[House Hearing, 119 Congress]
[From the U.S. Government Publishing Office]
LEGISLATIVE REFORMS TO END LAWFARE BY
STATE AND LOCAL PROSECUTORS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION AND
LIMITED GOVERNMENT
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
TUESDAY, MARCH 4, 2025
__________
Serial No. 119-10
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
59-556 WASHINGTON : 2025
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COMMITTEE ON THE JUDICIARY
JIM JORDAN, Ohio, Chair
DARRELL ISSA, California JAMIE RASKIN, Maryland, Ranking
ANDY BIGGS, Arizona Member
TOM McCLINTOCK, California JERROLD NADLER, New York
THOMAS P. TIFFANY, Wisconsin ZOE LOFGREN, California
THOMAS MASSIE, Kentucky STEVE COHEN, Tennessee
CHIP ROY, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
SCOTT FITZGERALD, Wisconsin Georgia
BEN CLINE, Virginia ERIC SWALWELL, California
LANCE GOODEN, Texas TED LIEU, California
JEFFERSON VAN DREW, New Jersey PRAMILA JAYAPAL, Washington
TROY E. NEHLS, Texas J. LUIS CORREA, California
BARRY MOORE, Alabama MARY GAY SCANLON, Pennsylvania
KEVIN KILEY, California JOE NEGUSE, Colorado
HARRIET M. HAGEMAN, Wyoming LUCY McBATH, Georgia
LAUREL M. LEE, Florida DEBORAH K. ROSS, North Carolina
WESLEY HUNT, Texas BECCA BALINT, Vermont
RUSSELL FRY, South Carolina JESUS G. ``CHUY'' GARCIA, Illinois
GLENN GROTHMAN, Wisconsin SYDNEY KAMLAGER-DOVE, California
BRAD KNOTT, North Carolina JARED MOSKOWITZ, Florida
MARK HARRIS, North Carolina DANIEL S. GOLDMAN, New York
ROBERT F. ONDER, Jr., Missouri JASMINE CROCKETT, Texas
DEREK SCHMIDT, Kansas
BRANDON GILL, Texas
MICHAEL BAUMGARTNER, Washington
------
SUBCOMMITTEE ON THE CONSTITUTION AND LIMITED GOVERNMENT
CHIP ROY, Texas, Chair
TOM McCLINTOCK, California MARY GAY SCANLON, Pennsylvania,
THOMAS MASSIE, Kentucky Ranking Member
HARRIET HAGEMAN, Wyoming STEVE COHEN, Tennessee
WESLEY HUNT, Texas PRAMILA JAYAPAL, Washington
GLENN GROTHMAN, Wisconsin JOE NEGUSE, Colorado
MARK HARRIS, North Carolina BECCA BALINT, Vermont
ROBERT F. ONDER, Jr., Missouri SYDNEY KAMLAGER-DOVE, California
BRANDON GILL, Texas DANIEL S. GOLDMAN, New York
CHRISTOPHER HIXON, Majority Staff Director
JULIE TAGEN, Minority Staff Director
C O N T E N T S
----------
Tuesday, March 4, 2025
OPENING STATEMENTS
Page
The Honorable Chip Roy, Chair of the Subcommittee on the
Constitution and Limited Government from the State of Texas.... 1
The Honorable Mary Gay Scanlon, Ranking Member of the
Subcommittee on the Constitution and Limited Government from
the State of Pennsylvania...................................... 3
The Honorable Jim Jordan, Chair of the Committee on the Judiciary
from the State of Ohio......................................... 6
The Honorable Jamie Raskin, Ranking Member of the Committee on
the Judiciary from the State of Maryland....................... 7
WITNESSES
The Honorable George J. Terwilliger, Terwilliger Law PLLC
Oral Testimony................................................. 10
Prepared Testimony............................................. 12
Daniel Z. Epstein, America First Legal
Oral Testimony................................................. 21
Prepared Testimony............................................. 23
Elizabeth Price Foley, BakerHostetler, LLP
Oral Testimony................................................. 32
Prepared Testimony............................................. 34
Elizabeth Earle Beske, Professor of Law, American University
Washington College of Law
Oral Testimony................................................. 45
Prepared Testimony............................................. 47
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
All materials submitted by the Subcommittee on the Constitution
and Limited Government, for the record......................... 85
Materials submitted by the Honorable Mary Gay Scanlon, Ranking
Member of the Subcommittee on the Constitution and Limited
Government from the State of Pennsylvania, for the record
An excerpt from a Transcribed Interview of Steven D'Antuono,
pgs. 15-16, Jun. 7, 2023
An excerpt from a Transcribed Interview of Steven D'Antuono,
pgs. 74-77, Jun. 7, 2023
An article entitled, ``U.S. Attorney Rebuffed by Justice
Dept. in Push to Escalate Inquiry Into Schumer,'' Mar. 3,
2025, Washington Post
Materials submitted by the Honorable Daniel S. Goldman, a Member
of the Subcommittee on the Constitution and Limited Government
from the State of New York, for the record
An article entitled, ``U.S. Attorney Rebuffed by Justice
Dept. in Push to Escalate Inquiry Into Schumer,'' Mar.
