing]. Of the
determination.
Senator Graham. I totally agree. Do you believe Russia is
committing crimes against humanity?
Attorney General Garland. I do.
Senator Graham. Okay. That's a pretty bold statement.
Should we create an international court to support charges of a
crime of aggression? Do you support that idea?
Attorney General Garland. So, the United States supports
what is now being developed in The Hague, sponsored by
Eurojust, looking into the possibility of creating that court.
There are concerns that we have to take into account with
respect to how it might deal with our own service members and
other circumstances. We have to be sure that the appropriate
guardrails are up, but we support any number of different ways
in which war crimes, crimes against humanity, and the potential
for crimes against aggression are investigated.
Senator Graham. I'd like to work with you in that regard. I
think that's something we could do.
Attorney General Garland. I would be happy to.
Senator Graham. When it comes to Federal prisons, are you
aware that 1,200 prisoners are requesting to be sent from a
male prison to a female prison?
Attorney General Garland. I'm not, no.
Senator Graham. Okay. What is our policy when it comes to
allowing a male prisoner to be transitioned into a female
prison?
Attorney General Garland. I think if you're generally
asking the question of how trans people are dealt with in the
Bureau of Prisons, my understanding is that these are--
determinations about where they're placed or where people are
placed, in general, have to do with individualized
determinations regarding the security of that individual and
the management of the prison. These are done on a case-by-case
basis. That's my understanding.
Senator Graham. Are you aware of any policy guidelines that
they use to make that determination?
Attorney General Garland. I think there is a policy
guideline along the lines that I just said, that they are----
Senator Graham. I would like for the Bureau of Prisons to
send it to us. Are you concerned that if a biological male is
sent to a female prison, that could be a risk to female
prisoners?
Attorney General Garland. I think every person in prison
has to be dealt with with dignity and respect, that
determinations of the safety questions you're talking about
have to be made on an individualized basis and not
categorically.
Senator Graham. Finally, let's end where we started.
Fentanyl. If this drug is killing more Americans than car
wrecks and gun violence, combined, do you believe that the
policies we have today in effect are working?
Attorney General Garland. I've been involved in the problem
of drug crime and drug trafficking for more than 40 years,
including----
Senator Graham. That's not my question. It's not how long
you've been involved. Are they working?
Attorney General Garland. They are not stopping fentanyl
from killing Americans, if that's the question you're asking.
Senator Graham. Would you say they're woefully inadequate
to the task?
Attorney General Garland. We are putting all the resources
that Congress provides to us into doing this. The DEA is
doing--we are starting at the precursor level, when precursors
are sent from China to Mexico. We are then working on----
Senator Graham. Well, but----
Attorney General Garland [continuing]. Attacking the labs.
Senator Graham. My time is up. Mr. Attorney General,
they're not working. And we're going to help you, if you'll
work with us, to give you more tools. I hope you will meet us
in the middle. Thank you.
Attorney General Garland. Happy to have more tools,
Senator.
Chair Durbin. Before recognizing another colleague, I want
to apologize, in my reference to the DEA administrator. Her
name is Anne Milgram, and I mispronounced it, so I want, for
the record, to clarify that.
Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman, and thank you,
Attorney General, for being here. I appreciate it. Good to see
you.
Methane is probably the--one of the most dangerous
greenhouse gases. We see plumes of it, miles long, floating
across the United States. It takes multiple levels of
enforcement--Federal, State, local, and private--to address
these massive leaks. What can you tell me you are doing to
assure that there is that coordinated multijurisdictional
enforcement operation in place?
Attorney General Garland. You are exactly right. And we now
have the benefit of overhead commercial satellites which are
able to actually see methane with respect to the infrared
spectrum.
So, we are in the process of establishing a working group,
between our Environment and Natural Resources Division in the
Justice Department, the EPA, the Interior Department, and
affected U.S. Attorney's Offices across the country, to make
use of the tools, the scientific tools we have, and also some
of the funding that was provided in the Bipartisan
Infrastructure Act.
Senator Whitehouse. That is good news, and I hope that that
effort will include advisory participation from State law
enforcement, from local law enforcement, and from private
litigant experts in this space.
Attorney General Garland. All of our work in the law
enforcement field involves partnering with State and local law
enforcement. Always happy to have expertise provided, but our
law enforcement working groups are confined to law enforcement,
as a general matter.
Senator Whitehouse. I just got a document from an insurance
publication that says, I'm just reading here, ``At least 1,375
climate change-related lawsuits have already been brought in
the United States.'' These include suits filed by local
municipalities and by States--Rhode Island is one of them--as
well as shareholder suits.
Given all of that Government litigation taking place in
this space, I would ask you, is there anyone looking at Federal
DOJ involvement in that area, in the Department of Justice? And
if so, who is that person?
Attorney General Garland. So, I really don't, as a general
matter, want to describe our internal decision-making
processes. On these, I can assure you that the Environmental
and Natural Resources Division has taken a very close look at
this question. But beyond that, I really can't say.
Senator Whitehouse. Okay. Well, you may recall that the
last time the Department of Justice took a really close look at
this question, they got the standard of decision wrong. They
applied a criminal standard of review to civil litigation. So,
I hope that the seriousness of the look that's been taken, what
I would like to call an honest look, is actually, in fact,
taking place, because the record from before your time is not
very convincing.
Attorney General Garland. I agree with you, Senator, that
the criminal standard, beyond a reasonable doubt, is not
appropriate for fraud cases.
Senator Whitehouse. Yes.
Attorney General Garland. Correct.
Senator Whitehouse. And----
Attorney General Garland. I'm sorry, for civil fraud cases.
Senator Whitehouse. Civil fraud cases. Correct. Criminal
cases.
Congress, right now, is on the wrong side of a bunch of OLC
opinions that relate to Executive privilege. And there are some
specific ones that relate to so-called ``absolute immunity''
that are on the books at OLC that have been specifically
rejected in quite forceful language by actual Article III
judges, and yet those OLC opinions are still on the books.
They're still available to other agencies who are making
determinations about whether to block congressional oversight
based on those OLC opinions.
I would like to ask you--let me go back a step. OLC says
that they don't ordinarily review opinions of their own even
after they've been discredited by Article III judges, unless
they've been asked. And you're one of the people who can ask
them. So, I'm asking you, will you ask them to review the OLC
opinions that are now publicly on the books, of the Department
of Justice, that have been discredited by specific findings of
Article III judges? They relate to absolute immunity.
Attorney General Garland. So, my understanding of the
longstanding process at OLC is not to reevaluate old opinions
unless they are now relevant for a current controversy.
Senator Whitehouse. That's the problem.
Attorney General Garland. And I also believe that their
process is that if a court of ultimate jurisdiction determines
that they are wrong, then they will evaluate it. My
understanding of the cases----
Senator Whitehouse. So, Ketanji Brown Jackson was one of
the authors of one of the opinions that said the OLC opinions
were wrong. She's a pretty credible judge, I think. She's now
sitting on the United States Supreme Court. And those OLC
opinions hang out there for review by other executive agencies,
even if there's no direct ask to the Department that would
trigger that OLC review.
Attorney General Garland. So----
Senator Whitehouse. It's sort of like executive branch
jurisprudence that sits on its own, independent from Article
III jurisprudence. And somehow we've got to figure out how to
connect those two things, because at the moment, you have OLC
opinions that appear to be flat-out wrong, by the
determinations made by those whose job it is to say what the
law is, the Article III judges, and there's no effort to ask
them, in that fairly unique circumstance, to go back and fix
it.
Attorney General Garland. So, again, I think all the
circumstances you're talking about, about individual judges,
sometimes a single judge on a court of appeals, sometimes a
judge speaking in dicta, but no decision--if there were a
decision of the United States Supreme Court that was
inconsistent, or of a court of appeals, I believe OLC would
reevaluate.
Otherwise, there are lots of judges who criticize OLC
opinions, and the Justice Department--as a former judge, that's
perfectly appropriate for Article III judges to do, but we have
to allocate our resources to cases which are active cases, and
that's what OLC does.
Senator Whitehouse. Well, I will continue to pursue this
because I think it is wrong for OLC to insist on developing its
own jurisprudence that is separate from and independent from
what Article III judges decide.
And if the only way you can change an OLC opinion, which is
controlling on the entire executive branch, is to get the
Supreme Court to overturn it, then you've created a really
lasting obstacle to the proper separation of powers in our
Constitution. So, to be continued. Attorney General, thank you
for being here today.
Attorney General Garland. Thank you.
Chair Durbin. Thank you, Senator Whitehouse. Senator
Grassley.
Senator Grassley. At last year's FBI oversight hearing,
Wray committed to protecting whistleblowers that have
approached my office about wrongdoing at the Department, and
the FBI. Do you commit to me, this Committee, and the Senate as
a whole that any retaliatory conduct against whistleblowers
will be disciplined?
Attorney General Garland. I do, Senator. And you know well,
more than any other Member of this Committee, that I've been a
staunch supporter of whistleblowers and of the False Claims
Act, all during the entire period of my role as a judge, as
well.
Senator Grassley. I'm going to set up a hypothetical fact
pattern for you and ask you to tell me how you would handle it.
The Justice Department and the FBI received information
from over a dozen sources. That's the first one.
Second, those sources provide similar information about
potential criminal conduct relating to a single individual.
And third, that information was shared with the Department
and FBI over a period of years.
According to Department policy and procedures, what steps
would the Department take to determine the truth and accuracy
of the information provided by those sources?
Attorney General Garland. I'm sorry. These are
whistleblower--so, they're internal sources? Is that what
you're saying? I'm not sure.
Senator Grassley. It doesn't matter where it comes from.
Just the fact that I want to know. You got that information,
how would you go about handling it?
Attorney General Garland. Yes. So, reports of wrongdoing
are normally reported to whatever the appropriate Department
component is. It might be a U.S. Attorney's Office in the
district in which it allegedly took place. It might be directly
to FBI components and to FBI task forces.
In cases involving whistleblowers, of course, there are
specific provisions for making complaints to the Inspector
General's Office or the Office of Professional Responsibility
or the Inspections Division of the FBI.
Senator Grassley. Recent lawfully protected whistleblower
disclosures to my office indicate that the Justice Department
and the FBI had, at one time, over a dozen sources that
provided potentially criminal information relating to Hunter
Biden. The alleged volume and similarity of the information
would demand that the Justice Department investigate the truth
and accuracy of the information.
Accordingly, what steps has the Justice Department taken to
determine the truth and accuracy of the information provided?
Congress and the American people, I think, have a right to
know.
Attorney General Garland. So, as the Committee well knows
from my confirmation hearing, I promised to leave the matter of
Hunter Biden in the hands of the U.S. attorney for the District
of Delaware, who was appointed in the previous administration.
So, any information like that should have gone--or should,
or should have gone to that U.S. Attorney's Offices and the FBI
squad that's working with him. I had pledged not to interfere
with that investigation, and I have carried through on my
pledge.
Senator Grassley. In April 2022, you testified to Senator
Hagerty that the Hunter Biden investigation was insulated from
political interference because it was assigned to, as you just
now told me, to the Delaware Attorney's Office.
However, that could be misleading, because without special
counsel authority, he could need permission of another U.S.
attorney, in certain circumstances, to bring charges outside
the District of Delaware. I'd like clarification from you with
respect to these concerns.
Attorney General Garland. The U.S. attorney in Delaware has
been advised that he has full authority to make those kind of
referrals that you're talking about or to bring cases in other
jurisdictions if he feels it's necessary. And I will assure
that if he does, he will be able to do that.
Senator Grassley. Does the Delaware U.S. attorney lack
independent charging authority over certain criminal
allegations against the President's son outside of the District
of Delaware?
Attorney General Garland. He would have to bring--if it's
in another district, he would have to bring the case in another
district. But as I said, I have promised to ensure that he's
able to carry out his investigation and that he be able to run
it. And if he needs to bring it in another jurisdiction, he
will have full authority to do that.
Senator Grassley. If you provided the Delaware U.S.
attorney with special counsel authority, isn't it true that he
wouldn't need permission of another U.S. attorney to bring
charges?
Attorney General Garland. It's a kind of a complicated
question. If it--under the regulations, that kind of act he
would have to bring to me, to the Attorney General. Under the
regulations, those kind of charging decisions would have to be
brought. I would then have to, you know, authorize it and
permit it to be brought in another jurisdiction. And that is
exactly what I promised to do, here, already, that if he needs
to bring a case in another jurisdiction, he will have my full
authority to do that.
Senator Grassley. Has the Delaware U.S. attorney sought
permission of another U.S. Attorney's Office, such as in the
District of Columbia or in California, to bring charges? If so,
was it denied?
Attorney General Garland. So, I don't know the answer to
that, and I don't want to get into the internal elements of
decision-making by the U.S. attorney, but he has been advised
that he is not to be denied anything that he needs. And if that
were to happen, it should ascend through the Department's
ranks. And I have not heard anything from that office to
suggest that they are not able to do everything that the U.S.
attorney wants to do.
Senator Grassley. Well, let me give you my view. If Weiss,
the U.S. attorney there in Delaware, must seek permission from
a Biden-appointed U.S. attorney to bring charges, then the
Hunter Biden criminal investigation isn't insulated from
political interference, as you publicly proclaimed.
If the Justice Department received information that foreign
persons had evidence of improper or unlawful financial payment
paid to elected officials or other politically exposed persons,
and those payments may have influenced policy decisions, would
that pose a national security concern and demand full
investigation? And when Wray was here, he seemed to answer that
question in--that it was a national security concern. I want
your opinion.
Attorney General Garland. In the way that you're--if I
follow the question exactly right, if it's an agent of a
foreign government asking someone and paying someone to do
things to support that foreign government in secret, yes, I
definitely think that would be a national security problem.
Senator Grassley. Okay. My last question is, do--
whistleblowers have confidentially asserted that the DOJ's
public integrity unit--I think I'm going to leave that question
for another round. Thank you, Mr. Chairman.
Attorney General Garland. Thank you, Senator.
Chair Durbin. Thanks, Senator Grassley. Senator Klobuchar.
Senator Klobuchar. Thank you very much, Attorney General
Garland, for being here. I know a major goal of yours was
working to build morale in the Department, filling a number of
the jobs. And I want to personally thank you for the work of
the U.S. Attorney's Office in Minnesota and our U.S. Attorney
Andy Luger, who I know you know.
And he actually, at his swearing-in, announced a major
strategy to address violent crime that directed Federal law
enforcement to prioritize cases, including carjackings--we've
had a rash of those cases in Minnesota--and the trafficking of
firearms.
Under his leadership, every Federal prosecutor--as you are
aware, in your leadership--in the office will now take on
violent crime cases. Can you talk about how the Department's
approach to focusing on violent crime is centered on
partnerships with local agencies and what you're doing?
Attorney General Garland. Yes. I want to begin by saying
that we well recognize that there is a terrible problem of
violent crime. Very first--and the reason violent crime is
important to the Federal Government is because it makes it
impossible for people to go about their ordinary lives and
carry out their civic responsibilities and their family
responsibilities without fear.
So, the Department is very seized with this problem, and
one of the very first things I did after becoming Attorney
General--this was, I think, in May, is to establish an anti-
violent crime strategy, which involves the kind of partnerships
that you're talking about and the kind of individual, district-
by-district determination that U.S. Attorney Luger has made in
his own district as to what is most necessary in that district
to fight violent crime.
Senator Klobuchar. Mm-hmm.
Attorney General Garland. Our plan involves three sets of
partnerships. One is among all Federal law enforcement, FBI,
DEA, Marshals, ATF, and Homeland Security and other agencies,
so that there is no turf fighting, that we all work together in
joint task forces, that those partnerships at the second level
be expanded to State and local law enforcement, police, and
sheriffs.
There are not enough Federal law enforcement in the world
to deal with the problem of violent crime. This is largely a
State and local issue and problem, and they are our force
multipliers, and we are their resource and expertise
multipliers. So, in every jurisdiction, the U.S. attorney is
responsible for creating a task force of Federal and State.
And then finally, there has to be relationships with the
community. As a former violent crime prosecutor myself, I know
we don't get witnesses to testify in violent crime cases unless
the community trusts us. The community doesn't trust us if law
enforcement doesn't engage with them, show that we're being
honest and transparent about our work, and, through our funding
mechanisms, provide grants for violence interruption and
violence intervention.
Senator Klobuchar. Okay. Thank you.
Attorney General Garland. And that, in a nutshell, is the
violent crime program.
Senator Klobuchar. Thank you for the thorough answer. I'm
going to just now do a bit of a rapid round follow-up on some
of these.
Attorney General Garland. Sure.
Senator Klobuchar. You mentioned law enforcement. You noted
in your testimony that the COPS Office has dedicated $224
million to help law enforcement.
Senator Murkowski and I have long championed the COPS
Hiring Program through the COPS Reauthorization Act. I assume
you continue to support that and continue to support the work
that needs to be done to address police officer recruitment and
retention issues.
Attorney General Garland. Absolutely. In the previous
fiscal year, I think we had $100 million to distribute, which
we did, for COPS hiring, for recruitment and retention.
In the next fiscal year, we expect over $200 million for
the same purpose. We know how difficult police departments
are--how much difficulty they're having with respect to
recruitment and retention, and we are trying to do everything
we can, both in terms of grants and in terms of expertise, to
help.
Senator Klobuchar. Okay. Very good. Minnesota--currently a
backlog of around 3,800 DNA cases awaiting testing. Senator
Cornyn and I are working together on the Debbie Smith Act. And
would that help law enforcement have the tools they need?
This--actually, these numbers just came out yesterday, so it's
very timely.
Attorney General Garland. Yes. No, absolutely, I think that
needs to be reupped, and we are very strongly supportive of
providing more funds to State and locals for DNA rape kits and
forensic analysis or the like.
Senator Klobuchar. Okay. I want to leave 2 minutes for
antitrust, so just one quick other follow-up. Senator Capito
and I asked what steps the Department has taken to stop the
trafficking of fentanyl on the dark web. I know some of my
colleagues have asked about fentanyl. Any update you want to
give on that? Or you could give it in writing afterwards.
Attorney General Garland. Well, I'll give you more detail
in writing.
As you know, we had a major takedown of two different dark
web websites, which were trafficking in fentanyl, and we are
continuing to investigate using our cyber tools to take those
websites down and to arrest the operators.
Senator Klobuchar. Okay. Thank you. Senator Grassley and I
worked together on passing, as you know, the changes to the
merger fees. It was kind of a lot of drama at the end of the
year, and we're very pleased that that went through and it had,
I think, 88 Senators supporting an amendment at the end of the
year on the budget. And I assume you're going to use those
resources in a good way, as they start coming in.
But I really wanted to focus on some of the legal changes
we'd like to see. Senator Lee and I were pleased the Venue bill
passed that he led. And I know we also have a bill on the
marketing side on Google. We're going to be having a hearing
coming up on that topic. And I know the Department recently
announced a new antitrust case against Google for its blocking
of competition in digital advertising.
But could you talk a little bit about, beyond that, what
you think legal changes, law changes would be helpful as we're
seeing a changing internet economy? And on the privacy kids'
side, which Senator Durbin asked about, we haven't seen any
changes to our laws.
But also on the antitrust side, on the marketing, on the
self-preferencing of their products, whether it's Amazon or
Apple, we haven't seen changes.
And Senator Blackburn and Senator Blumenthal have worked
together on the App Store bill. Talk about what you'd like to
see to give you the tools to better combat the issues that
we're seeing.