14, 2025, The New York Times
A letter to the Inspector General Horowitz from Members of
Congress, Feb. 12, 2025
An article entitled, ``Who has Donald Trump threatened to
prosecute as president?'' Jan. 20, 2025, Reuters, submitted by
the Honorable Jamie Raskin, Ranking Member of the Committee on
the Judiciary from the State of Maryland, for the record
LEGISLATIVE REFORMS TO END LAWFARE BY STATE AND LOCAL PROSECUTORS
----------
Tuesday, March 4, 2025
House of Representatives
Subcommittee on the Constitution and Limited Government
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to notice, at 2:22 p.m., in
Room 2141, Rayburn House Office Building, the Hon. Chip Roy
[Chair of the Subcommittee] presiding.
Present: Representatives Roy, Jordan, McClintock, Massie,
Hageman, Hunt, Grothman, Harris, Onder, Gill, Scanlon, Raskin,
Cohen, Jayapal, Balint, Kamlager-Dove, and Goldman.
Mr. Roy. The Subcommittee will come to order.
Without objection, the Chair is authorized to declare a
recess at any time.
We welcome everyone to today's hearing on Legislative
Reforms To End Lawfare. I will now recognize myself for an
opening statement.
Welcome. We are here today to discuss potential legislative
reforms to end lawfare by State and local prosecutors. Rather
than debating political opponents on substance, my colleagues
on the other side of the aisle thought they could win the 2024
election through the use of partisan lawfare tactics.
Lawfare has been defined as, quote, ``the strategic use of
legal proceedings to intimidate or hinder an opponent.''
Lawfare violates the fundamental mission of prosecutors. A
prosecutor's job is to do justice. As a former Assistant United
States Attorney, I made it my duty to uphold the law with
fairness on those I charged, making sure their civil liberties
were kept intact. Additionally, when I was a prosecutor, I
methodically ensured the cases that were brought before me
would not fall to political pressure or succumb to outside
influence, especially to score cheap political points. Every
American deserves to have a justice system that is divorced
from the political whims of elected officeholders, political
parties, and personal vendettas.
In their political pursuit of President Trump, however, we
saw State and local prosecutors abuse professional norms in
favor of achieving indictments against their target. Prior to
the 2024 election, President Trump was criminally indicted four
times. Let's take a quick look at the State and local lawsuits
brought against President Trump.
First up, Fulton County. Georgia District Attorney Fani
Willis' 41-count indictment against 19 defendants, which
included President Trump, his attorneys, his former White House
Chief of Staff, and a former Justice Department official. The
politicized nature of this prosecution is hard to ignore. A
mere four days before the indictment, DA Willis launched a
campaign-fundraising website highlighting her investigation
into President Trump. Though DA Willis' investigation was first
reported in February 2021, it was not until President Trump
announced his candidacy that she brought charges. Later, DA
Willis requested that the trial begin on March 4, 2024, the day
before Super Tuesday and just eight days before the Georgia
Presidential primary.
To charge President Trump and his codefendants, DA Willis
used a broad interpretation of Georgia's RICO law, which is
intended to be used to prosecute criminal enterprises that
infiltrate legitimate businesses and use interstate commerce.
For background, RICO statutes are used to prosecute organized
crime mob bosses, street gang leaders, and other crime
syndicate heads, not typically elected officeholders on absurd
charges.
Prior to indicting President Trump, she coordinated with
Special Counsel Jack Smith and the partisan January 6th
Committee. Her lead prosecutor, Nathan Wade, met with the
Biden-Harris White House on multiple occasions.
Then, we have New York Attorney General Letitia James, who
has made her disdain for President Trump well known. When she
ran for New York Attorney General, she made many personal
attacks against President Trump, calling him things like con
man, carnival barker, and even an illegitimate President. As
soon as she took office, AG James began investigating President
Trump. In September 2022, she sued the President, alleging that
he and his company had committed fraud to inflate the value of
his properties.
Now, let's turn to Manhattan District Attorney Alvin Bragg,
who indicted President Trump with 34 counts of falsifying
business records which was tied to an unknown Federal crime
which aggravated the charges to felonies. The Manhattan
District Attorney's Office had been investigating President
Trump since 2018, but it wasn't until after President Trump
announced he was running for President in late 2022 that Bragg
elected to resurrect the zombie case against President Trump.
Who did he bring on to help this politicized investigation?
Bragg hired senior Biden-Harris Justice Department official,
Michael Colangelo, to jump-start his office's investigation of
President Trump, reportedly due to Colangelo's, quote,
``history of taking on Donald J. Trump and his family
business,'' while working for the New York Attorney General's
Office.
One should be equally concerned if it were a Republican
District Attorney engaging in this conduct toward a former
Democrat President, Cabinet Secretary, or White House official.
These prosecutions are precisely what former Attorney
General Robert Jackson warned us about. Attorney General
Jackson warned about the most dangerous power of the
prosecutor, quote,
That he will pick people that he thinks he should get rather
than pick cases that need to be prosecuted. It is here that law
enforcement becomes personal, and the real crime becomes that
of being unpopular with the predominant or governing group,
being attached to the wrong political views, or being
personally obnoxious to or in the way of the prosecutor
himself.
That is precisely what we have here.
This is why Congress must address Democrats' lawfare
efforts by popularly elected State and local prosecutors
against Federal officials. In fact, many of my Democratic
colleagues on this Committee are vocal proponents of a fair
criminal justice system, calling an end to perceived needless
instances of overzealous prosecution, wrongful arrest, and
detention and limiting incarceration overall. What better way
to achieve these goals than engaging in this hearing to uncover
possible missteps by State and local justice systems and
ushering legislation to rectify these glaring blind spots.
Current law does not adequately protect Federal officials
from rogue State and local attorneys who stack unwarranted
charges against their political opponents. Under current law,
the option to remove civil or criminal cases from a State Court
to a Federal Court is limited to Federal agency officials and
legislative and judicial officers.
Our colleague on the Judiciary Committee, Congressman Fry,
has a bill that would fix this problem. The Promptly Ending
Political Prosecutions and Executive Retaliation Act of 2025 is
designed to protect our Nation's leaders from lawfare tactics.
This bill gives both current and former Presidents of either
party, Vice Presidents, and Federal officials the ability to
remove civil and criminal cases against them from a State Court
to a Federal District Court. The bill also codifies the
immunity recognized by the U.S. Supreme Court for official acts
carried out by a Federal official.
This bill should not be misconstrued as a get-out-of-jail-
free card. Far from it. It should be an opportunity for
individuals to have a shot of nonpoliticized due process
experience. Make no mistake. If a Federal official were to
commit theft, fraud, assault, or other crime, they should be
held accountable regardless of political party or policy views.
This bill introduced should be welcome by both parties as no
individual acting within their duties should be sought after
because of whom they work for or their political leanings.
I'm looking forward to discussing that particular bill as
well as the need for legislative fixes in this space today. I
want to thank all our witnesses for being here today. We look
forward to your testimony and the robust conversation on how we
can move forward and fix this problem.
I now recognize the Ranking Member, Ms. Scanlon, for her
opening statement.
Ms. Scanlon. Thank you.
I would like to welcome our witnesses here to the
Subcommittee on the Constitution, but it's a little hard to do
so when this Committee and apparently the entire House Majority
seems to have lost their way and forgotten the basic terms of
that Constitution. Instead of acting as a coequal branch of
government as designed by our founding document, this House
Majority is content to abdicate Congress' authority to make and
fund laws to a would-be dictator and his billionaire tech bro.
Speaker Johnson and House Republicans have gone along with
White House efforts to gut basic services that Americans rely
on, whether at the VA, Social Security Administration, or the
National Institute of Health, and they've teed up huge cuts to
Medicaid, SNAP, and more, all so they can give more tax breaks
to their billionaire buddies that will explode our national
debt. Instead of lowering costs for American families, they've
encouraged the President's tariff wars that are already driving
up inflation and tanking the stock market.