Attorney General Garland. So, first, gratitude for the
merger fees increase. It gives us the opportunity to staff up
and be able to have enough lawyers and economists to oppose
private sector, which has way more than we do. And we still
have fewer antitrust employees than we had in the 1970s, the
last time I was in the Justice Department. With respect to
the----
Senator Klobuchar. Yet you have the biggest companies the
world has ever seen, to try to deal with.
Attorney General Garland. Yes.
Senator Klobuchar. Yes. Okay.
Attorney General Garland. Exactly. On the legislation side,
we have supported--I think it's called the Online Choice--
American Innovation and Online Choice Act.
Senator Klobuchar. Very good.
Attorney General Garland. Did I get it right? Yes.
Senator Klobuchar. Yes.
Attorney General Garland. Thank you. And the Open Apps
Act--I think that's close to the correct title. We've had
testimony by Assistant Attorney General Kanter with respect to
the Open Apps Act.
We are always interested in working with Congress to
modernize the antitrust laws to take account of the kind of
network effects and two-sided platforms that we now have in our
high-technology companies.
Senator Klobuchar. Well, thank you. And, of course, you
join a number of Republicans, as well as the NFIB has made this
a huge priority in terms of passing these bills. Thank you.
Chair Durbin. Attorney General, of course, Senator
Klobuchar has a recommendation for your reading pleasure on the
subject of antitrust. Senator Cornyn.
Attorney General Garland. As Senator Klobuchar would say,
channeling Taylor Swift, I know that, ``all too well.''
[Laughter.]
Senator Klobuchar. Thank you for bringing up the Ticketmas-
ter hearing that Senator Lee and I conducted. I'm sure we will
have follow-up in writing, or maybe Senator Lee could ask a
question about that. Thank you.
Attorney General Garland. I can't match all of Senator
Lee's quotes on this one, but I'm pretty familiar with Taylor
Swift, so I'll do my best.
Chair Durbin. Now you've got us started. Senator Cornyn.
Senator Cornyn. Attorney General Garland, you, of course,
served in the judiciary for many years and before you became
Attorney General--let me just ask, do you prefer to be called
General Garland or Judge Garland?
Attorney General Garland. Well, the Senators of this
Committee can call me anything that they want.
Senator Cornyn. Well, we will, with all appropriate
respect.
Attorney General Garland. I appreciate that part.
Senator Cornyn. Are you familiar with the strategy of the
transnational criminal organizations that are flooding migrants
across the border, overwhelming Border Patrol and other law
enforcement authorities so that then the drug traffickers can
move illicit drugs across the border? Are you familiar with
that, what----
Attorney General Garland. I----
Senator Cornyn [continuing]. I would call a business model?
Attorney General Garland. I am, and I set up--I
specifically directed the establishment of a task force on
anti-smuggling and anti-human trafficking, for just the reason
you said. It involves our Civil Rights Division, our Criminal
Division, and the U.S. Attorney's Offices all along the border,
as well as our offices in the Northern Triangle countries and
Mexico.
Senator Cornyn. I think you and I had this conversation
earlier, maybe at your confirmation hearing, but I think the
Attorney General has the toughest job in Government, I believe,
because you have to wear two hats.
You are the chief law enforcement officer of the country,
and you are also a political appointee and a member of
President Biden's Cabinet. But I think you also told us at the
hearing, your confirmation hearing, you repeatedly said that
the executive branch cannot simply decide, based on policy
disagreements, that it will not enforce the law. Is that still
your position?
Attorney General Garland. Yes, it is, Senator.
Senator Cornyn. On September the 11th, 2001, we lost about
3,000 Americans to a terrorist attack. We declared a war on
terror. The Congress issued an authorization for the use of
military force. If you took the size of an average 737, or a
passenger jet, today holds between 145 and 185 passengers.
If you were to rack up all of the deaths that we've seen as
a result of drugs coming across the southwestern border as a
result of this successful business model that the cartels have
employed, you would be talking about the equivalent of a
passenger jet per day crashing, killing everyone on board.
I have been just astonished at the lack of sense of urgency
to deal with this issue. It seems we've become so desensitized
to it that that sense of urgency is simply gone. But I will
tell you that it's directly related to the open border policies
of the Biden administration, where people continue to come
across the border, turn themselves in to a broken asylum system
or simply get away from law enforcement, because they're
overwhelming the Border Patrol's capacity.
This is intentional, as you acknowledge. It's a business
model of the cartels, and they are getting rich, and students
like those parents who I met with last week in Johnson High
School in Hays County, Texas, right outside of Austin, are
losing their sons and daughters to fentanyl overdoses because
of exactly this successful business model by the cartels.
I want to ask you a little bit about the prosecution
policies of the Garland Attorney General's Department of
Justice. Sort of the bedrock standard for prosecuting crimes
has historically been that the prosecutor should pursue the
most serious, readily provable offense, and that that's been
the bedrock of policy for--over decades. We know that Eric
Holder, when he was Attorney General, changed that standard.
And specifically what I want to ask you is about two
different memos that you've issued to prosecutors with regard
to mandatory minimum sentencing. And specifically, in the
charging memo, one of the charging memos, you said, ``The
proliferation of provisions carrying mandatory minimum
sentences has often caused unwarranted disproportionality in
sentencing and disproportionately severe sentences.''
Now, just to be clear, mandatory minimum sentences are
statutory. Correct? In other words, they're passed by Congress
and signed into law by the President.
Attorney General Garland. Yes, that's right.
Senator Cornyn. And here, you suggest that prosecutors
should not enforce or charge defendants with a crime which
carries a mandatory minimum under certain circumstances.
Correct?
Attorney General Garland. It's not--it's not exact--if I
can just have a moment to explain. I'm very familiar----
Senator Cornyn. No, well, if you'd just answer the
question.
Attorney General Garland. Yes.
Senator Cornyn. So, the memo says, specifically--I'll just
read it to you. It said, ``For this reason, charges that
subject a defendant to a mandatory minimum sentence should
ordinarily be reserved for instances in which the remaining
charges would not sufficiently reflect the seriousness of the
defendant's criminal conduct, danger to the community, harm to
victims, or other considerations outlined above.''
So, basically, your charging memorandum says that
prosecutors can exercise their discretion to charge less than
the most serious offense because you don't like the mandatory
minimum sentences that Congress has passed. Correct?
Attorney General Garland. No, Senator. This is a question
of allocating our resources and focusing them on violent crime.
Later on in----
Senator Cornyn. I thought you said--I thought you said that
your job was to enforce the law without regard to policy
differences.
Attorney General Garland. It's not a question of policy
differences. It's a question of the resources we have----
Senator Cornyn. You don't have enough money? You don't have
enough people?
Attorney General Garland. We don't have enough people. We
don't have enough money. We don't have enough jails. We don't
have enough judges. But----
Senator Cornyn. Well, you've arrogated to yourself the
decision to make policy by saying that, in spite of the fact
that there are mandatory minimum sentences for many of these
drug crimes, which are now causing untold death and destruction
across America, you're telling prosecutors, ``Don't charge
those if they involve a mandatory minimum sentence.''
Attorney General Garland. With respect, Senator, the
memorandum makes clear that that general analysis doesn't apply
in violent crime, doesn't apply in drug trafficking, doesn't
apply in cases in which there's injury.
Senator Cornyn. So, you're cherry picking which cases that
you will charge with a mandatory minimum sentence----
Attorney General Garland. I----
Senator Cornyn [continuing]. And not applying them
uniformly and charging the most serious crime that can be
proven at trial.
Attorney General Garland. If we apply it to every single
crime, we will not be able to focus our resources on violent
crime and significant drug trafficking, on the cartels, on the
people who are killing people with fentanyl. So, the purpose
here is to focus the attention of our prosecutors and agents on
the things that are damaging the American people in the largest
possible respect. That's what the--this policy says.
Senator Cornyn. At 108,000, roughly, Americans who died as
a result of drug overdoses last year--71,000, roughly, of
fentanyl overdoses, do you consider your current policies
successful?
Attorney General Garland. We--as I said in answer to
another question, we have a huge epidemic of fentanyl problem
created by intentional acts by the cartels. We are doing
everything we can within our resources to fight that. We have
our DEA working to prevent transfer of precursors into Mexico,
to capture the labs, to extradite the cartel leaders, to arrest
them in the United States.
We are focusing on fentanyl with enormous urgency. I have
personally twice traveled to Mexico to try to get greater
cooperation from the Mexicans on exactly the problem you're
talking about. I have separately talked twice in person with
the Mexican attorney general for exactly the problem that
you're talking about.
We are focusing on this with enormous urgency. This is a
priority of the Justice Department, but this is a whole-of-
Government problem. The border is the responsibility of the
Department of Homeland Security. We do what we can do with
respect to the jurisdictions that we have.
Chair Durbin. Thank you, Senator Cornyn. Senator
Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Let me begin by
thanking you, Mr. Attorney General, and all of the very
dedicated professionals, all of the employees of the Department
of Justice, for the great work that they do, day in and day
out, a lot of it underappreciated. I say that as an alumnus of
the Department of Justice, a former United States attorney.
But the work that you and your team have done to restore
the confidence and trust of the American public in our
Department of Justice, I think, is one of your enduring
contributions.
Let me begin with areas where I think we have a high level
of bipartisan agreement. First of all, on the Wagner Group,
Senator Graham and I are the principal sponsors, along with
Senator Whitehouse, of a measure to declare the Wagner Group a
foreign terrorist organization. You would agree that, assuming
that the State Department goes along with us, that it is
worthwhile doing?
Attorney General Garland. Look, Mr. Prigozhin, who runs
this thing, is, in my view, a war criminal. And maybe that's
inappropriate for me to say, as a judge before getting all the
evidence, but I think we have more than sufficient evidence at
this point for me to feel that way.
And I believe that that group, which is responsible for the
attacks on Ukrainians in the Donbas, including by bringing in
prisoners from Russian prison camps as cannon fodder--it's
just--it's unfathomable, what they are doing, and everything we
can do to stop them, we should do.
Senator Blumenthal. Senators Whitehouse and Graham, and I,
have been working on aiding Ukrainian prosecutors in bringing
to justice those war criminals, not only Prigozhin, but others
who tied the hands of women and children behind their backs,
shot them, buried them in mass graves, which I have visited
among my three trips to Ukraine. Can you commit the Department
of Justice will support the Ukrainian prosecutor who is hard at
work right now in trying to bring to justice those war
criminals?
Attorney General Garland. Not only will I commit, but I'll
tell you, I have done that. I've met twice in person with the
current prosecutor general, Prosecutor Kostin. I met in Ukraine
with the previous prosecutor general. We have established a war
crimes task force in the Justice Department to assist.
Our forensic agents are on the ground now in Ukraine to
assist, to teach, to assist in the development of the forensics
necessary to do those. I have met with Eurojust and Europol to
work on the--to help them develop the kind of infrastructure
necessary to prosecute these cases.
Senator Blumenthal. Thank you.
Attorney General Garland. You have our wholehearted support
in your efforts here.
Senator Blumenthal. Thank you. Next week, Senator Hawley
and I are going to have a hearing on Section 230 reform, the
first of a number of hearings that I hope will lead to
legislation. I hope it will be bipartisan legislation.
The Solicitor General, in her argument on Gonzalez, I think
made a number of important points on differentiating third-
party content from platform design.
In other words, Section 230 could cover content that users
post, but when YouTube or others design their products in
specific ways that cause harm or take steps to amplify or
change content, that goes beyond the intent and the statutory
language of Section 230, one example of the ways that I think
we can achieve steps toward Section 230 reform.
Another is the EARN IT Act, which Senator Graham and I have
sponsored, and we will introduce it again this year. I
recognize that these are general principles. I hope the
Department of Justice will support this effort.
I hope that you will, as well, support efforts to take
action against monopolistic endeavors like Ticketmaster. I
understand that you commented briefly on it. Can you confirm
that Ticketmaster is under investigation now?
Attorney General Garland. So, the Department doesn't
confirm or deny the existence of these kinds of investigations
until they reach an overt stage, as you know from your time as
a U.S. attorney.
But as I told Senator Klobuchar, we know, quote, ``all too
well,'' closed quote, the importance of competition in this
industry, as in all other industries. And so you can be
confident that in all of our work we approach it with an
understanding that highly concentrated industries are a problem
for competition.
Senator Blumenthal. In that concentrated situation, where
power is concentrated and you have violation of consent decrees
twice, wouldn't it be appropriate for the Department of Justice
to investigate?
Attorney General Garland. As I say, I really am happy to
talk in a hypothetical, that in a case where someone violates
the consent decree, of course, it would be appropriate to
investigate. But I just don't want to talk about individual
investigations and whether they're ongoing.
Senator Blumenthal. Let me ask you, the American public
right now is hearing about investigations involving COVID, the
sources of COVID in China, conclusions with low confidence,
high degree of confidence.
Can you, as an official in charge of intelligence and
interpretations of intelligence, explain to the American people
what it means for there to be low confidence or higher
confidence when there are conclusions about, for example, the
sources of COVID? Whether it came from natural sources in China
or from a lab leak? What does that designation mean?
Attorney General Garland. I would have to say, to my
knowledge--I mean, these are labels that are applied by the
intelligence community, so while I read the results, I'm not
sure I can exactly define it.
But I believe it is just as you would think, that if asked
to make a decision and say yes or no, you say yes or no
depending on the degree of confidence that you have that your
yes-or-no answer is correct. So, low confidence means you think
the answer is yes, but you don't have high--you know, you have
low confidence in it. Medium is medium. You might answer, ``We
don't know at all,'' but that's not what--that's not what
you're asking about.
Senator Blumenthal. So, it's more than a hunch or a guess,
but not quite----
Attorney General Garland. Yes.
Senator Blumenthal [continuing]. Something to take to the
bank.
Attorney General Garland. Yes. So, there's a lot of
criminal law, ranging from Terry stops to probable cause to
convictions. I don't think there is any law in the intelligence
community that defines those, specifically.
Senator Blumenthal. You wouldn't sanction a search or an
arrest based on low confidence?
Attorney General Garland. Well, search and arrest require
probable cause. That's all I can say about that.
Chair Durbin. Thank you, Senator Blumenthal.
Senator Blumenthal. Thank you.
Chair Durbin. After Senator Lee asks, we're going to take a
brief intermission. Senator Lee.
Senator Lee. Thank you, Attorney General Garland. I want to
echo briefly what Senator Klobuchar described. I hope you'll
look at our letter and investigate thoroughly those issues.
As you know, I've long respected you and I've long
respected your Department. I have become concerned recently
that, notwithstanding the great men and women who serve and
have served for generations in the Department of Justice, there
are some things that lead me to wonder whether some actions are
being politicized within the Department.
One example of this relates to 18 U.S.C. Sec. 1507.
[Poster is displayed.]
Senator Lee. Ever since the leak of the Dobbs opinion and
then the issuance of the Dobbs opinion by the Supreme Court
last summer, we've had protesters who have been showing up at
the homes of Supreme Court Justices, carrying signs, picketing,
shouting.
It's very clear that they're trying to influence, in one
way or another, those serving on the United States Supreme
Court, trying to influence jurisprudence. And yet not one
person, to my knowledge, has been prosecuted for such things
under 18 U.S.C. Sec. 1507.
About 2 weeks ago, this Committee invited some officials
from the Department of Justice to brief Committee staff on
protests at the Justices' homes and ask about any arrests that
have been made or might be made for people engaged in that
behavior. The briefers came to the briefing and informed staff
that they hadn't read Section 1507. I assume you've read it, of
course.
Just wondering why the Department would schedule such a
briefing on a statute without having read it and, especially,
why no actions have been brought under Section 1507 for these
actions. I've got a lot to cover, so, can you answer that in
one or----
Attorney General Garland. I'll try to answer----
Senator Lee [continuing]. Two sentences?
Attorney General Garland [continuing]. All these
questions----
Senator Lee. Well, no, just----
Attorney General Garland [continuing]. Together.
Senator Lee [continuing]. Just tell me, am I right in
concluding that you haven't brought any charges under 1507?
Attorney General Garland. So, I don't know the answer to
that.
We have--the thing that mattered--and as soon as the Dobbs
draft leaked, I ordered the marshals to do something that the
United States Marshals had never in history done before, which
was protect the Justices' homes, residence, and lives, 24/7. No
Attorney General had ever ordered that before, and no Justice
Department had ever done that before. We sent more----
Senator Lee. Which is terrific. That's----
Attorney General Garland. Thank you.
Senator Lee [continuing]. Fantastic.
Attorney General Garland. So, I'm----
Senator Lee. I'm talking about 1507.
Attorney General Garland [continuing]. Getting to the why.
So, we sent more than 70 U.S. Marshals for this purpose. Those
marshals' priority is protection of the lives of the Justices
and their families. They are onsite, but their priority job is
protection.
That is why, when someone did come to assault Justice
Kavanaugh, he had to go away from where they were, because
there were two marshals in front of the house, and eventually
he self-reported himself. The marshals have been advised, and
they know--the marshals on the ground--they have full authority
to arrest people under any Federal statute, including that
Federal statute, but they have to make the determination on the
ground whether they can do that in a manner that is safe and
able to protect their main mission.
Now, there are also State and local entities which have
similar authorities and which I understand the Supreme Court
Marshal has asked them to do this, as well. I don't know
whether they have done any of those things.
Senator Lee. Okay. Thank you. I'd love to follow up with
you more on that later. It is concerning to me when you show up
at the home of a public official, you're sending the message of
implicit violence.
You're sending the message, ``We know where you sleep. We
know where you and your family are most vulnerable.'' And it's
very concerning to me.
I assume you're aware of the overly aggressive arrest and
prosecution of Mark Houck, who is a pro-life activist and
father of seven in Philadelphia, based on the fact that he had
pushed a protester--a protester, or a Planned Parenthood
escort, rather--as he was demonstrating outside of an area in
the Philadelphia region.
[Poster is displayed.]
Senator Lee. He pushed this person, after this person got
in the face of his 12-year-old son and was yelling vile,
insulting, demeaning, implicitly threatening things,
denigrating his father, denigrating his faith, and yelling
vile, sexually suggestive things to his 12-year-old son. So, he
shoved him.
And then before they knew it, Mr. Houck was facing FACE Act
prosecutions. A highly militarized group of DOJ law enforcement
showed up to enforce a warrant. They showed up at about 7 a.m.
on a Friday morning. And, as his--Houck's wife put it, ``A SWAT
team of about 25 came to my house with about 15 vehicles and
started pounding on the door and then had about 5 guns pointed
at my husband, myself, and basically my kids.''
This concerns me. You know, Mr. Houck ended up facing these
charges, and, not surprisingly, the jury acquitted him of that.
I'm just wondering how--it doesn't seem justifiable, to me, to
have that overwhelming show of force for conduct like that.
In the meantime, in 2022, and for the first couple of
months of 2023, DOJ has announced charges against 34
individuals for blocking access to or vandalizing abortion
clinics.
And there have been over 81 reported attacks on pregnancy
centers, 130 attacks on Catholic churches since the leak of the
Dobbs decision, and only 2 individuals have been charged. So,
how do you explain this disparity by reference to anything
other than politicization of what's happening there?
Attorney General Garland. The FACE Act applies equally to
efforts to damage, blockade clinics, whether a pregnan--
resources--whether they're a pregnancy resource center or
whether they are an abortion center. It applies equally in both
cases, and we apply the law equally.
I will say you are quite right. There are many more
prosecutions with respect to the blocking of the abortion
centers, but that is generally because they are--those actions
are taken with photography at the time, during the daylight,
and seeing the person who did it is quite easy. Those who are
attacking the pregnancy resources centers, which is a horrid
thing to do, are doing this at night, in the dark.