The bills our House Republican colleagues are filing and
bringing to the floor are an embarrassment. They're seemingly
engaged in a contest of who can debase and subjugate themselves
to the President the most, with measures like adding Trump's
face to Mount Rushmore, designating his birthday as a national
holiday, and printing $250 bills with his portrait on them,
which brings us to the bill that forms the basis for today's
hearing.
It's another attempt to refashion the rule of law to
flatter a narcissist and felon in chief. We know that because
it was first introduced last term to benefit one man and one
man only, Donald Trump, as he faced 34 felony convictions in
New York, a criminal case in Georgia, and hundreds of millions
of dollars in civil judgments all in State Courts.
This legislation appears to be an unconstitutional power
grab by the Federal Government and a direct infringement on
State sovereignty that would upend the Framers' carefully
calibrated balance of power between what are supposed to be two
equal sovereigns.
In their shameless quest to help Donald Trump and his
cronies evade justice in our State Courts, Republicans would
have Congress exceed the scope of its authority and grant
Federal jurisdiction over a host of State Court cases. For all
their talk about federalism, it begs the question: Is there any
fundamental principle that House Republicans are not willing to
abandon in servitude to this President?
The bill before us, the so-called Promptly Ending Political
Prosecutions and Executive Retaliation Act, amends 28 U.S.C.
1442, the Federal officer removal statute, and other provisions
related to the removal of cases from State to Federal Court.
Under Section 1442, a Federal officer can remove a State
criminal or civil matter to Federal Court if the case relates
to acts taken, quote, ``under control of the office,'' meaning
that the Federal officer was acting within the scope of his or
her official duties. As a statutory and Constitutional matter,
the party seeking removal bears the burden of showing that a
case falls within the Federal Court's jurisdiction.
Under the Supreme Court's decision in Mesa v. California,
removal is not permissible to absent a colorable Federal
defense. The Federal officer removal statute is intended to
prevent Federal officers from being improperly punished for
carrying out their duties. It's not a license for them to go
around doing whatever they want with no accountability.
While I'll leave the point-to-point analysis of this bill
to our expert witness, Professor Elizabeth Beske, I will
highlight that this bill is troubling for a few reasons.
First, it would allow any former Federal official to remove
State cases for acts taken under color of office. More
concerningly, the bill would allow a sitting or former
President or Vice President to remove cases for or relating to
any act while in office, even ones that involve their personal
private conduct unrelated to their official duties.
It seeks to provide immunity for the President, Vice
President, and political officers under a misguided
understanding of the Supremacy Clause and effectively flips the
normal presumption against removal to a presumption in favor of
it. In other words, this bill goes a long way toward enshrining
in American statute the idea that we're ruled by a king who's
above the law.
Overall, this bill is unjustified, unworkable, and
misguided, especially for the time we find ourselves in. Rather
than admit that the legislation they proposed is blatantly
unconstitutional, our Republican colleagues have tried to
characterize it as a response to politicized law enforcement
leveled at Mr. Trump and his allies. In fact, the Chair just
tried to describe the bill under consideration as an effort to
ensure that all Americans enjoy a justice system free of
politicization.
As is so often the case, Republican accusations are
frequently confessions. If our Republican colleagues want to
talk about politicized law enforcement, let's have at it,
because we don't have to go any further than right here in our
Nation's capital to find the most egregious examples and in
just the past six weeks.
Donald Trump's Department of Justice has fired hundreds of
career prosecutors and FBI agents for doing their jobs without
fear or favor. He has targeted those who helped investigate and
prosecute the people who violently attacked the Capitol on
January 6th, while also pardoning 1,500 of his MAGA followers
who rioted and injured hundreds of law enforcement officers
that day. In doing so, he put his Presidential seal of approval
on political violence, so long as it supports him. His
Department of Justice has made corrupt quid pro quo deals,
dropping Federal corruption charges against Eric Adams in
exchange for the mayor's agreement to his political agenda.
In just his first 44 days in office, Donald Trump's made
his cynical vision of government clear. He's wasted no time
using the power of the Presidency to silence the people whose
job it is to hold him and his billionaire buddies accountable
by firing at least 17 inspectors general, making it harder for
the truth about fraud and abuse in our government to be
exposed, and effectively ending investigations into fraud and
abuse by--you guessed it--Elon Musk and the members of the
Trump White House.
He's moved to take control of independent agencies designed
to hold the powerful accountable, like the FEC, CFPB, and SEC,
and using the FCC to go after broadcasters that produce content
that the President doesn't like.
This President has undermined the power of the people and
this Congress--something everyone in this room should be
outraged by refusing to faithfully execute the laws that this
body has passed and the money that we've appropriated, and is
attempting to unilaterally dismantle programs and entire
agencies that Congress created and only Congress can eliminate.
This is all happening every day out in the open. Condemning
these blatant abuses of power is not the conversation our
Republican colleagues want to have. Since the day he took
office, Donald Trump has trampled on the rule of law that forms
the very foundation of our democracy, using the power of the
Presidency to demand vengeance and unquestioned loyalty. He's
undertaken politically motivated legal actions against his
perceived enemies. If you want to talk about lawfare, that's
lawfare right there.
Our Founders designed a democratic Republic built on the
rule of law, not the rule of a king. As this administration
tests that fundamental principle, it's counting on our
Republican colleagues to be too weak and cowardly to stand up
to it. Thus far, that's true. We took an oath to preserve and
protect the Constitution. That's our duty as Members of
Congress, and that's what my Democratic colleagues and I plan
to do.
I yield back.
Mr. Roy. I now recognize the Chair of the Full Committee,
Mr. Jordan, for his opening statement.
Chair Jordan. Thank you, Mr. Chair.
Lawfare is real. It's as real as it can be.
On November 15, 2022, President Trump announces he's
running for office. Three days later, Attorney General Garland
names Jack Smith as Special Prosecutor. Now, I understand
that's Federal and we're focused on State and local prosecutors
here, but it's lawfare nonetheless.
A few months after President Trump announced he's running
for office, Alvin Bragg brings a case against President Trump,
a case that his predecessor said wasn't there, a case that the
Fed, the Southern District of New York, everyone said wasn't
there, but Alvin Bragg brings it because President Trump is now
running for the highest office in the land.
Then a few months after that, Fani Willis brings her
ridiculous case against President Trump and other Federal
officials, all designed to make it so President Trump wouldn't
win the election.
Of course, all that was preceded by--all that was preceded
by the whole Russia collusion baloney--complete baloney--where
the FBI--think about this--the FBI went to the secret court.
They took information from the Clinton campaign, that had first
been sent to the Perkins Coie law firm, that are then being--
that they then hired Fusion GPS, who then hired a foreigner who
put together a bunch of lies in a dossier, they take it to the
court, and they use that as a reason to go spy on President
Trump's campaign.
So, lawfare is as real as it gets. We have a bill
introduced by our colleague, Mr. Fry, that seeks to address
part of this. It says if you're a Federal official and some
crazy local prosecutor comes after you can move that case to
Federal Court. Go figure. That makes so much sense. That's all
this bill does.
I appreciate the Chair having this hearing. I appreciate
our good witnesses who are here to talk about what we've
witnessed in this great country where it's supposed to be equal
treatment under the law. You're not supposed to use the law to
target your political opponents. We have a piece of legislation
that makes good commonsense that we hope to pass tomorrow in
the Full Committee, but today we're going to hear about it.
With that--again, I appreciate our witnesses, and I
appreciate the Chair of this important Committee having this
hearing. I yield back.
Mr. Roy. I thank the Chair for his opening statement.
I now recognize the Ranking Member, Mr. Raskin, for his.
Mr. Raskin. Thank you, Mr. Chair. Welcome to all our
witnesses.
The Majority Republicans call it lawfare when Donald Trump
is held to the rule of law and given every right of due
process. We call it lawfare when the Trump Administration
violates the rule of law and tramples the due process rights of
Americans, including prosecutors and FBI agents.
Mr. Chair, we have no kings here, no queens, no titles of
nobility, no serfs, and no slaves. Our revolution overthrew
monarchy and the established church. It made our Constitution
supreme over the monarchical and oligarchical political
ambitions of any man. The 13th and 14th Amendments abolished
slavery and gave equal protection to all, royal status to none.
In our time, Donald Trump's crime spree throughout American
society has tested the hard one principle that we are all equal
and that no one is above the law.