We have put full resources on this. We have asked--put
rewards out for this. The Justice Department and the FBI have
made outreach to Catholic and other organizations to ask for
their help in identifying the people who are doing this. We
will prosecute every case against a pregnancy resource center
that we can make. But these people who are doing this are
clever and are doing it in secret. And I am convinced that the
FBI is trying to find them with urgency.
Senator Lee. Okay. I see my time's expired. Mr. Chairman,
I'd like to submit for the record a copy of a letter sent by
Representative Andy Biggs from Arizona regarding a case
involving Philip Esformes, an individual who was granted
clemency by the prior administration and who's now apparently
being prosecuted. I hope to discuss this in a subsequent round.
Chair Durbin. Without objection, it will be entered in the
record.
[The information appears as a submission for the record.]
Chair Durbin. We're going to recess for 5 minutes. The
Committee stands in recess.
[Whereupon the hearing was recessed and reconvened.]
Chair Durbin. The Committee will resume. Senator Padilla.
Senator Padilla. Thank you, Mr. Chair. Attorney General, as
we've discussed on prior occasions, we know that hate crimes in
many United States cities are at their highest level since the
FBI began collecting data in the 1990s.
Los Angeles alone has seen almost 700--well, saw almost 700
hate crimes in the year 2022, its highest total ever. Hate
crimes are also known to be widely underreported, so the real
numbers are very likely to be much higher.
Now, hate crimes based on antisemitism, in particular, are
rising at alarming rates. According to the Center for the Study
of Hate and Extremism at California State University, San
Bernardino, Los Angeles faced 80 antisemitic hate crimes from
January to October of last year, a nearly 10 percent increase
over the previous year.
And this past month, Federal prosecutors charged a 28-year-
old man with hate crimes after he fired at two Jewish men as
they walked home from their synagogue in Los Angeles.
So, my question is this, do we have adequate resources
being devoted to hate crime investigation and prosecution, and
are there any solutions that you believe we should be
considering to help us help you do this job?
Attorney General Garland. I'm grateful for the question.
And obviously, if anybody ever wants to give me more resources
in any area of the Justice Department's responsibility, I'm
happy to take them.
We have been focused like a laser on hate crime since I
first came into the Department. I think my memorandum to the
Department to develop an anti-hate crime task force was one of
the very first memorandums I issued. As we were making our
developments in that respect, the anti-hate crime act was
passed by the Congress, providing us with additional funding,
which was very helpful.
I've established a hate crimes coordinator in the
Department, and each of our U.S. Attorney's Offices is on the
case, looking into these matters. And the FBI has elevated hate
crimes and civil rights violations into their highest band of
threats. So, I would say we are examining this with the highest
degree of urgency that's possible, and we are putting our
resources of our Department into stopping these heinous acts.
Senator Padilla. Okay. I appreciate that. In addition to
resources, if there are specific policy changes or initiatives
that you'd like for us to consider----
Attorney General Garland. I'd be----
Senator Padilla [continuing]. Please bring them forward.
Attorney General Garland. My staff would be happy to work
with yours if you have ideas in this regard. I think we're
pretty--right now, I feel like we have the statutes and
techniques required, but there's always room for improvement in
everything, and we would be happy to work with you in that
regard.
Senator Padilla. A second area I wanted to raise is the
issue of labor exploitation of children, and, in particular,
migrant children. I'm hoping you caught a recent New York Times
report of their investigation which put a spotlight on the vast
use of migrant child labor across States and across industries.
I was particularly alarmed to learn that some of these children
are working full adult shifts in food processing facilities, in
factories--after school.
Children are being placed in occupationally dangerous
situations where they're putting their lives at risk and given
little break from grueling work. And many of these children
were formerly under the care of the Department of Health and
Human Services as unaccompanied minors but have not received
adequate follow-up services once released to the care of a
sponsor. And I ask consent to enter this article into the
record.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Padilla. Now, the Biden administration on Monday
did announce that it will direct agencies to crack down on the
use of child labor. And as part of the new initiative, it's the
Department of Labor who will investigate and enforce penalties
on these unscrupulous employers and make criminal referrals as
needed.
Now, the Department of Labor is also going to lead an
interagency task force to combat child labor exploitation. So,
my question is, will the Department of Justice be coordinating
with the Department of Labor on criminal referrals and possibly
join this interagency task force?
Attorney General Garland. We--of course. I read the same
article that you're talking about. I was horrified by the
reporting.
Our Criminal Division and our Civil Rights Division are
reaching out to the Labor Department and HHS to try to be of
assistance as much as possible. There's only a limited number
of criminal statutes that would apply.
I would point out we do have a forced labor task force
which has been very active, in general, and it includes
problems with respect to children, obviously. And I met with
them just yesterday, and they have assured me that they would
be reaching out, as well.
Senator Padilla. Okay. I look forward to following up on
that. But I also can't help but acknowledge some of the
dynamics that lead to these situations. Right?
We know that, from the private sector, we've heard that
there is a need to address the demand for workers. There's a
workforce shortage in America today across a number of
industries and sectors.
There's a reported 11 million unfilled jobs, many of which
have historically been filled by immigrants, you know,
permanent, temporary. But we've seen migration numbers drop in
recent years.
So, with no migrants to fill these jobs, since 2018, the
U.S. Department of Labor has seen a 69 percent increase in
children being employed unlawfully by companies.
So, it seems like employers, particularly unscrupulous
employers--they're going to find their workers somewhere, and
if they're not finding them through traditional, lawful means,
children become the victims.
Further disturbed by proposals I see from Republican
legislators in States, including Iowa, Ohio, Arkansas, and
others, where they're proposing to loosen child labor laws.
That's not the solution here--proposing 14- and 15-year-olds
work in meat coolers, industrial freezers, and other
environments.
This cannot be the answer to our Nation's labor problem.
So, I absolutely look forward to following up with you on this
crackdown of unlawful child labor in the United States. My time
is up, but I'll have some further follow-up questions in the
second round, I hope. Thank you.
Attorney General Garland. Thank you.
Senator Padilla. Mr. Chair.
Chair Durbin. Thank you, Senator Padilla. We're on a roll
call, just to alert the Members, and Senator Cruz is next.
Senator Cruz. Thank you, Mr. Chairman. General, welcome. As
you know, as I observed at your confirmation hearing, you had
built a long record on the Federal court of appeals and a
reputation of being relatively nonpartisan. And so I had hopes
that your tenure as Attorney General would continue that
record.
I have to say, I'm deeply disappointed in what the last 2
years have shown. In my judgment, the Department of Justice has
been politicized to the greatest extent I've ever seen in this
country. And it has done a discredit to the Department of
Justice, to the FBI, and to the administration of law in this
country.
Let me start with a simple question. General Garland, is it
a Federal crime to protest outside of a judge's home with the
intent of influencing that judge as to a pending case?
Attorney General Garland. The answer to that is yes, but I
also want to, at least, respond to your characterization of the
Department----
Senator Cruz. Sure.
Attorney General Garland [continuing]. Which I vigorously
disagree with. I believe the men and women of the Department
pursue their work every single day in a nonpartisan and an
appropriate way.
Senator Cruz. General Garland, there are thousands of men
and women who do that. And I'll tell you, I hear from
prosecutors at the Department of Justice, I hear from agents at
the FBI who are angry that it is treated as the enforcement arm
for the DNC instead of upholding the law in a fair and
evenhanded manner.
So, you are right. There are thousands of men and women
that are doing the job. But it is the political leadership that
you're responsible for.
So, you just said, yes, it's a crime to protest at the home
of a judge--same goes for jurors, by the way--with the intent
of influencing a case.
But in the wake of the leak of the Dobbs decision, when
rioters descended at the homes of six Supreme Court Justices,
night after night after night, you did nothing.
[Poster is displayed.]
Senator Cruz. The Department did nothing. When extremist
groups like Ruth Sent Us and Jane's Revenge openly organized
campaigns of harassment at the homes of Justices, you sat on
your hands.
When these same groups posted online information about
where the Justices worship or their home addresses or where
their kids went to school, you again sat on your hands and did
nothing. Your failure to act to protect the safety of the
Justices and their families was an obvious product of political
bias. You agree with Roe v. Wade. You disagree with the Dobbs
decision. And the Department of Justice under this President
was perfectly happy to refuse to enforce the law and allow
threats of violence.
And as you know, those threats finally materialized with
Nicholas Roske, a 26-year-old man from California who traveled
across the country, was arrested outside the home of Justice
Kavanaugh, armed with a handgun, a knife, and burglary tools,
and he said he came there to kill Justice Kavanaugh because he
was enraged by the leaked opinion.
Now, of course, you're prosecuting that individual for
attempted murder. But did you bring even a single case to
enforce this law or did the Department of Justice decide this
law doesn't apply if it's harassing Justices for an opinion we
don't like?
[Poster is displayed.]
Attorney General Garland. When the Dobbs draft was leaked,
I did something no Attorney General in the history of the
Department had ever done before. For the first time in history,
I ordered United States Marshals, 24/7, to defend every
residence of every Justice.
Senator Cruz. Judge Garland--as a judge, you're familiar
with asking counsel to----
Attorney General Garland. I'm----
Senator Cruz [continuing]. Answer a question.
Attorney General Garland. I am ans----
Senator Cruz. Has the Department of Justice enforced this
statute? Have you brought a single case against any of these
protesters threatening the Justices under 18 U.S.C. Sec. 1507?
Have you brought even one?
Attorney General Garland. Senator, you asked me whether I
sat on my hands. And, quite the opposite, I sent----
Senator Cruz. Okay. Let me----
Attorney General Garland [continuing]. Seventy United
States Marshals----
Senator Cruz. Let me try again.
Attorney General Garland [continuing]. To defend--and let
me----
Senator Cruz. Has the Department of Justice brought even a
single case under this statute? It's a yes-no question. It's
not a give a speech on the other things you did.
Attorney General Garland. The job of the United States
Marshals is to defend the lives of the----
Senator Cruz. So, the answer is no.
Attorney General Garland [continuing]. Is to defend the
lives of the Justices, and that's their number one priority.
They have full----
Senator Cruz. Why are you unwilling to say no? The answer's
no. You know it's no. I know it's no. Everyone in this in this
hearing room knows it's no. You're not willing to answer a
question. Have you brought a case under this statute? Yes or
no?
Attorney General Garland. As far as I know, we haven't, and
what we have done is defended the lives of the Justices with--
--
Senator Cruz. So, how do you decide----
Attorney General Garland [continuing]. Over 70 U.S.
Marshals.
Senator Cruz. How do you decide which criminal statutes the
DOJ enforces and which one it doesn't?
Attorney General Garland. The United States Marshals know
that they have full----
Senator Cruz. Okay. I recognize you want to give a separate
speech.
Attorney General Garland. No, I don't want to give a----
Senator Cruz. How do you decide which statutes you enforce
and which ones you don't?
Attorney General Garland. The marshals on scene make that
determination, in light of the priority of defend----
Senator Cruz. The marshals do not make a determination over
whether to prosecute. You, the Attorney General, make a
determination. And you spent 20 years as a judge, and you're
perfectly content with Justices being afraid for their
children's lives. And you did nothing to prosecute it. Let's
shift----
Attorney General Garland. That is a----
Senator Cruz [continuing]. To another area.
Attorney General Garland. Can I answer the question?
Senator Cruz. No. You cannot.
Attorney General Garland. The Attorney General----
Senator Cruz. You have refused to answer the question.
Attorney General Garland. I am answering your question. The
Attorney General----
Senator Cruz. How did you choose not----
Attorney General Garland [continuing]. Does not decide
whether to arrest----
Senator Cruz. How did you choose not to enforce this
statute?
Attorney General Garland. The marshals on scene----
Senator Cruz. The marshals don't make that decision.
Attorney General Garland. They do make the decision of
whether to make an arrest.
Senator Cruz. To prosecute someone? No, they don't.
Attorney General Garland. If they make a--if they make a--
--
Senator Cruz. The marshals do not have prosecution
authority.
Attorney General Garland. If they make an arrest, then it
goes to the----
Senator Cruz. All right, let's----
Attorney General Garland [continuing]. Marshals.
Senator Cruz [continuing]. Change topics, because our time
is limited.
We've also seen, across the country, violent attacks at
crisis pregnancy centers by similar left-wing terrorist groups,
including one graffiti of a firebombed building said, ``Jane
was here.''
[Poster is displayed.]
Senator Cruz. There have been attacks all over the country,
and yet the Department of Justice has not brought these violent
criminals to justice.
You contrast that--if you're a violent criminal and you
attack a crisis pregnancy center, that is not a priority in the
Biden Department of Justice.
Contrast that to Mark Houck, who's a pro-life activist.
He's a sidewalk counselor and he had an altercation with
someone who allegedly interfered with his son's personal space
and threatened his son, and he pushed him. Now, in an ordinary
world, pushing someone would be maybe a simple misdemeanor
assault, but not under the Biden Department of Justice.
If you're a pro-life activist, what can you expect? Well,
in this instance, according to Mr. Houck's wife, two dozen
agents clad in body armor and ballistic helmets and shields and
a battering ram showed up at his house, pointing rifles at his
family.
[Poster is displayed.]
Senator Cruz. Why do you send two dozen agents in body
armor to arrest a sidewalk counselor who happens to be pro-
life, but you don't devote resources to prosecute people who
are violently firebombing crisis pregnancy centers?
Attorney General Garland. It is a priority of the
Department to prosecute and investigate and find the people who
are doing those firebombings. They are doing it at night and in
secret. And we have found--we have found one group, which we
did prosecute. We are----
Senator Cruz. You found one. How many have there been? How
many attacks have there been?
Attorney General Garland. There have been a lot. And if you
have any information specifically as to who those people are,
we would be glad----
Senator Cruz. Let me ask you something.
Attorney General Garland. We would be glad to have that
information.
Senator Cruz. Did you personally authorize 20 agents going
to Mr. Houck's house?
Attorney General Garland. I----
Senator Cruz. And he offered to turn himself in through
counsel, but you didn't want that. The Department of Justice
wanted to make a show of it. Did you personally authorize it?
And do you want to apologize to Mrs. Houck and her seven
children for being terrorized?
Attorney General Garland. Decisions about how to do that
are made at the level of the FBI agents on scene and in----
Senator Cruz. Did you know about it?
Attorney General Garland. I did not know about it until--
the way you're describing it, and my understanding is the FBI
disagrees with that----
[Gavel is tapped twice.]
Attorney General Garland [continuing]. Description.
Senator Cruz. Was it a mistake?
Chair Durbin. The Senator's time has expired. I'm going to
allow the witness to respond to any of the questions that were
asked.
Senator Cruz. Was it a mistake?
Chair Durbin. I'm going to chair the Committee, Senator.
I'm sorry, you're not. I'm going to----
Senator Cruz. You said you'd allow him to respond. I've
repeated the question I asked, which is, was it a mistake to
send----
Chair Durbin. You----
Senator Cruz [continuing]. Twenty agents to arrest him at
the----
Chair Durbin. You had----
Senator Cruz [continuing]. Crack of dawn?
Chair Durbin. You had your time and more than any----
Senator Cruz. You just said you'd allow him to respond. You
just said, ``I'm going to allow him to respond to the
question,'' so I repeated the question. Was it a mistake?
Chair Durbin. You ask the questions----
Senator Cruz. That was the pending question.
Chair Durbin [continuing]. You want to ask. I'll ask the
questions I want to ask.
Senator Cruz. That's the question I had already asked.
Chair Durbin. Well----
Senator Cruz. You just said you'd let him respond.
Chair Durbin. I'm going to let him respond right now.
Senator Cruz. Good.
Chair Durbin. Please don't interrupt him. Thank you.
Attorney General Garland. Decisions about how to do
tactical arrests are made by the FBI agents in the field. The
FBI has publicly stated that it disagrees with the description
you gave of what happened in that example. I don't--I--that's
the best I can answer.
Chair Durbin. At this point, we're going to go to Senator
Ossoff.
Senator Ossoff. Thank you, Mr. Chairman. Attorney General,
good morning.
Last year, with Senator Grassley, I introduced and passed
into law bipartisan legislation that requires the DOJ and the
Bureau of Prisons to strengthen and upgrade security systems at
BOP facilities across the country. This includes the closed
circuit camera systems, public address systems, intercom
systems.
Through extensive investigation of failures at the BOP,
we've identified the inadequacies of these security systems as
posing a threat not just to inmates and staff, but to the
broader community. This implicates public safety.
And, indeed, we found that, at U.S. Penitentiary, Atlanta,
failures of systems like this one allowed widespread criminal
conduct within the facility, escapes from the facility, putting
the entire southeast region at risk. And that's in the words of
the BOP's own internal investigators.
Our bill is now law, and the Department has a deadline
upcoming next month to present a plan to Congress for upgrades
to strengthen these security systems at Federal prisons. So, my
first question for you, Attorney General, is whether the
Department is on track to meet that deadline.
Attorney General Garland. Senator, first I want to say
we're grateful for the work you and your Committee did on this
matter. And I know that you've met with the Director of the
Bureau of Prisons, who is adopting the recommendations that
you've made. I believe we are on track to satisfy the
requirements of the statute, but I'd be very happy to be sure
that she or our staff meet with your staff to ensure that your
expectations are being met.
Senator Ossoff. Well, thank you, Attorney General. And I've
worked diligently to develop the kind of trusting relationship
with the new Director. She has a task ahead of her to reform a
bureaucracy that's been mismanaged with significant human costs
as a result, long predating your tenure.
And I want to suggest that it's a necessary condition of
demonstrating that the Department's taking this seriously, that
this deadline be met and that we move forward expeditiously to
strengthen these security systems.
Remaining on the subject of conditions in prisons, the
Department announced in September of 2021 that it was
conducting a civil investigation, a pattern-of-practice
investigation into conditions of confinement in Georgia's State
prisons.
So, that was about 18 months ago. And the abysmal
conditions in Georgia's State prisons, which, as in the case of
Federal facilities, threaten public safety in the surrounding
communities and are a major public safety hazard--those
failures of management, in my view, in Georgia's State prison
system, are appalling. They're life threatening and have, I
believe, resulted in loss of life, and they undermine community
safety.
So, I want to ensure that the Department remains committed
to seeing that investigation through and bringing results that
can be made public and result in change.
Attorney General Garland. So, the Civil Rights Division is
charged with these pattern-of-practice investigations. They are
very committed to ensuring that the conditions are changed that
you're talking about. These pattern-of-practice investigations
normally do end in a public report to the State agency involved
and to the public at large. I don't know the specifics of how
this investigation is going, but I can assure you the Civil
Rights Division is fully behind this investigation.
Senator Ossoff. But the investigation is ongoing? It's
proceeding, and it's going to get a result. Yes?
Attorney General Garland. Yes.
Senator Ossoff. Thank you. An additional investigation I
led last year concerned the Department's implementation of the
Death in Custody Reporting Act. And one of the disturbing
findings was that reporting under this statute, known as DCRA,
had undercounted, by at least almost 1,000 deaths--the deaths
in State and local custody.
And in our engagements with the Department, it came to my
attention--and I was dismayed--that the Department is not
making DCRA data available to the public. I'm going to ask
unanimous consent, Mr. Chairman, that this report from the
Leadership Conference and POGO, titled ``A Matter of Life and
Death: The Importance of the Death in Custody Reporting Act,''
be entered into the record.
Senator Whitehouse [presiding]. Without objection.
[The information appears as a submission for the record.]
Senator Ossoff. And I want to ask you, Attorney General,
whether the Department will commit to making DCRA data
available to the public.
Attorney General Garland. So, first, on the first part of
your question, we're obviously having trouble getting full
reporting. This has to be voluntary on the part of the States.
I believe the statute did give us some appropriations which we
were able to use as incentives for more reporting. We're very
charged with the importance of doing that.
I have to say, I don't--I'm not familiar with the specifics
of DCRA. If it provides for public reporting of the numbers we
have, then we should be providing it. I don't know whether it
does or not. I just am not familiar with it at that level.
Senator Ossoff. You've got a lot on your plate, Attorney
General. I recognize that. This is a serious concern for me and
for the Senate. And I did not, after those investigations, come
away with the impression that there was sufficient attention at
a high level being committed to ensuring that this is being
fixed. So, will you commit to getting up to speed and taking
this matter personally into your portfolio?
Attorney General Garland. I will. You now have high-level
attention, if you didn't have it before.
Senator Ossoff. Well, I think--good. I think we should have
gotten that based upon the results of the investigation last
year. I appreciate that commitment today. This needs to be
fixed. Folks are dying in prisons and jails. The public needs
to know who's dying, where they're dying. You, at the
Department, need to know who's dying, where they're dying, in
order for you, for example, to bring the kinds of civil rights
enforcement that you're pursuing in Georgia.
Let's talk about domestic violence for a moment. The Crime
Victims Fund, as you know, is a critical resource for the
funding of domestic violence shelters, child advocacy centers,
and other nonprofits. And, you know, I'm hearing consistently
from providers of victim services in Georgia that awards from
this fund are still much lower than previous years, due to some
issues with VOCA reauthorization.
Will you work with my office and commit a member of your
team to meet with my staff, to make sure that we're identifying
every opportunity to increase the resources for victims and
survivors of domestic violence in Georgia and across the
country and that we are expediting the provision of those
resources? Because lives are literally on the line in my State
and nationwide.
Attorney General Garland. Yes, I will. The VOCA fix was
very helpful in allowing us to put deferred prosecution,
delayed prosecution, nonprosecution agreements into the VOCA
fix. We do, by the way, believe that we're on track to be
fiscally responsible all the way through 2024.
Senator Ossoff. Thank you. And with my colleagues'
indulgence, one final question for you. Senator Grassley and I
have introduced legislation again, this Congress--it passed the
Senate last Congress, we need to get it through the Senate and
the House, this Congress--to strengthen Federal protections
against the sexual abuse of children and to crack down on
predators who use online services to target children for
trafficking, for the production of child sex abuse material,
and other heinous crimes. We need to make sure that the law
keeps up with technology.
And we're seeing, in Georgia and across the country,
children are targeted routinely and exploited online. Will you
commit that----
Senator Whitehouse. If you could keep it brief, because
Senator Hawley and others are waiting.
Senator Ossoff. Thank you, Mr. Chairman.
Senator Whitehouse. Both you and the Attorney General.
Senator Ossoff. Will you commit to ensuring that this
remains a top priority for the Department of Justice?
Attorney General Garland. Yes, I will.
Senator Ossoff. Thank you, Attorney General.
Senator Whitehouse. Senator Hawley.
Senator Hawley. Thank you, Mr. Chairman. Attorney General
Garland, let me just ask you, does your Department have a
problem with anti-Catholic bias?
Attorney General Garland. Our Department is--protects all
religions and all ideologies. It does not have any bias against
any religion of any kind.
Senator Hawley. Well, you could have surprised me, because
given the resources that you are expending and the, apparently,
intelligence assets that you are deploying against Catholics,
it appears, and other people of faith, while simultaneously
turning a blind eye while people are executed gang style on the
streets of our cities, including in my home State, your answer,
frankly, surprises me.
Let's talk about the Mark Houck case, for example. You've
been asked about this already today, and frankly, your answers
really astound me. This is a case where a Catholic pro-life
demonstrator, father, was accused of disorderly conduct in
front of an abortion center. The local prosecutor, the
Philadelphia District Attorney, who is a Democrat, a liberal,
very progressive, declined to prosecute. There was a private
suit that got dismissed.
And then after all of that, your Justice Department sent
between 20 and 30 armed agents in the early morning hours to
the Houcks' private residence to arrest this guy, after he had
offered to turn himself in voluntarily.
[Poster is displayed.]
Senator Hawley. Here's the photo once again. You can see
the long guns. You can see the ballistic shields. You can see
that they're wearing bulletproof vests.
Why did the Justice Department do this? Why did you send 20
to 30 SWAT-style agents and a SWAT-style team to this guy's
house when everybody else had declined to prosecute and he'd
offered to turn himself in?
Attorney General Garland. Determinations of how to make
arrests under arrest warrants are made based--by the tactical
operators in the district. They are not----
Senator Hawley. But you've surely looked into it by this
point. Right?
Attorney General Garland. They----
Senator Hawley. You know the answer, surely.
Attorney General Garland. They----all I know is what the
FBI has said, which is that they made the decisions on the
ground as to what was safest and easiest. They----
Senator Hawley. So, you're----
Attorney General Garland [continuing]. Do not agree with
your description of what happened on the scene.
Senator Hawley. You don't agree with my description? I'm
pointing----
Attorney General Garland. I didn't say----
Senator Hawley [continuing]. Out what the photo is. There
are agents here who have long guns and ballistic shields.
Let's take a look at the hardened criminals that your
Justice Department sent these armed agents to go terrorize on
that morning.
[Poster is displayed.]
Senator Hawley. Here they are. Here they are at mass.
Here's the seven children with Mr. Houck and his wife.
In this early morning, they were all at home. Mrs. Houck
has said repeatedly the children were screaming. They feared
for their lives. You've got these agents demanding that he come
out. They've got the guns, she said, pointing at the house and
at them. He has offered to turn himself in. And this is who you
go to terrorize.
What's really interesting to me is this seems to directly
contradict your own memorandum about the use of force at the
Justice Department. You say officers may use only the force
that is objectively reasonable to effectively control an
incident. Are you telling me that in your opinion as Attorney
General, it was objectively necessary to use 20 or 30 SWAT-
style agents with long guns and ballistic shields for these
people?
Attorney General Garland. What I'm saying is that decisions
about how to go about this were made on the ground by FBI
agents.
Senator Hawley. You're saying you don't know?
Attorney General Garland. I'm saying what I just said, that
those----
Senator Hawley. Which is that you're abdicating
responsibility?
Attorney General Garland. I'm not abdicating
responsibility.
Senator Hawley. Then give me the answer.
Attorney General Garland. The----
Senator Hawley. Do you think, in your opinion--you are the
Attorney General of the United States. You are in charge of the
Justice Department, and yes, sir, you are responsible.
Attorney General Garland. The----
Senator Hawley. So, give me an answer.
Attorney General Garland. The FBI does not agree with your
description.
Senator Hawley. I'm not asking about the FBI. You are the
Attorney General. Give me your answer. Do you think that it was
objectively reasonable--and they followed your guidelines
[holds up documents] in sending 20 to 30 armed agents to
terrorize these people? Yes or no?
Attorney General Garland. The facts I have, which are those
presented by the FBI, are not consistent with your description.
Senator Hawley. So, you think it was reasonable?
Attorney General Garland. I'm saying the facts are not as
you describe.
Senator Hawley. What, that the children weren't there? That
there wasn't----
Attorney General Garland. No, the----
Senator Hawley. That there weren't long guns there?
Attorney General Garland. The facts----
Senator Hawley. That there weren't agents? What wasn't--
what do you dispute? What's the factual premise you dispute?
Attorney General Garland. The FBI----
Senator Hawley. Be specific.
Attorney General Garland [continuing]. Has said they don't
agree with your description of----
Senator Hawley. Be specific. They don't agree with what?
Attorney General Garland. Of how many agents, of the agents
who were there, and of what their roles were. They don't agree.
Senator Hawley. Do you know the jury----
Attorney General Garland. That's all I can say.
Senator Hawley [continuing]. In this case acquitted Mr.
Houck, as I'm sure you're aware. Do you know how long it took
them?
Attorney General Garland. I am aware, and we respect the
decision of the jury.
Senator Hawley. Do you know how long it took them?
Attorney General Garland. I don't know.
Senator Hawley. One hour. One hour. Philadelphia District
Attorney declines to prosecute. The private suit's dismissed.
You use an unbelievable show of force with guns that, I just
note, liberals usually decry. We're supposed to hate long guns
and assault-style weapons. You're happy to deploy them against
Catholics and innocent children? Happy to.
And then you haul him into court, and a jury acquits him in
1 hour. I just suggest to you that that is a disgraceful
performance by your Justice Department and a disgraceful use of
resources.
I notice a pattern, though. The FBI field office in
Richmond, on the 23rd of January of this year, issued a
memorandum in which they advocated for, and I quote, ``the
exploration of new avenues for tripwire and source development
against traditionalist Catholics''--it's their language--
``including those who favor the Latin Mass.'' Attorney General,
are you cultivating sources and spies in Latin Mass parishes
and other Catholic parishes around the country?
Attorney General Garland. The Justice Department does not
do that. It does not do investigations based on religion. I saw
the document you have.
Senator Hawley. What'd you do about it?
Attorney General Garland. It's appalling. It's appalling.
I'm in complete agreement with you. I understand that the FBI
has withdrawn it and is now looking into how this could ever
have happened.
Senator Hawley. How did it happen?
Attorney General Garland. That's what they're looking into.
But I'm totally in agreement with you. That document is
appalling.
Senator Hawley. I'll tell you how it happened. This
memorandum, which is supposed to be intelligence, cites
extensively the Southern Poverty Law Center, which goes on to
identify all of these different Catholics as being part of hate
groups.
Is this how the FBI, under your direction and leadership,
is this how they do their intelligence work? [Holds up
documents.]
They look at left-wing advocacy groups to target Catholics?
Is this what's going on? I mean, clearly, it is. How is this
happening?
Attorney General Garland. The FBI is not targeting
Catholics. And, as I've said, this is an inappropriate
memorandum, and it doesn't reflect the methods that the FBI is
supposed to be using--should not be relying on any single
organization without doing its own work.
Senator Hawley. Let me just ask you, as my time expires
here, a very direct question. How many informants do you have
in Catholic churches across America?
Attorney General Garland. I don't know, and I don't believe
we have any informants aimed at Catholic churches. We have a
rule against investigations based on First Amendment activity,
and Catholic churches are obviously First Amendment activity.
Senator Hawley. Well----
Attorney General Garland. But I don't know a specific
answer to your question.
Senator Hawley. You don't know the specifics of anything,
it seems. But apparently, on your watch, this Justice
Department is targeting Catholics, targeting people of faith,
specifically for their faith views. And, Mr. Attorney General,
I'll just say to you, it's a disgrace.
Chair Durbin [presiding]. Senator Coons.
Senator Coons. Thank you, Chairman Durbin. Thank you,
Attorney General Garland, for your leadership of the Department
and for testifying here today. I appreciate all you're doing to
restore to your order--excuse me, to restore to your office its
critical role in our constitutional order.
Violent crime is a concern many Members of both parties
have raised today in this oversight hearing. I just want to
share with you that my hometown of Wilmington, Delaware, which
had had a longstanding challenge with violent crime, and, in
particular, murders, saw significant decreases over the last
few years. Murders were down 58 percent in the past year, to a
15-year low. Shootings were down 30 percent. Robberies were
down 20 percent.
And in meeting with the mayor and chief of police recently,
when I spoke with them, they credited Federal and local law
enforcement partnerships, including, in particular, group
violence intervention strategies, as being central to their
successful efforts. Congress and the Biden administration have
together given $200 million to fund these programs for the
first time. Why do you think investments in things like violent
intervention strategies have been so effective?
Attorney General Garland. So, I appreciate your asking
that. I was just in St. Louis and East St. Louis to look into
the way in which these violence intervention strategies have
been effective. They are part of our whole-of-Department
approach to violent crime, which involves both law enforcement
and support for State and local law enforcement and grants to
State and local law enforcement, but also grants to communities
to prevent the violence in the first place.
There are many kinds of these community violence
interruption programs and intervention programs. They generally
rely on having credible messengers of people who the community
trusts for any number, a variety of reasons, who go into the
community, try to explain to the community that the police are
on their side, that they need to be witnesses, be supportive,
and to develop trust between law enforcement and the
communities. That's the bottom line of all this.
Senator Coons. That's certainly what we've seen in
Wilmington. And frankly, our chief of police just went to St.
Louis to be their new chief of police, and I wish him well.
I co-lead the Law Enforcement Caucus with Senator Cornyn of
Texas. One of the things we've recently been talking about is
the NICS Denial Notification Act, which Senator Cornyn and I
led last year, the President signed into law.
It requires Federal law enforcement to notify State and
local authorities when someone fails a background check, when
they lie and try to buy a gun. It's been in place since
September, and we've already seen 44,000 denial notifications
go to local law enforcement. Can you just speak briefly to the
value of this information for local law enforcement, to prevent
dangerous individuals from being able to acquire weapons?
Attorney General Garland. This particular example is really
the nub, here. Somebody who is not lawfully allowed to get a
gun, who goes to try to get one anyway--I'd say there is a
higher probability that person wants to do something nefarious
with that gun. And now, thanks to this legislation, the State
and local police will know about that and will be able to
investigate to determine what it was that person was about to
do with an unlawful weapon.
Senator Coons. It's something that the sheriffs and the
local chiefs in Delaware have been very excited about, and I
look forward to working with you to make sure that it's fully
and promptly implemented.
I am chairing the Intellectual Property Subcommittee of
this Committee in this Congress, and as you know, I'm very
concerned about the threat of foreign nations to our innovation
and our intellectual property.
I think it's important that our response to this is
coordinated across the whole Government, so I was glad to learn
about your collaboration with the Department of Commerce, in
particular on the Disruptive Technology Strike Force. Could you
just speak to your strategy, jointly with the Secretary of
Commerce, for protecting American innovation in coordination
with other agencies?
Attorney General Garland. Right. Well, on that particular
task force, it's very focused on new technologies, AI, for
example, very advanced microchips which could be very
dangerous, obviously, in the hands of an adversary, which are
being exported and are evading export controls.
So, we're working with the part of the Commerce Department
which enforces export controls and, on our side, on our
National Security Division, to identify these kinds of
transfers and to prevent them from happening.
You know, a very good example is what's happened on the
battlefield in Ukraine. We're getting some of the quadrocopters
and other kinds of drones, and even some of the missiles that
are landing in Ukraine turn out to have parts that came from
American manufacturers, and we have to find out how they were
able to evade our export controls.
Senator Coons. Well, thank you. I look forward to working
with you on that and to strengthening our protections for
copyright violation, patent, trademark, trade secret violation.
I've led, with Senator Wicker, now, for some time, a
bipartisan bill to address the counterproductive practice of
debt-based driver's license suspensions.
The county police department I had the opportunity to
supervise commented on a number of occasions, in the decade I
was in county government, that being essentially a collections
agency for the courts was the least constructive use of their
time, to have traffic stops really just based on an outstanding
request for a warrant or a request for police action based on a
failure to pay certain fines and fees.
Last year, Delaware took steps to repeal these suspensions
of driver's licenses and became a national leader on access to
justice for the poor. And I appreciate this administration's
work to restore the Office for Access to Justice, which
previously, under President Obama, had issued a best practices
letter on such fines and fees and how they impact those who
simply cannot afford to pay low-level fines.
Can you speak to your priorities for this office, the
Office for Access to Justice, and the opportunity it has to
help lead on fines and fees, whether by convening relevant
stakeholders or reissuing a best practices letter?
Attorney General Garland. Well, I'll start with the fines
and fees. I think the additional and maybe the most pernicious
aspect of taking away someone's license is then they can't be
employed. They can't go to their job, where they would make the
money necessary to repay the fines and fees. So, I know that's
an underlying basis of your concern and of the concern for
these statutes.
The Office for Access to Justice has been re-created. I've
appointed a Director. One of the things that the Office does is
serve as an organizing unit for the Legal Aid roundtable, which
has been reinvigorated across the Government for assistance,
for providing pro bono work and legal assistance for the poor,
who are otherwise unable to really do the most basic legal
tasks because they just can't afford it.
It's also the center of the Justice Department's own pro
bono efforts. Justice Department employees every day provide
pro bono legal services to help veterans fill out the necessary
forms, to help people with their wills, to help service members
with respect to their debts, and various other things. And
that's another organizing section of this Office.
Senator Coons. Well, thank you, Mr. Attorney General. I
look forward to working with you and with that Office. We were
just one vote shy of getting this bill into law at the end of
last year, and I look forward to partnering with you on finding
ways to reduce these driver's license suspensions and debt and
fee issues. Thank you, Mr. Chairman.
Chair Durbin. Thanks, Senator Coons. Senator Cotton.
Senator Cotton. Mr. Attorney General, I want to explore the
dangerous crisis at our southern border and your role in
causing that crisis. Asylum traditionally is reserved for
people who face things like religious persecution, persecution
for their political beliefs, or violence because of their race
or ethnicity.
In June of 2021, you changed the Department's asylum rules
so they could apply to individuals with significant gang
violence in their home country. Is that 2021 interpretation
still in place?
Attorney General Garland. It is. It reinstates a previous
interpretation the Department had had, of the same asylum
rules. Yes.
Senator Cotton. Okay. Do you know the most recent murder
rate in Honduras?
Attorney General Garland. I'm sure it's enormously high.
Senator Cotton. It's 36 per 100,000 people. What about
Colombia?
Attorney General Garland. I don't know.
Senator Cotton. Twenty-three per 100,000. Guatemala?
Attorney General Garland. Again, I don't know, but I
believe it's quite high.
Senator Cotton. Seventeen per 100,000. What about Mexico,
right across our southern border?
Attorney General Garland. I also think it's very high.
Senator Cotton. Twenty-eight per 100,000. So, I have to
say, since you rewrote the rules of asylum based on the
perceived degree of violence in these countries, I'm a little
surprised you didn't know those. But let's look a little bit
closer to home. Do you know the murder rate in New Orleans last
year?
Attorney General Garland. I don't, but I want to be clear.
This wasn't based on violence. This was based on threats
specifically to individuals, on gangs, where the country was
unable to protect the person. That's what it was about.
Senator Cotton. So----
Attorney General Garland. It wasn't about violence, in
general.
Senator Cotton. Well, okay. Well, you're partly responsible
for protecting Americans, so let's say Honduras' government can
protect its own people, except for 36 out of every 100,000, for
murders. Guatemala, 17 out of every 100,000. The murder rate in
New Orleans last year was 70 for every 100,000. What about St.
Louis?
Attorney General Garland. Again, it was very high, I think.
Senator Cotton. Sixty-eight per 100,000. What about
Baltimore?
Attorney General Garland. Also very high.
Senator Cotton. Fifty-eight per 100,000.
Attorney General Garland. Yes.
Senator Cotton. Should American citizens in places like New
Orleans and Baltimore and St. Louis begin to seek asylum in
countries like Honduras and Guatemala, under your asylum
principles?
Attorney General Garland. Again, I'm saying that the
principle here is protection of specific individuals who are
being threatened by the gang and where the local country is
unwilling or unable to protect them.
Senator Cotton. So, is the United States Government and the
city governments of St. Louis and Baltimore and New Orleans
unwilling or unable to protect its----
Attorney General Garland. I don't believe----
Senator Cotton [continuing]. Own citizens?
Attorney General Garland. I don't believe they're
unwilling. They are doing everything that they can. We're
supporting them in every way they can. The examples that you're
talking about are ones where they are unwilling to protect from
gangs.