The Supreme Court that Trump has repeatedly bragged about
packing and stacking to destroy Roe v. Wade not only brought
the curtain down on the freedom and health security of tens of
millions of American women trapped in GOP-controlled,
antichoice States; it also made the President absolutely immune
from prosecution for crimes he commits under the so-called core
functions of his office, presumptively immune from prosecution
for other so-called official acts, and subject to prosecution
only for private unofficial acts.
After more than two centuries, this bracing new taxonomy
for licensing Presidential criminality was announced by the
Roberts Court in a 6-3 decision in U.S. v. Trump. It creates
Presidential exceptionalism, a plainly dangerous doctrine which
overturned a unanimous ruling of the D.C. Circuit Court of
Appeals.
Even that shocking burst of finger-painting on the
Constitution isn't enough for Trump and his crowd who seek now
complete immunity and impunity from the laws that bind the rest
of us. It's not even enough for them to appoint a nationwide
crew of embarrassingly servile judges like Aileen Cannon, who
may as well be on the bench in Putin's Russia, as she shows
little fidelity to the rule of law but fastidious devotion to
the whims of her dear leader.
Now, they want to pass something called the PEPPER Act to
let Trump and his accomplices get their political corruption
and election-fixing cases removed from any State Court in the
land and put in front of far more submissive and pliant Trump
appointees in Federal Court.
Donald Trump tried this move in one of his criminal cases,
the one in New York City where he was found guilty of 34 felony
criminal counts of falsifying business records to cover up
hush-money payments he had paid to a mistress before the 2016
election. There, his judge rejected his request to move
everything to Federal Court, saying Trump had failed to meet
both the current statutory and Constitutional requirements for
doing that.
As Judge Hellerstein observed in his ruling, the evidence
overwhelmingly suggests that the matter was a purely personal
item of the President, a coverup of an embarrassing event. Hush
money paid to an adult film star is not related to a
President's official acts. It does not reflect in any way the
color of the President's official duties. Removal to Federal
Court is reserved for cases where there is an actual Federal
defense.
Let's say the President was tried in Florida State Court
for assaulting a citizen but his defense was that the alleged
victim was a soldier, and he was just administering fair
punishment as Commander in Chief of the Army in a time of
actual conflict. In that hypothetical case, it would be removed
so the Federal judiciary could handle the Federal question
defense. There was plainly no Federal question defense in
Trump's hush-money record falsification scheme.
Now, scrambling to appease Trump, an incorrigible,
recidivist lawbreaker who is looking for a way to disappear all
of his State Court civil and criminal prosecutions, our
colleagues propose to amend the law so that a President or Vice
President or even a former President or Vice President can
remove a State civil or criminal prosecution to Federal Court
whenever that case is brought, quote,
. . . for or relating to any act while in office, even if that
act is of a completely private and personal nature, or where
the State Court's consideration of the claim or a charge may
interfere with, hinder, burden, or delay the execution of the
duties of the President or Vice President.
This broad, gaping language would in practice mean that no
State Court in America could ever conduct a criminal trial of
Donald Trump or any other President again even if the alleged
conduct--say, hypothetically, sexual abuse or criminal fraud--
has no relationship to any of his official Presidential acts.
After all, any litigation can obviously hinder or burden the
execution of official duty.
It would also permit Trump and his associates to remove the
State Court criminal cases now pending in Georgia related to
the Trump conspiracy to overthrow the 2020 Presidential
election.
This bill is designed to trash basic jurisprudential
principles, including federalism, that have served us well
since the 18th century. The conceit behind it is the pathetic
claim that Donald Trump is just profoundly misunderstood and a
victim of the judicial process and a target of unfair
prosecutions, although no court has ever once found that.
Yes, that Donald Trump. He's the victim, according to our
colleagues. The billionaire businessman who's been involved
in--check this out--more than 4,000 lawsuits, some in which he
is sued as a defendant by, for example, frustrated students at
Trump University or ex-mistresses or golf clubs alleging
nonpayment or plumbers, painters, electricians, and small
business contractors alleging failure to pay on their
contracts. Most of the ones I could find were ones in which he
is the plaintiff, deploying his army of lawyers to sue
thousands of people and businesses, including casino patrons,
real estate partners, business tenants, and media entities.
Most recently, he sued ABC and then CBS for $20 billion.