Senator Cotton. So, Mr. Attorney General, one of the
reasons we have a crisis at our border, where we have illegal
aliens running to our Border Patrol, not away from our Border
Patrol, is this interpretation of asylum. That anyone,
anywhere, who lives in a dangerous or poor country can come
here and seek asylum as opposed to seeking it, as is
traditionally the case, for things like persecution on
religious belief or political practice.
But let's move on, Mr. Attorney General. I want to go
back----
Attorney General Garland. Okay. That's not the standard. I
want to be clear.
Senator Cotton. I want to come back to a question that
Senator Cornyn started. Your unprecedented memo in December of
2020 to direct your prosecutors not to pursue the most serious,
readily provable offense. I have gotten numerous, numerous
contacts in my office from your prosecutors who are shocked
that you have overturned this decades-long bipartisan standard.
You said this was about allocating resources. What resources
are you talking about?
Attorney General Garland. No prosecutor----
Senator Cotton. I----
Attorney General Garland. No prosecutor was directed to not
bring a case--again. In fact----
Senator Cotton. Your memo specifically says if they feel
that it's not warranted--or only if the other offenses are not
sufficient, they should not pursue what has been the standard
for decades.
Attorney General Garland. I'm well----
Senator Cotton. Generations of U.S. attorneys and their
assistants----
Attorney General Garland. I'm well aware of the standard
because I helped write the standard originally when the first--
--
Senator Cotton. Because it was a Carter----
Attorney General Garland [continuing]. Principles of----
Senator Cotton [continuing]. Administration standard.
Attorney General Garland. That's right.
Senator Cotton. Not specifically known for being tough on
crime.
Attorney General Garland. It--well, it was the first time
the principles of prosecution were reduced to a book which
explained what they were. It was included in it. Every
assistant U.S. attorney is able to use their discretion to
bring these kinds of cases. No one's being directed to not do
anything.
Senator Cotton. You specifically said that they should not
pursue the most serious, readily provable offenses in cases
where mandatory minimums are present because it's not
warranted. You specifically said that.
Attorney General Garland. But I said----
Senator Cotton. That's the law. What does manda--what does
mandatory mean?
Attorney General Garland. I'm trying to say that----
Senator Cotton. Does it mean that prosecutors get a choice
not to pursue it----
Attorney General Garland. The----
Senator Cotton [continuing]. And rewrite the law in that
way?
Attorney General Garland. The memorandum said that cases of
violent crime, which is specifically what you're asking me, are
ones where, in fact, it's most likely that they should be
bringing the highest and----
Senator Cotton. Is it----
Attorney General Garland [continuing]. Mandatory minimums.
Senator Cotton. Is it your assertion here that drug
trafficking is not a violent crime?
Attorney General Garland. No, and----
Senator Cotton. It's built on an entire foundation and
edifice of violence.
Attorney General Garland. Yes, and it includes an
exception, in the same memorandum we're talking about, for
significant drug trafficking as well as for violent crime.
That's right.
Senator Cotton. What--what--your specific answer, I wrote
it down here, I was so surprised by it. You said to Senator
Cornyn, ``This is about allocating resources.'' What resources
are we allocating?
If one of your assistant U.S. attorneys has some criminal
lowlife who could be charged with 12 offenses, but they don't
charge the 2 most serious, readily provable offenses because of
your memorandum, they're still charged with 10 offenses. They
have to go to grand jury, they have to go to trial, they have
to have a presentencing report, they have to have a sentencing
hearing.
How is that conserving resources, that you don't charge
them with the most serious, readily provable offenses that
would lock these lowlifes up for the longest time possible?
Attorney General Garland. The lowlifes that you're worried
about and have expressed worry about, the drug--large drug
traffickers, the violent criminals, they are to be charged to
the max.
Senator Cotton. I ask again, what resources were you
talking about? You said to Senator Cornyn, specifically, it was
about allocating resources. What resources?
Attorney General Garland. Those include our investigators
and how much we have to investigate in order to establish the
requirements for mandatory minimums, the prosecutors who have
to prove those cases, the judges who have to try those cases,
and the jails that have to hold those cases, those individuals,
for longer terms.
Senator Cotton. Well, if jails are--I don't see how jails
could be a problem. You only have 158,000 prisoners now. Ten
years ago, it was 219,000. Do you need more prisons?
Attorney General Garland. Well, I think that----
Senator Cotton. Senator Kennedy's an appropriator. I bet he
could get you more prisons.
Attorney General Garland. Well, I think many of the
Senators have complained that the jails are too filled, that
they're overcrowded, that we're not able to provide the level
of protection and security for guards and for prisoners that we
would like.
But that is not what this is about. Again, I want to be
clear. The memorandum was crystal clear that they are to charge
the most serious, provable offense in cases involving violent
crime and drug trafficking.
Senator Cotton. Okay, let's turn to another example of you
overriding Congress' will. Congress has repeatedly decided to
impose stiffer penalties for crack cocaine than powder cocaine,
done originally at the request of Members of the Congressional
Black Caucus, voted for by Senators like Senator Durbin, the
Chairman of this Committee. Ten years ago, they made changes to
that. They specifically kept the ratio higher, and they didn't
make it retroactive.
Now, you have directed your prosecutors, when they are
dealing with crack cocaine, to charge it as if it was powder
cocaine, something that this Congress has repeatedly refused to
do, which we refused to do as recently as December when Senator
Booker tried it on the floor and I blocked it. How do you
explain overriding Congress' decision on this distinction
between crack and powder cocaine to suit your own policy
preferences?
Attorney General Garland. The longstanding rule is that the
Department of Justice uses its discretion in which charges to
bring, regardless of which ones are available, which ones are
to bring--every bit of evidence we have is that there's no
difference between powder and crack. Governor Hutchinson
testified----
Senator Cotton. Those are legislative----
Attorney General Garland [continuing]. To that.
Senator Cotton. Those are legislative--those are
legislative decisions. Those are not prosecutorial decisions.
If this Congress wants to do it, maybe it will one day. Maybe
I'll be outvoted. But those are legislative decisions. Those
are not prosecutorial decisions.
You said at your confirmation hearing that you had to
follow the law as it was written, that the executive branch
could not rewrite the law. What you're doing is rewriting the
law. It's not a single prosecutor out on the front lines making
one decision. You're directing every Federal prosecutor to
override the law that has been written by Congress.
Attorney General Garland. Using our discretion as to which
charges to bring in which circumstances, which ones are
appropriate--that's what we're doing. That's the longstanding
history----
[Gavel is tapped three times.]
Attorney General Garland [continuing]. Of prosecutorial
discretion in the United States.
Chair Durbin. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. Mr. Attorney
General, aloha.
Attorney General Garland. Aloha.
Senator Hirono. As I've sat listening to some of the
questions, the phrase ``badgering the witness'' comes to mind.
But I commend you for the calm way that you have comported
yourself at this hearing.
You have been accused of selective prosecution around the
abortion issues. I want to note that since 1977, anti-choice
extremists have been responsible for 11 murders, 26 attempted
murders, 42 bombings, 194 arsons, and thousands of other
criminal incidents by anti-choice extremists.
And, of course, we should prosecute all violence and
threats of violence by those on both sides of the abortion
issue, but isn't it the case that our prosecutorial focus
should be on the most violent acts, Mr. Attorney General?
Attorney General Garland. I'll just say, look, we prosecute
without respect to ideology, but we do focus on the most
violent acts, the most dangerous actors, the cases that are
most likely to lead to danger to Americans. But we don't care
what the ideology of the person who is threatening that act or
who is taking that act. We will prosecute, regardless.
Senator Hirono. That is what I would expect of any Attorney
General who observes the rule of law and who abides by it,
regardless of whatever the religion, all of that. So, that is
what I expect from the Attorney General.
In the wake of the Supreme Court's, in my view, disastrous
ruling in Dobbs--because that ruling has led to fear and chaos
all across the country, and abortion is now a crime in over a
dozen States, but it is not a Federal crime--what affirmative
steps is the Department taking to ensure that States are not
infringing women's constitutional right to travel across State
lines for whatever purpose?
Attorney General Garland. We do not see anything in the
Dobbs case to suggest in any way that States can interfere with
travel between States. In fact, at least one of the Justices
made clear that that was not within the scope of Dobbs. And so
we are looking closely.
I'm not familiar with any State that has tried to
criminalize interstate travel, but if there were, we would make
the appropriate filings. We have supported the Veterans
Department and the Department of Defense in their policy
decisions to support people to travel out of State to receive
the necessary reproductive care.
Senator Hirono. Well, Mr. Attorney General, there are
people who are trying to make it ever harder for persons who
get pregnant in this country to be able to access abortion
services and other reproductive services.
In fact, we are awaiting a decision by a Federal judge in
Texas whether or not he should impose a national injunction on
the use of mifepristone, which is the drug that is most often
used for early stage abortion. It's also a drug that is used to
treat miscarriages in the early stages.
So, you have a Federal judge that is about to impose this
kind of an injunction. It would affect every State in the
country, including all those States like Hawaii, which was
among the first to decriminalize abortion. So, I would say that
the efforts do not stop there, so whatever you can do to make
sure that women in this country know that they can travel to
other States to get whatever services that they seek.
The Department awards billions of dollars in grants to
State, local, and Tribal law enforcement each year. The
Department also operates joint task forces and provides access
to forensic and surveillance resources. This sort of
collaboration can be good when put to good use fighting
criminals who prey on our communities.
But these resources could also be used against women
seeking reproductive care. I have just sent a letter to the
President expressing my concerns about the use of these Federal
funds by local law enforcement to basically hunt down women who
are seeking abortion. So, how is the Department working to
ensure that States and local partners do not use Federal
resources to enforce State laws restricting women's access to
reproductive care?
Attorney General Garland. On your first question, just to
be clear, we have filed in support of the FDA in the lawsuit--
mifepristone lawsuit that you're talking about, and we are
hopeful that the result will not be the one that you're
concerned--that you described.
Senator Hirono. Well, there was judge shopping, to make
sure that it's this particular Texas judge who would get this
case.
Attorney General Garland. We have--we have filed the
appropriate briefs----
Senator Hirono. Please respond.
Attorney General Garland [continuing]. In that case.
Senator Hirono. Thank you.
Attorney General Garland. On the second question, I
personally haven't looked into it. I don't know the answer to
that. So, if we could have some people in the Department get
back to your staff on that, I'd be happy to do that.
Senator Hirono. Thank you very much. With a perspective
that these kinds of Federal resources should not be used by
States to go after women who are seeking reproductive services,
I hope that is the perspective that you bring to the issue.
I want to get to the issue of domestic terrorism and white
supremacy. Last fall, our colleagues on the Homeland Security
and Governmental Affairs Committee released a report on the
Federal response to domestic terrorism.
In it, they noted that--I quote, ``National security agents
now identify domestic terrorism as the most persistent and
lethal terrorist threat to the homeland,'' end quote. They also
explained that, quote, ``This increase in domestic terror
attacks have been predominantly perpetuated by white
supremacists and anti-government extremist individuals and
groups,'' end quote.
This fits with a recent Department of Homeland Security
assessment that the country, quote, ``remains in a heightened
threat environment,'' end quote, and that some of the potential
targets include, quote, ``faith-based institutions, the LGBTQ
community, schools, and racial and religious minorities.''
Do you agree that white supremacist terrorists pose a
significant threat to our country and especially to racial and
religious minorities and the LGBTQ+ community?
Attorney General Garland. Yes. As the FBI reported in that
report you're talking about, racially motivated violent
extremists as a group are the most dangerous of the domestic
violent extremist groups, and within that, the white
supremacists are the most dangerous and most lethal. Yes.
Senator Hirono. So, what more can the Department do to
combat this rise in these kinds of domestic terrorist
activities?
Attorney General Garland. Well, we've allocated a
significant amount of resources for this purpose. Our--the
National Security Division has stood up a domestic violent
extremist unit to further track and try and interdict these
actions. The FBI is treating this with enormous seriousness of
purpose, and we are going to do everything we can to deter and
prosecute.
Senator Hirono. Thank you. Mr. Chairman, I think my time is
up. Thank you.
Chair Durbin. Thank you, Senator Hirono. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman. Thank you,
General, for being here. Good afternoon.
Attorney General Garland. Thank you.
Senator Kennedy. I read this somewhere. I don't remember
who said it, but--or wrote it, but I remember it. It was once
observed that a parent who stops loving their children--if a
parent stops loving their children, the children will not stop
loving the parent. The children will stop loving themselves. I
know we can agree that we should encourage parents to be
involved in their kids' lives.
Attorney General Garland. Absolutely.
Senator Kennedy. And I'm sure we can agree that we should
encourage parents to make their kids do their homework.
Attorney General Garland. Yes, although there's sometimes
some resistance to that.
Senator Kennedy. Right. Right. And to make sure they get
sleep at night so they can be ready for school.
Attorney General Garland. Yes.
Senator Kennedy. Here's what I'm--I've always been confused
about. Didn't you understand the chilling effect that it would
have to parents when you issued your directive, when you
directed your Criminal Divisions and your Counterterrorism
Divisions to investigate parents who were angry at school
boards and administrators during COVID?
Attorney General Garland. Senator, if you'd just give me a
moment to put the full context. I did not do that. I did not
issue any memorandum directing the investigation of parents who
were concerned about their children. Quite to the contrary.
The memorandum that you're talking about says at the very
beginning of the memorandum that vigorous public debate is
protected by the First Amendment. And the kind of concerns that
you're talking about, as expressed by parents, are, of course,
completely protected.
The memorandum was aimed at violence and threats of
violence against a whole host of school personnel. It was not
aimed at parents making complaints to their school board, and
it came in the context of a whole series of other kinds of
violent threats and violence against other public----
Senator Kennedy. Well----
Attorney General Garland [continuing]. Officials.
Senator Kennedy. Well, let's walk through this. Your
directive to your Criminal Division and your Counterterrorism
Division came in a response to a letter from the National
School Boards Association. Did it not?
Attorney General Garland. In part to the letter, and in
part to news reports of----
Senator Kennedy. Mm-hmm.
Attorney General Garland [continuing]. Violence and
threats----
Senator Kennedy. And----
Attorney General Garland [continuing]. Of violence.
Senator Kennedy [continuing]. And the National School Board
Association said these parents ought to be investigated under
the Patriot Act as potential domestic terrorists.
Attorney General Garland. And you'll notice, Senator, that
I said nothing like that in my----
Senator Kennedy. I understand, but----
Attorney General Garland [continuing]. Memorandum.
Senator Kennedy [continuing]. That's what the letter said.
Didn't it?
Attorney General Garland. There was a reference to that in
the letter----
Senator Kennedy. All right.
Attorney General Garland [continuing]. Something I disagree
with.
Senator Kennedy. And your employees helped them write the
letter. Didn't they?
Attorney General Garland. I don't know anything to suggest
that that's true.
Senator Kennedy. I think----
Attorney General Garland. No. I don't----
Senator Kennedy [continuing]. It is true.
Attorney General Garland. Well----
Senator Kennedy. And the White House helped them write that
letter. Didn't they?
Attorney General Garland. I don't--I don't know--I have no
knowledge about that, but certainly I don't know anything about
my employees----
Senator Kennedy. And so----
Attorney General Garland [continuing]. Helping write that
letter.
Senator Kennedy. So, you get this letter from the National
School Boards Association asking you to investigate parents,
that your employees helped write and that the White House
helped write, and you issue a directive to your Criminal
Division and to your counterintelligence--or Counterterrorism
Division to start investigating parents who are angry. What did
you think was going to happen?
Attorney General Garland. I say again, Senator, that I--
nothing in my memorandum says to investigate parents who are
angry. Quite the opposite. It says that the First Amendment
protects that kind of vigorous debate. The only thing we wanted
was for an assessment to be made out in the field about whether
Federal assistance was needed to prevent violence and threats
of violence.
Senator Kennedy. Well, one of your field off--that's not
the way your Department implemented your directive. One of your
field offices actually opened an investigation. You set up a
website and a hotline to report parents, and a----
Attorney General Garland. I----
Senator Kennedy [continuing]. State----
Attorney General Garland [continuing]. I don't think--we
didn't set up a specific hotline about this----
Senator Kennedy [continuing]. A----
Attorney General Garland [continuing]. This was a
reference----
Senator Kennedy [continuing]. A State Democratic----
Attorney General Garland [continuing]. To the FBI's
hotline.
Senator Kennedy [continuing]. Party official contacted you.
They said that some Republicans were inciting violence by
expressing public displeasure with school districts' vaccine
mandates. And one of your field offices opened an
investigation, which is a permanent part of their record.
Attorney General Garland. Senator, I don't know anything
about this specific thing that you're talking about. They used
to say----
Senator Kennedy. You really ought to----
Attorney General Garland. They used to say, in high school,
``This is going to be on your permanent record.'' I don't
believe there is any such thing with respect----
Senator Kennedy. Oh, I----
Attorney General Garland [continuing]. To this.
Senator Kennedy. I think there is at the FBI, General,
and----
Attorney General Garland. Well----
Senator Kennedy [continuing]. You and I both know there is.
There was a lady in--a mom in Michigan. She has a special needs
kid, and the kid was doing pretty well. And she got upset with
her local school board over its closures and virtual learning
policies, and she went to the meeting, and she made an
intemperate comment. She accused them of being a bunch of
Nazis. Why would the FBI open an investigation of her?
Attorney General Garland. And I don't know anything about
the specifics of the case, but accusing people of being Nazis,
while I find bad, is certainly not criminal. It's totally
protected----
Senator Kennedy. No----
Attorney General Garland [continuing]. By the First
Amendment.
Senator Kennedy [continuing]. I mean, I think----
Attorney General Garland. And I've said that over and over
again. This is not the first time we've----
Senator Kennedy. But that's not----
Attorney General Garland [continuing]. Discussed this.
Senator Kennedy. That's not what your Department did.
Attorney General Garland. Well, I--this is about the third
time I'm being asked about the same memorandum, and each time
I've said, and I hope that the Senators would go ahead and
advise their constituents in the same way, that this is not
what we do. We are not in any way trying to interfere with
parents making complaints----
Senator Kennedy. But----
Attorney General Garland [continuing]. About the education
of their children.
Senator Kennedy [continuing]. But don't you understand,
General--and I believe you, but don't you understand that this
looks like you were just giving in to the teachers' unions and
politicizing the disagreement, the honest disagreements? I
mean, we only--as a result of some of our school board
policies, we only experienced the largest learning loss for our
kids in modern history. Don't you think parents had a right to
be upset?
Attorney General Garland. Absolutely.
Senator Kennedy. Instead of--what is a--I mean, you
implemented--what's a threat tag?
Attorney General Garland. I didn't implement the threat
tag. What you're talking about there is a part of internal FBI
operations.
Senator Kennedy. Yes, you----
Attorney General Garland. As far as I can----
Senator Kennedy. You directed your folks, though, to open
threat tags on these parents----
Attorney General Garland. I didn't----
Senator Kennedy [continuing]. And investigate them.
Attorney General Garland. Yes, I did not direct that. My
understanding from testimony by the FBI is that when somebody
makes a complaint and it involves--if somebody gives a tip that
a school official is being threatened, then there's--in order
to look at trends, they mark it as a tip involving a school
official.
They make--they have the same set of threat tags with
respect to a complaint that suggests somebody is making a
threat against a Supreme Court Justice. These aren't
complaints. These are tips of violence or threats of violence.
Senator Kennedy. A threat tag on a parent for being
concerned at a school board meeting?
Attorney General Garland. It's not on the parent. It's not
on whoever--it's on to indicate that a threat was made against,
or at least alleged that a threat was made against a school
board member or a school official or a teacher or a school.
Some of these turned out to be bomb threats.
Senator Blumenthal [presiding]. Senator----
Attorney General Garland. So----
Senator Blumenthal. Senator Kennedy, we're going to have a
second round of questioning. On behalf of----
Senator Kennedy. I understand.
Senator Blumenthal [continuing]. Chairman Durbin, who has
gone to vote, I'm going to call on----
Senator Kennedy. You're blaming it on Durbin. I understand.
I apologize for going over.
Senator Blumenthal. I take full responsibility.
Senator Kennedy. Thank you, General.
Senator Blumenthal. Senator.
Senator Booker. Thank you, Senator Kennedy, for the grace,
and thank you very much for being here. I just want to confirm,
because I've heard some misstatements. Fentanyl is permanently
scheduled at Schedule II. Correct?
Attorney General Garland. Yes. The discussion is about
fentanyl analogues.
Senator Booker. So, let's go to fentanyl analogues.
Fentanyl analogues are scheduled now at Schedule I. They are
not expiring this year. Fentanyl analogues are Schedule II, the
expiration date for which is at the end of 2024. Correct?
Attorney General Garland. It might be the fiscal year. I'm
not sure exactly, but----
Senator Booker. But it's----
Attorney General Garland [continuing]. I believe----
Senator Booker [continuing]. In the year--it's not 2023.
It's at the end of the year 2024.
Attorney General Garland. Yes, I----
Senator Booker. Fiscal or not?
Attorney General Garland. I'm not exactly sure of the time.
I know that there's a short time on this, and we believe it
should be reupped.
Senator Booker. Okay. I want to jump into the Executive
order from President Biden on policing. It took really
important steps to ensure that Federal law enforcement agencies
are engaging in the best practices to make themselves and the
public safer.
Some of these policies the Department has adopted and is
making great progress on, including limitations on chokeholds;
guidelines for no-knock warrants, which is extraordinarily
dangerous for police officers themselves; and a cleaner
standard for the use of deadly force.
Even the Trump EO, though, included the need for us to have
a database that is, I guess, called an accountability database,
to serve as a repository for officer misconduct records within
the next 8 months, which is now this past January. Trump's
Executive order, which was issued in June of 2020, also
directed the Attorney General to create such a database to
collect this information. What's the status now on that?
Attorney General Garland. Yes, there's a working group run
by the Deputy Attorney General to stand this up. As you can
imagine, there are difficulties with respect to getting
reporting and also difficulties with respect to defining when a
determination has been made. But we are seized with this, and
we are working full speed ahead to get this done.
Senator Booker. I'm grateful and hope we can continue to
communicate on that. It's invaluable. And the EO directed you
to encourage State and local agencies to contribute to the
database. How's that going?
Attorney General Garland. Yes. We are--we have made
outreach to all the major law enforcement organizations who do
support this proposition. We are making outreach to State and
local law enforcement. We are making progress. I can't really
say more than that at this point, not because I don't want to
say, but because I don't know.
Senator Booker. Okay. The Biden administration, in
cooperation with the Congress acting in a bipartisan manner,
has put significant amounts of money into the COPS grant
program.
In fact, I think under the last Congress, it was one of the
highest amounts of money given to programs that help local
police departments. Really proud that President Biden did that.
I'm just curious what processes are in place to ensure that the
funds are being used for intended purposes? Does the Department
audit those grants?
Attorney General Garland. Yes. Whenever a Government agency
gives out grants, there's always a risk. And so we have pretty
tight--very tight auditing and review processes for these
grants.
Senator Booker. And do you have the resources you need to
adequately audit the grants, in your estimation, or is that
something that Congress might act to give you more resources
to----
Attorney General Garland. Well, I'm going to say again to
you what I've said before. Whenever anybody wants to offer me
more resources, I'm happy to have them. But I think we're
capable of doing what the Congress wanted us to do, with the
resources we have right now.
Senator Booker. I appreciate that wise response.
In December of 2021, you said the Department would exercise
its discretion to ensure that people released on home
confinement under the CARES Act would not unnecessarily return
to prison.
My experience--I've been visiting prisons since I was a law
student, and I usually go in and ask wardens, who are often
tough men and women who really are about the protection of
their officers, the community at large.
And I always ask, ``Are there people here that are a waste
of taxpayer money? '' And they will often tell me stories about
elderly folks, infirm folks, but here, now, we had a pandemic,
as you know, and there was a release program with really high
standards to meet for anyone being released. And I appreciated
your comments on this matter in the past.
I just want to ask, can you confirm that the Department
will not revoke individuals released under the CARES Act for
minor violations? We always know there are so-called status
violations, where somebody might cross a county line or do
something that is a technical violation, which is often minor.
They're not a threat to public safety.
Can you confirm, again, that the Department will not revoke
individuals that are released under the CARES Act for these so-
called status violations, once the public health emergency
expires?
Attorney General Garland. Yes. So, just to give the full
context, the CARES Act allowed us to put people in home
confinement who we ordinarily would not have been able to do
because of the length of time remaining on their sentence. A
question was raised whether those people would have to go back
after the expiration, which is now going to be in May, I
believe.
The Office of Legal Counsel, interpreting the statute,
found that they would not have to go back, that all that was
necessary was that the Attorney General put them into home
confinement--when I say the Attorney General, I mean the
Justice Department and the Bureau of Prisons--and that they
could remain, subject to what the normal rules are on having to
go back.
So, if somebody commits the kind of violations that would
normally require somebody to go back to prison from home
confinement, those would apply, but no special rules to people
who came under the CARES Act.
And let me also say, in support of what you said, there has
now been enough time to have statistical data on recidivism,
and it's found that the people out on the CARES Act--the number
of serious crimes committed is extremely tiny and not of
concern.
Senator Booker. All right. On July 16th--my last question,
my penultimate question. On July 16th, 2022, you said that the
Justice Department is examining marijuana policy and will be
addressing the issue in the days ahead.
And in October 2022, President Biden urged an expeditious
review of the schedule of cannabis and directed individuals
federally incarcerated for cannabis possession be expunged.
What is the current state of the review of cannabis at the
Justice Department, and when can we expect policy changes on
this important issue?
Attorney General Garland. I think everything that you said
is correct. The President commuted sentences, and this is still
working its way through the system to get the final
certificates of commutation, but that is accomplished.
The HHS is working on the question of scientific analysis
of marijuana, and within the Department we are still working on
a marijuana policy for the Department. I have to say that the
crack-powder thing came first in my list of things that had to
be done first, but that was accomplished, as you already know.
And I think that it's fair to expect what I said at my
confirmation hearing, with respect to marijuana policy, that it
will be very close to what was done in the Cole Memorandum--
Deputy Attorney General Cole in the Obama administration. We're
not--we're not quite done with that yet.
Senator Booker. Well, I'm very eager to hear more about
that, and I'm hoping that you can get that reviewed. They're
complicated policies, as more and more States----
[Gavel is tapped twice.]
Senator Booker [continuing]. Red and blue, are moving. It'd
be good to hear that as quickly as possible.
And I just would like you to respond, for the record, there
are some scurrilous statements out there that you're
dissatisfied with your chief of staff and would like him to be
replaced by his eldest son. So, if you could respond on the
record for me at some point about that.
Attorney General Garland. The only--the only bad mark in
his resume is that he worked for you once, so----
Senator Booker. Yes.
[Laughter.]
Senator Booker. Thank you, sir.
Chair Durbin [presiding]. Senator Blackburn.
Senator Blackburn. Thank you, Mr. Chairman. And Mr.
Attorney General, thank you for your time today.
Listening to the questions and the answers and your
responses, what is coming clear to me as I listen to this is
that, basically, in your DOJ, the Biden DOJ, there are two
tiers of justice.
There are one for people with conservative values, for
parents, for people of faith. And then there is another tier of
justice that applies to the Washington liberal elites,
political elites. And what I want to do is dig down a little
bit on how you and the Department have applied this
discretionary form of justice.
It's something that concerns Tennesseans, and when I'm
across the State--we have 95 counties. I visit each of them
every year. And, Mr. Attorney General, that comes up quite a
bit. Much of it has come up in relation to the Dobbs decision,
and the attacks and the violence there has increased from
groups on the far left. It has not increased from pro-life
groups.
And since the Dobbs leak, there have been 70 pro-life
pregnancy centers that were targeted. Only two of these
activists have been indicted. There are 25 individuals that
have been indicted under the FACE Act in just 5 months. So, you
see the disparity there.
I appreciate you said that most of these attacks are
carried out at night and that the protests take place during
the day. So, you say it's easier to identify and go after
people that are carrying out a peaceful protest during the day
rather than a firebombing at night. Is that correct?
Attorney General Garland. If I could just say I wish you
would assure your constituents in all the counties that the
Justice Department does not treat people in the way that----
Senator Blackburn. Okay.
Attorney General Garland [continuing]. Is described.
Senator Blackburn. Well, then, let's----
Attorney General Garland. We treat like cases alike. We do
not have one view for----
Senator Blackburn. Okay. Then let's talk about a specific
case in Tennessee, the Hope Clinic. Are you familiar with that?
Attorney General Garland. I'm not familiar with it,
specifically.
Senator Blackburn. Okay. The Hope Clinic for Women is a
pregnancy resource center in Nashville. And currently you have
gone out of your way to prosecute 11 individuals in Tennessee
under the FACE Act. And, are you aware that this clinic was the
subject of an attempted firebombing with a Molotov cocktail?
Attorney General Garland. So, we are very concerned about
these kind of firebombings, and I agree with you, they're
happening----
Senator Blackburn. Okay.
Attorney General Garland [continuing]. Around the United
States. The FBI has put its resources into this. We are
investigating it in every way. We've offered rewards for anyone
who has information.
Senator Blackburn. Then let's talk about how these groups
get classified. When we talked about the way parents of
children were treated and because they were concerned over what
was being taught in schools--Senator Kennedy just went through
that with you--you applied domestic terrorism as a term in
couching that activity.
Now, under Federal law which you have cited, this is how
you term domestic terrorism, and I'm quoting, ``activities that
involve acts dangerous to human life that are a violation of
the criminal laws of the United States or of any State.'' So,
under that definition, would you agree that firebombing a
crisis pregnancy center constitutes an act of domestic
terrorism?
Attorney General Garland. I would say yes, but I want to,
again, disagree with your earlier characterizations. There was
no memorandum about parents complaining to their school boards,
and there was----
Senator Blackburn. Well, I'm talking about bombing--
firebombing pregnancy centers now.
Attorney General Garland. I understand. And there was no
reference in that memo to using----
Senator Blackburn. So, you would agree that----
Attorney General Garland [continuing]. Domestic terrorism.
Senator Blackburn [continuing]. Bombing--firebombing a----
Attorney General Garland. Where it's a--yes. Firebombing
where----
Senator Blackburn. That that would be domestic terrorism?
Attorney General Garland. It's at least domestic violent
extremism.
Senator Blackburn. Okay. So, then, let's talk about the
far-left group Jane's Revenge, because they claimed
responsibility for that. They went so far as to spray paint
their name on the wall. So, do you intend to prosecute them?
Attorney General Garland. We intend, if we find them, to do
that. There is a----
Senator Blackburn. Oh, so you can't find them?
Attorney General Garland. If you have information about
those groups, we would----
Senator Blackburn. Well, that is----
Attorney General Garland [continuing]. Be happy to----
Senator Blackburn. That is your job----
Attorney General Garland. That's right, and we----
Senator Blackburn [continuing]. To go after----
Attorney General Garland [continuing]. Are putting heavy
resources into this. We have found a group----
Senator Blackburn. So, you would say----
Attorney General Garland [continuing]. That--that's----
Senator Blackburn [continuing]. They're a domestic
terrorist organization?
Attorney General Garland. I would say it depends on----
Senator Blackburn. Jane's Revenge.
Attorney General Garland. It depends on----
Senator Blackburn. Who took----
Attorney General Garland [continuing]. The people----
Senator Blackburn. Who took credit for this, spray painted
their name on the wall.
Attorney General Garland. We have----
Senator Blackburn. Let me----
Attorney General Garland. We have----
Senator Blackburn. Let me ask you a couple of questions
before my time runs out. We've talked a little bit today about
the targeting at the Justices' homes. Have you released any
type of memorandum that explicitly condemns the acts of
intimidation outside of the Supreme Court Justices' homes?
Attorney General Garland. I have directly instructed the
Marshals Service to send over 70 United States Marshals to
prevent acts of violence and threats of violence outside
those----
Senator Blackburn. Have you done a memo?
Attorney General Garland. I don't need to do a memo----
Senator Blackburn. Okay.
Attorney General Garland [continuing]. Because I spoke
directly to the marshals about this topic.
Senator Blackburn. All right. Have you watched any of the
footage of the protesters outside the Justices' homes?
Attorney General Garland. Unless I caught it on the news, I
haven't specifically watched it.
Senator Blackburn. Are you investigating any of those
individuals? You said, you know, you investigate protesters
because they do their activity in the light of day, and most of
the firebombings and things take place at night. But I would
think the FBI knows how to investigate crimes that take place
at night.
Attorney General Garland. As I explained, we've--our
principal responsibility here is to protect the lives of the
Justices. We've put United States----
Senator Blackburn. But you haven't watched any of that
footage.
Attorney General Garland. United States Marshals are on
scene, watching what happens on scene.
Senator Blackburn. Do you think that that any of those
individuals that were protesting at the Justices' homes were
there for any reason other than to try to intimidate the
Justices?
Attorney General Garland. The marshals' job is to protect
the lives of the Justices, and they will arrest people who they
think are threatening the lives of the Justices. That's their
job.
Senator Blackburn. Thank you, Mr. Attorney General. I have
to say, people in Tennessee talk a lot about their frustration.
They want to trust the DOJ. They want to be able to trust their
Government. They are very concerned about what appears to be,
by actions, two tiers of justice, and this is something that
they do not see as equal treatment under the law. Thank you,
Mr. Chairman.
Chair Durbin. Thank you, Senator Blackburn. Senator Welch.
Senator Welch. Thank you very much, Mr. Chairman. Mr.
Attorney General, I appreciate the work you've been doing on
election infrastructure and security.
We have our town meeting in Vermont next week. We're pretty
proud of that. You raise your hand and decide publicly how
you're going to vote, or you can do it privately.
And I just wanted to ask you about the Department of
Justice. You have taken important steps to protect election
workers and the right to vote, and that includes by
establishing the Election Threats Task Force. Let me ask you,
what steps did the Department take in the 2022 election to
defend our democracy in the election workforce, and are there
any lessons learned that can help us going forward?
Attorney General Garland. So, we have, as you note,
established an Election Threats Task Force aimed at
investigating threats against State and local election workers.
The FBI has been tracking those kind of threats that come in on
their tipline and making those investigations. There have been
a number of prosecutions and convictions regarding those
threats. I'm not sure if that fully answers the question, but
that's what we're doing.
Senator Welch. That's good. You know, there's--from here,
from time to time, there's threats to local election officials
that might happen in one State and then it might be another.
What things can you do to be helpful in responding to specific
threats against election workers?
Attorney General Garland. Yes. So, obviously, the first
line of defense are State and local law enforcement. What we
bring to this is a particular--both resources and legal tools
that can be used to track the use of the internet to make those
threats, emails to make those threats, text messages, telephone
calls to make those threats.
And that's a lot of what we do, is to help the State and
locals identify the source of those threats and then to go out
and knock on doors and investigate, you know, whether violence
was actually contemplated.
Senator Welch. And you have the resources that you believe
you need in order to make certain that our elections are safe
and sound?
Attorney General Garland. I think we have the resources
that we need to investigate these threats to the people who are
really the foundation of our democracy--volunteers, who are,
you know, running our elections. That's the way we do things in
the United States.
And, of course, State and local elected officials are also
being threatened, but so, also, are the volunteers who are
election judges, you know, put the ballots in the boxes, etc.
Senator Welch. All right. Thank you. The other area I
wanted to talk to you about was, broadly speaking, antitrust,
but specifically how it's impacting our healthcare system.
My view is that one of the big challenges we have with
affordable and accessible healthcare is the cost. And there's a
number of factors that are driving up the cost, and I think
that includes some anticompetitive activities.
For examples, you know, hospital consolidation is a big
issue. When you go to the hospital and you get one of those
bills, you just can't believe it. If you get out healthy, when
you get the bill you're going to be sick.
And consolidation of physician practice groups--Big Tech
and private equity--private equity companies bought up all of
these human resource companies when we had the need for these
visiting nurses and just exploded the rates, and it pulverized
the budgets of our small hospitals in rural America.
And just last month, The Wall Street Journal reported that
CVS would purchase primary care provider Oak Street Health,
broadening CVS's market domination as a parent entity and a
pharmacy benefit manager.
Now, I know you can't speak specifically about any
particular case, but there's a consolidation trend and market
power trend that I think is escalating these prices, to the
detriment of the taxpayer, to employers who are working hard to
provide employer-sponsored healthcare, and obviously to
individuals.
In the past year, the DOJ has taken steps to update its
antitrust guidance and has heard from patients and providers
and advocates about how to bolster antitrust enforcement.
I want to just give you an opportunity to tell us your view
on this and the role you see--the Antitrust Division of the
Department of Justice, making certain that we have competitive
pricing or trying to get some semblance of competitive pricing.
Attorney General Garland. I appreciate the question. We
have tried, since I've been Attorney General, to reinvigorate
the Antitrust Division to more urgently evaluate mergers and to
bring cases against exclusionary behavior by dominant firms.
Thanks to the Hart-Scott-Rodino merger filings fees
legislation that was passed, we now have more money that we can
use to build up again the resources of the Department.
As I mentioned earlier, I was stunned to learn when I came
to the Department that there were fewer lawyers and economists
in the Antitrust Division than there were when I first entered
the Justice Department in 1979. And you can imagine this----
Senator Welch. That's amazing.
Attorney General Garland. It's amazing, and particularly
when you think of how big the companies are now.
Senator Welch. Yes.
Attorney General Garland. So, we're doing two things in the
merger field, of course.
On the very large mergers, which are subject to Hart-Scott-
Rodino, we are doing a very careful scrub and making
determinations of whether we should challenge it.
But I think what you're talking about is also quite
important, which are smaller markets, but are still what
economists call relevant markets, where the price is affected,
regardless of whether it's a nationwide roll-up, if it's a
roll-up of healthcare providers in one entity and really the
only place that people who need healthcare locally can provide
it. So, we have brought and will continue to examine those
kinds of cases, as well.
You are--you know, the bottom-line theory about antitrust
is if there are multiple players in the market, they will
compete with each other and we will get the best pricing,
marginal cost being the price where it meets the supply curve.
But that's not the case where you have dominant firms where
there's only a few places to go. And in those situations, price
will almost always be above the competitive price.
Senator Welch. Okay. Thank you very much, Mr. Attorney
General, and thank you for your service on the bench before.
And, Mr. Chairman, I yield back. Thank you.
Attorney General Garland. Thank you, Senator.
Chair Durbin. Thank you, Senator Welch. You're the first to
do that. Senator Tillis.
Senator Tillis. I was actually going to thank Senator Welch
for that. I think, Mr. Chair, we probably ought to have 4-
minute rounds so we have a reasonable chance of them getting
done in 7 minutes.
General Garland, I guess I'm your ticket to lunch. I've
just got a----
Attorney General Garland. Oh, good.
Senator Tillis [continuing]. Couple of questions to ask
you. In your opening statement--I'm sorry I had to come in and
out. I wanted to spend most of my time in the hearing.