To hear our friends tell it, Donald Trump is just an Eagle
Scout who respects women, would never cook the books, and keeps
his hands to himself. The Donald Trump I know about is a
civilly adjudicated sexual abuser in New York, a convicted
criminal felon, and the only twice-impeached President in
American history, who was most recently impeached in this House
for inciting an insurrection against the Constitution, the
Congress, and his own Vice President. The Senate voted 57-43 to
convict him, meaning that although Trump narrowly beat the
Constitutional spread, robust bipartisan majorities voted that
he had indeed incited insurrection against our government.
Now, look, if you want to see real lawfare, if that's
something really in your scopes, then open your eyes to the
U.S. Attorney's office here in the District of Columbia. The
pro-January 6th insurrectionist turned U.S. Attorney for D.C.,
Ed Martin, has fired more than a dozen career prosecutors
focused on violent crime from his office simply for doing their
jobs and doing their jobs well. He fired them because they had
worked on the January 6th cases which they were assigned to do,
prosecuting Proud Boys, Oath Keepers, and other extremists who
violently assaulted our police officers, and they were sacked.
Just last week, Mr. Martin demoted several other top
prosecutors and career supervisors to entry-level positions,
again, as retribution for having simply done their jobs in
overseeing January 6th prosecutions. That is lawfare. That is a
violation of the due process rights as well as the civil
service rights of American citizens who did nothing other than
obey the law and do their jobs.
This is just the tip of the iceberg when it comes to the
administration's attacks on the rule of law in its first month,
from the corrupt quid pro quo in New York City with Mayor
Adams, which led to the resignation of multiple Department of
Justice lawyers, including the U.S. Attorney for the Southern
District who had been a Justice Scalia clerk and a career-long
member of the Federalist Society, and she said she couldn't put
up with that and she decided to quit; her assistant, another
conservative lawyer who had clerked on the Supreme Court for
Chief Justice Roberts, and he said you would have to be a fool
or a coward to go along with that corrupt bargain between
Donald Trump and Mayor Adams.
They have halted anticorruption task forces. They've
suspended enforcement of the Foreign Corrupt Practices Act.
They have suspended antikleptocracy and anticorruption
initiatives, and on and on.
If you want to look at lawfare, let's look at what's going
on right in front of our eyes today, Mr. Chair. That's what we
should be doing instead of going after some imaginary lawfare
by State and local prosecutors who did nothing other than their
jobs, enforcing the law in their States, and not a single judge
or appeals court or even the Supreme Court under Roberts
Court's spell has said anything about those people doing
anything remotely unethical.
I yield back to you.
Mr. Roy. Without objection, all other opening statements
will be included in the record.
We will now introduce today's witnesses.
First, Mr. George Terwilliger. Mr. Terwilliger is an
attorney with more than four decades of experience in both
private practice and government service. Before entering
private practice, he served for 15 years in the Department of
Justice as a prosecutor, United States Attorney for the
District of Vermont, Deputy Attorney General, and Acting
Attorney General. In private practice, Mr. Terwilliger has
represented a multitude of private companies, Members of the
House and the Senate, Cabinet officers, and other Executive
Branch officials.
Mr. Daniel Epstein. Mr. Epstein is the Vice President at
the America First Legal Foundation, a nonprofit public interest
law firm. He is also an Assistant Professor of Law at St.
Thomas University School of Law, where his research includes
Constitutional law, American legal history, Federal Courts and
jurisprudence, and civil procedure.
Ms. Elizabeth Price Foley. Ms. Foley is of counsel at
Baker-Hostetler, where she practices Constitutional Appellate
Law. She also serves as a Professor of Law at the Florida
International University College of Law where she teaches
Constitutional law, separation of powers, and civil procedure.
Professor Elizabeth Beske. Ms. Beske is a Professor of Law
and Associate Dean for scholarship at the American University
Washington College of Law. Her research focuses on civil
procedure, Constitutional law, Federal Courts, and legal
writing.
We thank our witnesses for appearing today, and we'll begin
by swearing you in. Would you please rise and raise your right
hand?
Do you swear or affirm under penalty of perjury that the
testimony you're about to give is true and correct to the best
of your knowledge, information, and belief, so help you God?
Let the record reflect that the witnesses have answered in
the affirmative.
Thank you, and please be seated.