You have 115,000 people working in the DOJ, and I think
most of them are great people--purpose, service driven, and I
thank them for their work. But we're not all angels. We
probably have some that need to be held accountable.
And you made a comment about returning to some of the norms
that maybe have drifted, over time, or our focus on them. Can
you briefly describe to me a couple of those where you see
positive trending?
Attorney General Garland. Yes. I think the most important
is the principle that we treat like cases alike, that we don't
have one rule for Democrats or Republicans; rich, poor;
powerful, powerless; based on ethnicity.
Another important norm is that we decide our criminal
investigations and affirmative civil law enforcement
investigations without any interference from the White House
or, frankly, from the Congress, that these decisions are made
on the merits without any policy or political interference.
Senator Tillis. I think one thing that would be helpful for
you--I'm a data-driven person. I think one of the things that
would be helpful for you is to try, to the extent that you can,
to measure, you know, some of those, so that you come back
equipped with data to maybe refute some of the misconceptions
about your priorities.
I want to talk briefly about my favorite subject when I get
on law enforcement [holds up cell phone]. Have you seen the
3.12 march? All right, this is a sub-page.
Attorney General Garland. March 12th?
Senator Tillis. I'll shoot you a link. This is----
Attorney General Garland. Okay.
Senator Tillis [continuing]. A sub-page that's been out
there for a while. It's actually a sub-page from ActBlue, which
is the largest aggregation engine for many of my colleagues on
the other side of the aisle for hard-dollar contributions to
their campaigns, which I don't begrudge. We have an equivalent
platform.
What's notable about this is, this is still on the website.
They're trying to raise $1.312 million. They've already
received contributions. They keep it on the website.
And let me just tell you what the run's about. They say,
``Why 3.12 miles? Because 3.12 equals ACAB, and ACAB equals All
Cops Are Bastards.'' This is out there.
I wish--I know that the vast majority of my Democratic
colleagues do not embrace that. Some of them may.
But I think it's time to remove this website and to remove
this crap that they're trying to talk about law enforcement.
In 2020 and 2021, I introduced a bill called Protect and
Serve, and it was specifically focused on increasing penalties
for law enforcement officers who were assaulted or murdered.
Not getting into any sort of policy recommendations, but it
seems to me at a time when we're having dramatic reductions in
people willing to go into the academies, where we're seeing
mayors get elected out of office because of community safety
and maybe a little bit too much soft on law enforcement, and
when we demonize law enforcement, we are really hurting
ourselves.
I know the FBI is doing relatively well with recruiting,
but we're not doing well in local and State agencies. So, can
you see, with respect to the implementation--we've talked about
increasing penalties in other places. Can you talk to me about
the merits or concerns you would have if we're successful with
getting Protect and Serve passed this Congress?
Attorney General Garland. Every day I meet with law
enforce--our own law enforcement agencies.
Multiple times a year, I meet with the national leaders of
State and local law enforcement, police chiefs, sheriffs.
And multiple times during the year, I travel all around the
country to our U.S. Attorney's Offices, where I meet with the
State and local law enforcement agencies. They are the ones who
are on the front lines every day.
Senator Tillis. And they're getting killed.
Attorney General Garland. And, I should have added, I've
been to many memorials. I've been to all the memorials that
happen every year. I've sat--I've stood and sat at the bedside
of Federal law enforcement agents who've been shot. I've been
to a memorial for a Federal law enforcement agent who was
killed. I'm well aware of the risks that they run to protect
us. We are extremely supportive of law enforcement.
Senator Tillis. Yes, but what I'd like you to----
Attorney General Garland. Well----
Senator Tillis. I'm sorry to interrupt you.
Attorney General Garland. Yes. No, no.
Senator Tillis. It's not my style. But what I'd like to do
is really get some feedback. We are going to file the bill
again. We do have interest from the Democratic side. I'm always
interested in policy that makes it easier to implement.
So, we would like to get a commitment to take a look at
this and give us advice on things that could improve it or
potential unintended consequences.
Attorney General Garland. Abs----
Senator Tillis. I don't see any, but I would like to get
that commitment.
Attorney General Garland. Absolutely. We will be happy to
do that. I do want to say I agree with your problems about
recruitment and retention. That's why we gave out $100 million
under the COPS grant, just for that purpose. And we're going to
do another $200 million this coming year.
Senator Tillis. Now I want to talk a little bit about--I'm
going to submit some questions for the record on various topics
and look forward to your response.
But in my remaining time, I want to talk about the
implementation of the Bipartisan Safer Communities Act, or what
I think your Department--and I like the term--calls BSCA. I had
a discussion with ATF earlier this week, and, you know, it has
been described as a once-in-a-generation bill.
That bill went from the initial meeting that I attended to
the time that we were voting on the Senate floor in 30 days.
That required a lot of hands-on involvement by the Senate
Members on both sides of the aisle that brought that about.
What's very important to me, unless we want another
generation to pass before we're able to make reasonable
progress, is the implementation of this bill. I'm curious. I'm
not going to get into specifics because I think I'd rather do
it justice by just submitting them--questions for the record.
I want to know about States that have applied for and been
provided the Extreme Risk Protection Orders. It was very clear
that we wanted minimal standards for due process. We don't want
to reward States--and incidentally, there are red States and
blue States--that I don't think have adequate due process
protections for the person who may be denied their Second
Amendment rights.
So, we want to go through the grant streams, the approvals
that have occurred at that time, and whether or not it
satisfies the letter or the spirit, and the congressional
record that I'm very familiar with. It was last June that we
got it done.
I also want to compliment NICS with their implementation of
the enhanced background checks. We need to make sure that
they're following, again, the letter and the spirit of the law
with respect to the length of time and having a ``proceed''
presumption if we don't have meaningful information in the
first 3 days, and then the final ``proceed'' order in the next
10 days.
Trudy and the folks out at NICS have done a great job, and
we've found some really good outcomes from that, that we need
to share better with the public.
The last thing I want to leave you--I'm over time. I can't
believe it, Mr. Chair. The last thing I want to leave you with
is, I would like to get a breakdown of the 17 cases under the
straw purchasing and trafficking language in the bill.
And I'm particularly interested--I heard at least one
alluded to gang organization that it was brought up on. We need
to see that that bill, I think, is going to age well. That's
why I supported it, why I'd be willing to pursue other ones, as
long as I can go back to the people that I worked with to vote
for the bill and say that the spirit and the contours of that
legislation has been implemented faithfully. Thank you.
Attorney General Garland. I'll be happy----
[Gavel is tapped.]
Attorney General Garland [continuing]. To do that. I'll
have our staff talk directly with yours, to be sure we're
answering exactly the questions you're asking.
Senator Tillis. Thank you.
Chair Durbin. Thanks, Senator Tillis. We're going to take a
10-minute recess, and if there is to be a second round--and
that depends on the presence of Members when we return, and
they will be recognized in the order that they appear here.
I note that Senator Cornyn has got an early bird rule. But
let's take a 10-minute recess and come back.
[Whereupon the hearing was recessed and reconvened.]
Chair Durbin. The Committee will come to order. As I
mentioned at the outset, there's a second round of 3 minutes,
which will be strictly enforced. You will hear the gavel at 3
minutes.
I'm going to wait and save my questions to the very last.
And so I begin this round of questions--the second round of
questioning. Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman, and thank you
again, Attorney General. I'm going to go to a topic that was
addressed earlier by Senator Blumenthal and Senator Graham, and
that is the question of the freezing, seizing, and forfeiture
of Russian oligarch and kleptocrat assets.
One of the problems that we are running into is that, for
the highly valuable assets that can be seized from the Russian
oligarchs, like massive yachts or Faberge eggs, or other works
of very expensive art, the value is well above $500,000.
And right now, we have an administrative forfeiture
procedure that applies for assets that are valued only up to
$500,000. Above that, you have to go through a different
procedure.
The nutshell way that I think about this is that the
simpler administrative forfeiture procedure allows the
Government to proceed in rem against the asset, and people have
to show up if they have a claim to the asset. It's a little bit
like what the Department of Justice did with botnets.
They had a proceeding in rem against the botnet, and anyone
who laid claim to that botnet and asserted a right not to have
it taken down--they were welcome to show up in court and
present themselves. They probably would have gone off in
handcuffs, but they certainly had that right.
With respect to the assets above $500,000 that are
associated with the Russian oligarchs who are associated with
the really criminal war that Putin has launched into Ukraine,
we would like to see the law changed.
Senator Graham supports this. Senator Blumenthal and I
support this. We have legislation to support this.
And I just wanted to take my moment here with you to make
sure that you and I, the Marshals Service, your forfeiture
offices, are all properly aligned so that we can move quickly
to get this changed.
At the moment, having to identify the owner of an asset--
which is often hidden in Russian-nesting-doll layers of faraway
bank accounts, shell corporations, Cyprus holding companies--
really puts a major crimp in our ability to proceed fairly.
And I don't think there's any national interest or public
interest in having Russian oligarchs who've supported this war
treated better than American citizens, simply because their
assets are more valuable.
So, would you please tell your team to greenlight working
with us to get this bill passed quickly out of this Committee
and into legislation on the floor?
Attorney General Garland. As you can imagine, I'm
wholeheartedly in favor of the team working with you on this.
As you know, we recently, thanks to the work of the Congress,
were able--I was able to certify for transfer to Ukraine the
money that was seized from one oligarch, Malofeyev, and most
recently, our Task Force KleptoCapture succeeded in forfeiting
$75 million from Viktor Vekselberg.
They have done an enormous amount of work to find nesting
within nesting within nesting of shell corporations. It would
be easier if that weren't required. So, we'd be happy to work
with your team on this. Yes, of course.
Senator Whitehouse. Thank you very much. Thank you,
Chairman.
Chair Durbin. Thank you, Senator Whitehouse. Senator
Grassley.
Senator Grassley. Thank you, Mr. Chairman. Thank you,
General Garland, for being here.
My first question is a follow-up to a line of questioning
you had with Senator Cotton. You told this Committee that,
quote, ``the executive branch cannot simply decide, based on
policy disagreements, that it will not enforce a law at all,''
end of quote.
Then you released a December 16th, 2022, memo instructing
prosecutors to disregard the law that established sentencing
differences between cocaine and cocaine base. Your decision not
to enforce the law ended congressional discussions at that
particular point for a compromise.
If DOJ claims that it will ignore the law by declining to
prosecute a law that grew out of a bipartisan compromise forged
in this Committee, it's hard to see how Members can trust the
Department about following any further bipartisan deals.
So, I'm going to ask you, would you withdraw your memo so
that a meaningful legislative discussion can resume? And if you
don't have agreement with me, why wouldn't you do that?
Attorney General Garland. Senator, I want to be clear.
We're not, in any case, saying that we won't enforce the law.
In all the examples that we're talking about here, people are
being prosecuted for violation of the Controlled Substances
Act. It's only a question of what sentence we will seek, and
this has been a matter of prosecutorial discretion.
We do not in any way limit the judge. We have to honestly
tell the judge what the drug was and what the amount was, but
this goes to the question of what we will charge and seek. But
we are charging these people with violations of the Controlled
Substances Act.
Senator Grassley. On another point, the Department of
Justice charged Nicolas Maduro with narcoterrorism and drug
trafficking offenses, and the Office of Foreign Assets Control
sanctioned him.
Since then, the Biden administration has released $3
billion in foreign Venezuelan assets and authorized Chevron to
drill. Does the Department of Justice still consider Nicolas
Maduro a fugitive of U.S. justice? And, if so, do you commit to
diligently pursue his arrest?
Attorney General Garland. To be honest, Senator, I really
don't have any information. I know who Maduro is, obviously,
and I know that he was charged. I don't know what his current
status is. I'll be happy to look into that for you, though,
Senator.
Senator Grassley. Will you answer in writing?
Attorney General Garland. Of course. Of course.
Senator Grassley. Okay. This will have to be my last
question. I have strong concerns about competition problems in
different areas of the economy. Example, I've conducted
oversight and drafted legislation to address abuses in
pharmaceutical, agriculture, and high-tech industries. Can you
tell us what the antitrust priorities are for the----
[Gavel is tapped.]
Senator Grassley [continuing]. Justice Department under
your leadership? And are your resources following that
priority?
Attorney General Garland. Yes. So, our priority are both to
prevent increased concentration in industries that are already
concentrated. Agriculture is a very good example.
Pharmaceutical is another very good example--therefore to
closely look at the mergers and think--and to investigate them.
And our other priority, and closely related, is
exclusionary conduct by dominant firms. And we are doing quite
a bit of that kind of work, as referenced by some of the cases,
you know, we've filed. They're also--we're also looking at
criminal violations of the price-fixing statute, and others.
With respect to resources, this is an area where we can
always use more resources. We are faced on the opposite side
with companies with virtually unlimited resources.
I express gratitude for the Senate and the House for the
Hart-Scott-Rodino fees bill, Merger Fees bill, which has given
us more money to even up the playing field a little bit.
Chair Durbin. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Thank you, again,
Mr. Attorney General. I want to thank you for the supportive
comments you've made about the Open App Markets Act.
As you know, I'm hoping that the Department of Justice will
support us, because right now we have a duopoly in the mobile
apps stores--Apple, Google--and this measure would stop those
two companies from exacting rents and boxing out competitors.
I'm hoping that the Department of Justice will support this
measure.
Attorney General Garland. Well, as I said, Senator,
Assistant Attorney General Kanter has already testified in
support of the bill, so we hope to be able to get the
administration on board, as well. But he has already, and that
represents my views, as well.
Senator Blumenthal. Thank you. I want to talk about the
Foreign Intelligence Surveillance Act----
Attorney General Garland. Yes.
Senator Blumenthal [continuing]. Specifically Section 702.
Not exactly the topic of major inquiry here, but enormously
important.
Attorney General Garland. Yes.
Senator Blumenthal. And without going into any classified
information, that provision, I believe, was instrumental in
preventing major catastrophic aggression against our Nation and
also helping our allies, like the Ukrainians, with intelligence
that was extremely critical to pushing back the Russians and
knowing what they needed to know on the battlefield. Could you
comment on the importance of reauthorizing Section 702?
Attorney General Garland. Yes. Senator, this is a statute
that I wasn't--we didn't have, the last time I was at the
Justice Department, so I really didn't know what to expect when
I came in this time.
I will tell you that every morning I have an all-threats
briefing with the FBI, with an intelligence community briefer
with our National Security Division.
An enormously large percentage of the threats information
that we're receiving comes from 702 collection. All the
examples that you're talking about--Ukraine, threats by foreign
terrorist organizations, threats coming in from adversaries,
from China, from North Korea, from Iran, from Russia.
A lot of what we do in the area of cyber, and particularly
in ransomware investigations of finding out who is behind the
ransomware investigation and sometimes of obtaining the keys,
comes from information that is, at least, part fed by Section
702.
We would be intentionally blinding ourselves to
extraordinary danger, in my view. And this is not a view that I
jumped on--you know, I've always held. This is something I've
learned as I've been at the Department.
Senator Blumenthal. And blinding----
[Gavel is tapped.]
Senator Blumenthal [continuing]. Our allies, as well. Thank
you.
Attorney General Garland. Oh, yes, and our allies, as well.
Yes.
Chair Durbin. Senator Cornyn.
Senator Cornyn. General Garland, I'm sure you will agree
with me that the independence of the Federal judiciary is one
of the crown jewels of our form of Government. And
historically, Federal judges have had a hard time defending
themselves against attacks of various kinds.
And I just want to raise with you my concerns that we're
seeing not only attacks like those from former staffers of this
Committee who happen to now be on the outside, in special
interest groups, saying that now when reporters cover the story
of cases being decided by a judge, they ought to cite the
partisan affiliation of that judge, and saying that's it's
important to say, for example, it's not just Chief Justice
Roberts--or say that he's a Republican, not a conservative-
leaning Justice.
This is happening in the press. It's happening on social
media. As you've already discussed with some of my colleagues,
this has led to political protests at the Justices' homes and
even a threatened assassination of a member of the Supreme
Court of the United States.
But unfortunately, it's not just limited to the outside
partisan rabble rousers. It includes speeches made by United
States Senators on the floor of the Senate. Mr. Chairman, I'd
ask unanimous consent that a copy of this speech, dated
February 16th, be made a part of the record.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Cornyn. This is a speech by a United States Senator
trying to discredit a judge--happens to be in Texas, Matthew
Kacsmaryk, that Senator Cruz and I recommended and who was
appointed and now serves with lifetime tenure as a Federal
judge--calling him a lifelong right-wing activist, a partisan
ideologue, an anti-abortion zealot.
And he goes further to say that, regardless of how Judge
Kaczmarek may decide this particular case, that it will
inevitably be affirmed by the activist Fifth Circuit Court of
Appeals, and then surely rubber-stamped by the United States
Supreme Court.
I find this sort of rhetoric, particularly by a United
States Senator, to be appalling, and I wonder if you will join
me in condemning that sort of attack on the independence of the
Federal judiciary.
Attorney General Garland. When I first got on the
judiciary, I and several of my colleagues pounded our heads
against the wall, trying to get the reporters to stop--and this
is more than 25 years ago--to stop reporting the name of the
President who appointed us and the--or the party.
Unfortunately, this is a battle that has not been won and,
I don't think, obviously, given the authority of the First
Amendment and its importance, is one that we're not going to be
able to win. I come from a kinder and gentler era and a kinder
and gentler Court, even in terms of the way the members of the
Court treat themselves. I----
Senator Cornyn. But, General Garland, you are the----
Attorney General Garland. I don't know what else to say.
Senator Cornyn [continuing]. Chief law enforcement officer
of the United States.
Attorney General Garland. Yes.
Senator Cornyn. Will you condemn it?
Attorney General Garland. Yes, I am against divisive
rhetoric of all kinds, but I do not have authority in this
matter. As you know, the Speech and Debate Clause----
Senator Cornyn. You have--you have moral----
[Gavel is tapped.]
Senator Cornyn [continuing]. Authority.
Attorney General Garland. My moral authority is against
divisiveness from all sides and all quarters, and for all
arguments to be made on the merits. That----
Chair Durbin. Senator----
Attorney General Garland. That is my moral authority.
Chair Durbin. Senator Lee.
Senator Lee. That's the concern that I've got, is that you
don't seem to condemn the divisiveness if it's on the left.
I want to go back briefly to the text of Section 1507.
Section 1507 is pretty darn clear. I personally don't see how
anyone could protest outside the home of a Supreme Court
Justice, especially while engaging in issue advocacy related to
a case that they've taken or are currently hearing, that
doesn't violate 18 U.S.C. Sec. 1507.
So, the fact that you've put U.S. Marshals Service in
charge of protecting their homes--great. The fact that not a
single arrest has been made, not a single set of charges have
been made, is very disconcerting. As is the fact that even if
the marshals don't choose to make an arrest there, which is
stunning to me that they haven't--but even if they hadn't,
there's video footage. You can identify folks. You've proven
your ability to do that.
And the fact that you're not bringing that is deeply
disturbing to me, as it was when, on the day of the Dobbs
decision, the Department of Justice took what I believe was a
pretty unprecedented step of issuing a scathing statement, not
just saying ``we disagree'' or ``we're disappointed with the
outcome,'' but making arguments that I believe called into
question the legitimacy of the Court.
I have never seen the Department of Justice do that.
It is cause for additional concern when I see people like
Philip Esformes, having received clemency, is now having to
face the prospect of being prosecuted again after having
received clemency by a prior President.
Add all this up with the fact that, by the end of this
year, we're going to see the expiration of Section 702 of the
Foreign Intelligence Surveillance Act. The Department's already
asking and chomping at the bit to be asking us to simply
reauthorize that, notwithstanding the fact that there are all
kinds of examples of how this has been politicized, how Section
702 has been misused.
The current standard for a warrantless backdoor search of
the content of communications of Americans, American persons,
is ``reasonably likely to return evidence of a crime.'' But the
ODNI's recently declassified semiannual report, released on
December 21st of 2022, reports all kinds of noncompliant
searches.
These are just the ones we know about, just the ones that
the ODNI report was able to identify, involving U.S. persons,
including the searches of prospective FBI employees, members of
a political party, individuals recommended to participate in
the FBI Citizens Academy, journalists, and even a Congressman.
The politicization of the Department is a problem, and----
[Gavel is tapped.]
Senator Lee [continuing]. You can tell your Department not
a chance in hell we're going to be reauthorizing that thing
without some major, major reforms. Your Department is not
trusted because it has been politicized. I know you are a good
person. You have the ability to rein it in. I ask that you do
so promptly.
Chair Durbin. Thank you, Senator Lee. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. General Garland, the
Department of Justice should enforce the law regardless of
politics. I do not believe that has been what is happening, the
last 2 years.
Among other things, I believe you very much want to indict
Donald J. Trump. Toward that end, the Department of Justice has
leaked that DOJ is investigating and intends to indict Hunter
Biden. The purpose of those leaks, I believe, was to set the
predicate for an indictment of Trump, to say, ``Look how
evenhanded we are. We're indicting a Biden. We're indicting a
Trump.''
Those leaks are not law or enforcing the law. They are
politics. Did you know about the leaks about the Hunter Biden
investigation?
Attorney General Garland. I don't know about the leak that
you're talking about, and I'm not--leaks are in violation of
our regulations and our requirements, so the answer is----
Senator Cruz. But the leaks are consistently on one side of
the aisle, advancing one political agenda. As you know, the FBI
raided Donald Trump's Mar-a-Lago home, and subsequent to that
raid, there have been multiple leaks about what was discovered
there, including a photograph of documents that were discovered
there. Did you know about the leaks from that----
Attorney General Garland. The photo----
Senator Cruz [continuing]. Raid?
Attorney General Garland. The photograph was a filing in
court in response to a motion filed by Mr. Trump. It was not a
leak.
Senator Cruz. So, you're testifying there haven't been
leaks about the Trump raid and investigation?
Attorney General Garland. I'm responding to the point about
the photo----
Senator Cruz. Do you know about the leaks that have
occurred concerning the----
Attorney General Garland. I've read the leaks.
Senator Cruz [continuing]. Trump investigation?
Attorney General Garland. They are inappropriate. We also
don't know where they come from. Witnesses on the----
Senator Cruz. But what's interesting is, when the shoe was
on the other foot, I believe your intention, and I believe it's
a political intention to indict President Trump, became
infinitely harder when classified documents were discovered
repeatedly at President Biden's multiple residences.
According to the public record, those were first discovered
on November 2d, 6 days before the prior election. Department of
Justice was notified on November 4th, and yet, miraculously,
there was no leak about the classified documents at President
Biden's home.
When it politically benefited the effort to go after and
charge Donald Trump, DOJ leaked. When it potentially harmed the
Democrat President, DOJ did not leak. Does that strike you as,
at all, a double standard?
Attorney General Garland. Leaks under all circumstances are
inappropriate, and they were not directed by anyone in the
Justice Department.
Senator Cruz. Well, let me say, in particular on Hunter
Biden, I very much hope that an investigation of Hunter Biden
is focused not just on his own personal substance----
[Gavel is tapped.]
Senator Cruz [continuing]. Abuse issues but on connections
to his father and potential corruption. That is the matter of
public concern and why people are concerned.
And it was striking that the leak that came out from DOJ
suggested this is just going after some poor--poor person
struggling with drugs, instead of looking at the very real
evidence of corruption. Will you commit that the investigation
will actually examine the public corruption aspect and not
simply scapegoat Hunter Biden as an individual?
Attorney General Garland. I can't comment about the
investigation other than to say that all the matters involving
Mr. Hunter Biden are the purview of the U.S. attorney in
Delaware. He's not restricted in his investigation in any way.
Senator Cruz. Well, you don't----
Chair Durbin. Senator Hawley.
Senator Cruz [continuing]. Comment here, but then you leak
at the----
[Gavel is tapped.]
Senator Cruz [continuing]. Same time.
Chair Durbin. Senator Hawley.
Senator Hawley. Thank you, Mr. Chairman. Attorney General
Garland, you said in our last exchange that it's your practice
to defer to FBI agents in the field when it comes to
investigations, apprehensions of subjects. I was interested,
given your answer, to read in this morning's Washington Post
that the FBI is saying that you overruled them when it came to
raiding ex-President Trump's personal residence.
Washington Post reports this morning, ``Showdown before the
raid,'' that senior FBI officials who would be in charge of
leading the search resisted doing so as too combative and then
proposed instead to seek Trump's permission to search his
property.
These field agents wanted to shutter the criminal
investigation altogether in early June, The Post reports, but
they were overruled by main DOJ. So, I guess in light of your
earlier testimony just this morning, my question is, how often
do you overrule FBI field agents for political purposes?
Attorney General Garland. I've skimmed that article. That's
not--that's not an accurate reflection of what the article
says, and I'm not able to comment on the investigation. My
comment earlier was about tactics on the ground in particular--
--
Senator Hawley. Wait----
Attorney General Garland [continuing]. Cases.
Senator Hawley [continuing]. Wait, wait, wait, wait, wait,
wait. You said it's not--and I'm reading to you from the
article, quote, ``Senior FBI officials who would be in charge
of leading the search resisted the plan as too combative and
proposed instead to seek Trump's permission to search his
property, according to four people who spoke on condition of
anonymity to describe a sensitive investigation,'' end quote.
Attorney General Garland. Again, I have to say I'm not able
to describe the investigation. I will say, as a general matter
and at a high level of generality, that in my experience, long
experience as a prosecutor, there is often a robust discussion,
and in the end--and it's encouraged among investigators and
prosecutors----
Senator Hawley. Attorney General, my time is very----
Attorney General Garland [continuing]. And a decision is
made.
Senator Hawley. My--yes, and you made the decision.
Attorney General Garland. That's not----
Senator Hawley. Right? You said you did.
Attorney General Garland. No, I'm sorry. What I said was I
approved the decision.
Senator Hawley. So, you didn't make the decision----
Attorney General Garland. I approved----
Senator Hawley [continuing]. To raid----
Attorney General Garland. I approved the decision to seek a
search warrant after probable cause was found----
Senator Hawley. Overruling the FBI agents who did not want
to do so. Did you talk about this with the White House
beforehand?
Attorney General Garland. The memorandum does not--that
Washington Post article does not say what you're saying. I'm
sorry. And I'm not able to describe this in any further detail.
Senator Hawley. Well, I think given that, Mr. Chairman,
I'll just ask that this entire article be entered into the
record.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Hawley. And we can read for ourselves. I invite
people to go and look. It says exactly that FBI field agents
did not want to conduct the raid, and they were overruled by
DOJ.
So, it doesn't seem to me, Attorney General, that the FBI
has a lot of confidence in you, because what they're doing,
clearly, is trying to distance themselves from your decisions.
They're out there leaking left, right, and center, and saying,
``It wasn't us. We didn't want to do it. He made us do it.''
What's that say about their confidence in your leadership?
Attorney General Garland. Well, the previous Senator said
that they're leaking all in favor of the left. Now you're
saying they're leaking all in favor of the right.
Senator Hawley. I'm asking----
Attorney General Garland. I don't----
Senator Hawley [continuing]. You my question.
[Gavel is tapped.]
Senator Hawley [continuing]. Answer my question, based on
this evidence. Don't dissemble, Attorney General.
Chair Durbin. Time has expired.
Senator Hawley. Answer my question.
Chair Durbin. Time has expired. Senator Cotton.
Senator Cotton. Mr. Attorney General, I want to return to
the illegal protest outside of Supreme Court Justices' homes
last summer. It's plainly unlawful to protest outside of a
judge's home to influence the outcome of a pending case.
You testified earlier that as far as you know, no charges
have been brought against those protesters, but you never
really explained why. Why have no charges been brought against
those protesters?
Attorney General Garland. The decision about making arrests
is left to the marshals on scene. Their principal----
Senator Cotton. Marshals are--marshals are law enforcement
officials. They're not prosecutors. I did not say arrests. I
said charges.
Attorney General Garland. There can't be----
Senator Cotton. These people were not criminal masterminds.
Attorney General Garland. There has to be----
Senator Cotton. They posted videos of themselves on their
social media accounts. They advertised the protests in advance.
It is possible to arrest someone for an offense after the
offense has occurred. Is it not?
Attorney General Garland. It is, and we're----
Senator Cotton. Why did you not send anyone to arrest those
protesters in the days after the protests?
Attorney General Garland. We're allocating our resources
toward protecting the lives of the Justices and their families.
Decisions have to be made on the ground as to what is the best
way to protect those lives.
Senator Cotton. Mr. Attorney General, do you not think that
it would perhaps provide a deterrent effect if you arrested
some of these criminal protesters and charged them and threw
them in Federal prison?
Attorney General Garland. We are trying to protect the
lives of the Justices. That is our principal priority.
Senator Cotton. Again, I'm not----
Attorney General Garland. And----
Senator Cotton. I'm not saying----
Attorney General Garland [continuing]. I'm leaving it to
the Marshals Service to make determinations on the ground. They
have to make determinations about what they see on the ground.
Senator Cotton. Look, consider the efforts your Department
has put into tracking down everyone who was even on the Capitol
grounds on January 6th, 2021. You've dedicated a million of man
hours to study videotape, to do forensic analysis of computers
and devices, to go knock and conduct interviews.
You can't allocate just a few agents to look at people's
social media account, to say, ``They were present outside of a
Justice's home. We're going to go arrest them and charge them''
? It's a black-letter violation of the law.
Attorney General Garland. Our priority is violence and
threats of violence and protection of the lives of the
Justices, and that's what we're doing.
Senator Cotton. Again, these are not criminal masterminds.
They posted pictures and videos of themselves protesting. You
could probably go arrest one today from a cold start. Why can't
you do that?
Attorney General Garland. Saying again, our purpose is to
protect the lives and safety of the Justices. That's how we're
allocating resources.
Senator Cotton. You sent the FBI, as several Senators
pointed out, to do a early morning raid on Mark Houck's home,
in front of his children, for the grave crime of singing hymns
and saying prayers outside of an abortion clinic, charges of
which he was acquitted by a jury of his peers within an hour.
You can't send the FBI to track down anybody who was protesting
outside the home of a Supreme Court Justice?
Attorney General Garland. And I want to be clear. Our
purpose here is to protect the lives and safety of the
Justices.
Senator Cotton. I think the answer is----
Attorney General Garland. That's why we're doing that.
Senator Cotton. The answer is that you are sympathetic to
the protesters, that you didn't like the decision the Justices
were about to issue. I think we all know what you would do if a
bunch of conservative protesters were outside the home of a
Democratic-appointed Justice----
[Gavel is tapped.]
Senator Cotton [continuing]. To the Supreme Court.
Attorney General Garland. No one has ever been----
Senator Cotton. You're sympathetic----
Attorney General Garland [continuing]. Arrested under----
Senator Cotton. You're----
Attorney General Garland [continuing]. That statute----
Senator Cotton. It's a simple black-letter----
Attorney General Garland [continuing]. Under those
circumstances.
Senator Cotton [continuing]. Legal violation. You will not
send a single agent to conduct a single arrest and charge them
on something that they have zero defense for. It's because
you're sympathetic to left-wing protesters.
Chair Durbin. Senator Blackburn.
Senator Blackburn. Thank you, Mr. Chairman. And Mr.
Attorney General, I want to go back to what we discussed
earlier, with the two tiers of justice. And the answers you've
given us, you're very subjective in how you approach decisions.
You don't seem to be rules based in how you make these
decisions.
As a matter of fact, you come across as being very
political in the decisions that you make, and politicizing your
work is something that really offends most Tennesseans.
But I want to ask you about this two tiers of justice,
particularly in the way you've responded to congressional
oversight investigations.
The House Judiciary Committee recently requested that you
turn over documents relating to the special counsel
investigation of President Biden's mishandling of classified
documents, but your DOJ so far has stonewalled the House
request, claiming you can't turn over documents on an open
matter.
Now, let's compare that with your decision, obviously very
subjective, to fully cooperate with document requests from the
House January 6th Committee. Your FBI had no problem at all
turning over documents and information to that Committee, even
though they related to an open investigation.
Do you see this comparison here? Do you appreciate this?
This is a prime example of two tiers of justice, your two-tier
system, who you're going to cooperate with and who you are not.
So, why have you cooperated with the document requests that
were made from Democratic-led Committees, but you have refused
Chairman Jordan, and you have refused the House Judiciary
Committee when they are requesting documents that pertain to
President Biden's mishandling of classified documents?
Attorney General Garland. So, we greatly respect the
oversight responsibilities of the Committees of the Congress,
and at the same time, we have to protect our ongoing
investigations. I do not believe we turned over information to
the January 6th Committee about ongoing----
Senator Blackburn. Mr. Attorney General----
Attorney General Garland [continuing]. Investigation----
Senator Blackburn [continuing]. Your responses--you give
one set of responses for Republicans, another for Democrats.
You have one tier of justice for people that are conservatives
and another for those that are on the left.
You told me earlier that you didn't know who Jane's Revenge
is. They are all over Twitter. I'm going to do you a favor. I
am going to send you a letter with a whole lot----
[Gavel is tapped.]
Senator Blackburn [continuing]. Of Twitter and different
feeds to help you in that investigation for the Hope Clinic.
Chair Durbin. Thank you, Senator Blackburn. Senator Graham
has told me he's on the way, so I'm going to take my 3 minutes
now. Run the clock, please.
First, there was a reference made earlier to the drug war,
the war-on-drugs legislation of about 25 or 30 years ago. As a
Member of the House, I voted for it. It was an overreaction to
crack cocaine, a nominally new narcotic that scared us to
death. It was cheap, it was addictive, it was lethal and
heavily damaging. And we did what most people do in reaction to
such phenomena. We raised the penalty to an unimaginable
height. The sentencing penalty went from 1-to-1 to 100-to-1.
The net result is exactly the opposite of what we had hoped
for. The price of the drug on the street went down, the usage
went up, and we filled Federal prisons, primarily with African-
American prisoners. It backfired on us.
I don't want to make that same mistake, again, when it
comes to fentanyl. It's a deadly, dangerous situation. And I
hope that just the initial reaction of getting tough in
sentencing and mandatory minimums is not a sum and substance of
all that we do.
The second point I'd like to make is, it is interesting to
try to step back and follow what you face today, in terms of
the resources of the Government protecting elected officials.
When it comes to Supreme Court Justices, we hear from the other
side, ``You just didn't do enough. You've got to do more.'' And
I can understand that sentiment.
But when it comes to school board members, the fact that
you would send out a memo suggesting that they may be in danger
at a school board meeting has been translated into some
invidious diminution of the freedom of speech in this country.
I think you have to make a decision on a daily basis, as
Attorney General, where you're going to apply the resources of
the Government. I hope that you share, and I believe you do,
the bottom line that violence is unacceptable from either side,
politically, at any circumstance. And I think if we use that
standard and use it objectively, that it's going to be an
effective standard for the future.
The last point I'll make to you here should be said again.
It was said at the outset. You have authorized special counsel
to investigate the classified materials both at President
Biden's home as well as former President Trump's home, special
counsels that have some independence by their designation.
Could you explain why you did that?
Attorney General Garland. Yes, to the extent I've already
publicly explained why we appointed special counsel in those
two cases. With respect to President Trump, he had announced
that he was a candidate for President, and President Biden had
indicated that he would be a candidate.
I thought that's an extraordinary circumstance and well
fitting within the regulations to provide a level of
independence and accountability that fit within the purpose of
the special counsel regulations.
Chair Durbin. Thank you. I think I've just used my 3
minutes, so I'm going to try to set an example. Senator Graham,
take it away.
Senator Graham. Number one, you deserve a Purple Heart for
being here all day.
Attorney General Garland. Thank you.
Senator Graham. So, really, I've enjoyed working with you
and your team regarding Ukraine oligarch seizures, and I want
to compliment you. You all have done a really good job of going
after oligarchs, and hopefully we can seize some of their
assets and send it to the Ukrainian people.
And I want to help work with you as much as we can, create
some international tribunal to let Putin and his cronies know,
``You're going to pay a price here. There's no forgiving and
forgetting in this war. You picked a fight. You picked the
wrong fight.'' And they need to pay a price. Do you agree with
that?
Attorney General Garland. I do.
Senator Graham. Okay. Now, some areas of disagreement.
There are four States--Arkansas, Mississippi, South Dakota, and
Utah--and more are coming, that have enacted legislation that
regulates certain medical and surgical interventions on minor
children, 21, 18, whatever the State is, regarding transgender
surgeries and puberty-blocking medical procedures.
Your office wrote a letter, March 31st, 2022, to States,
suggesting that if a State passed a law saying, you know,
banning medical procedures to transition minor children, that
they may be running afoul--the State may be running afoul of
the Equal Protection or Due Process Clause of the Fourteenth
Amendment. Is that your position?
Attorney General Garland. So, the Department believes that
all people in the United States are entitled to be treated with
dignity and respect, that the situation that you're talking
about has to be evaluated by doctors, by families----
Senator Graham. Well, I mean, I----
Attorney General Garland [continuing]. By the individuals,
and they have to make those determinations.
Senator Graham. But States have passed laws. Okay? We have
50 States here. They have passed laws, and more are coming,
prohibiting this procedure because the State in question
believes that allowing transition medical procedures on a minor
is a life-altering event and it shouldn't be done until you're
older so you can really better appreciate what you're doing.
States have taken that view, and I think more of them will
take that view. Is it the position of the Department of Justice
that such laws are unconstitutional?
Attorney General Garland. The position is that categorical
across-the-board prohibitions on certain kinds of surgeries and
not others have to be evaluated on a case-by-case basis, and
the Civil Rights Division will do that with respect to each of
the laws that they are talking about when the time comes.
Senator Graham. Okay. So, the bottom line is, the four laws
in question--have you looked at the laws in Arkansas,
Mississippi, South Dakota, and Utah?
Attorney General Garland. I haven't. I don't know whether--
--
Senator Graham. Well, do me a favor----
Attorney General Garland [continuing]. The Civil Rights
Division has.
Senator Graham [continuing]. And just look at them and get
back to me and answer my question. Are they constitutional in
the eyes of Department of Justice? Thank you.
[Gavel is tapped.]
Senator Graham. I did it in 3 minutes.
Chair Durbin. Three seconds.
I appreciate the Attorney General appearing before the
Committee, and the record of the hearing will remain open for a
week.
Questions for the record may be submitted by Senators
before 5 p.m. on Wednesday, March 8th. Attorney General
Garland, please provide these answers on a timely basis.
With that, the hearing is adjourned.
[Whereupon, at 2:09 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Submitted by Senator Padilla:
The New York Times, article...................................... 283
Submitted by Senator Cornyn:
Wyden, Hon. Ron, floor speech.................................... 300
Submitted by Senator Lee:
Biggs, Hon. Andy, letter......................................... 311
Submitted by Senator Hawley:
The Washington Post, article..................................... 315
Submitted by Senator Ossoff:
Leadership Conference Education Fund and Project On Government
Oversight, report
https://www.govinfo.gov/content/pkg/CHRG-118shrg52249/pdf/CHRG-
118shrg
52249-add1.pdf
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