Please know that your written testimony will be entered
into the record in its entirety. Accordingly, we ask that you
summarize your testimony in five minutes. I remind each of you
to turn the microphone on before you begin speaking.
Mr. Terwilliger, you may begin.
STATEMENT OF GEORGE J. TERWILLIGER
Mr. Terwilliger. Thank you, Mr. Chair, Ranking Member, and
the Members of the Committee, for inviting me to appear here
today to discuss lawfare by State authorities.
I have three suggestions for your consideration to curb
State lawfare targeting Federal officials and to restore the
Federal officer removal statute to be as Congress has intended
it over many years.
First, amend the removal law to expressly cover former
Federal officials.
Second, support the Supremacy Clause with legislation
providing an expanded scope of removal to include Federal Court
jurisdiction where there are questions of Federal law in
removal cases.
Third, codify Supremacy Clause immunity of Federal
officials.
A Constitutional line is crossed when State officials use
State law to control Federal activity. In 1819, Chief Justice
Marshall laid down the law in McCulloch v. Maryland, ruling
that under the Supremacy Clause, quote,
The States have no power to impede, burden, or in any manner
control the operations of the general government.
Congress, over the decades, in a succession of amendments
of the Federal officer removal statute, expanded the protection
of Federal officers from State prosecutions. As recently as
2011, Congress expanded removal to cover conduct merely, quote,
``related to,'' a Federal official's functions, but courts have
pushed back, ruling contrary to that Congressional intent.
In a 2023 decision, the 11th Circuit Court of Appeals
overruled 200 years of practice by taking removal possibility
away from all former Federal officials and again raising the
bar for removal contrary to Congress' 2011 amendment that
lowered it. Two members of that appeal panel urged Congress to
amend, recognizing what they called a, quote, ``nightmare
scenario,'' where allowing, quote,
A rogue State's weaponization of the prosecution power could go
unchecked and fester, which could paralyze our Republic-
democratic system of government which depends on having
talented and enthusiastic people willing to serve.
Congress should amend 1442(a) to expressly cover former
officials, but it needs to do more than that to curb the
burgeoning lawfare by States using legal actions to attack the
discretionary exercise of Executive authority.
Georgia DA Fani Willis' prosecution of my client, Mark
Meadows, is a great example of that lawfare. Congress, in 1939,
passed a statute which authorized Presidential Assistant
positions and established that their duties, by law, quote,
``shall be as prescribed by the President.'' Willis,
nonetheless, claims that the Fulton County District Attorney
can decide what Presidential Assistants can and cannot do. Her
State prosecution charged the White House Chief of Staff for
setting up and participating with the President in a telephone
call to a Georgia official.
The case against Mr. Meadows should have been removed and
summarily dismissed under the Supremacy Clause, but the Federal
Courts in Georgia, in contravention to Congressional intent,
misapplied the removal statute, not only ruling out former
officials, but raising the bar by adding the absurd requirement
that to get a State prosecution removed to Federal Court a
Federal official has to prove that he was authorized to commit
the very crime the State alleges in his Federal role.
Now, a Federal Court in Arizona has followed the 11th
Circuit's lead, blocking the path to Federal immunity and
allowing the Arizona Attorney General to prosecute conduct in
the very West Wing of the White House, the beating heart of the
Executive Branch.
Congress needs to act, reaffirming its intent to ensure
that State claims against Federal officials doing their jobs
get moved to Federal Courts and those that are barred by the
Supremacy Clause are summarily dismissed.
Chief Justice Marshall had it right 200 years ago when he
drew that bright line for closing State control of Federal
activities. The draft legislation here presents commonsense
steps for Congress to address lawfare where State authority
oversteps Constitutional bounds. It may be that even more needs
to be done, but this bill would be a solid start.
Thank you, Mr. Chair.
[The prepared statement of Mr. Terwilliger follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Roy. Thank you, Mr. Terwilliger.
Mr. Epstein, you may begin.
STATEMENT OF DANIEL Z. EPSTEIN
Mr. Epstein. Chair Roy, Ranking Member Scanlon, and the
Members of the Subcommittee on the Constitution and Limited
Government, thank you for inviting me to testify on this
important matter.
President Trump overcame the most vindictive weaponization
of the justice system against an American leader in our
Nation's history. Partisan operatives sought to destroy
President Trump in 2016, when the Clinton campaign branded him
as a Russian asset by laundering campaign opposition research
to the FBI to spy on the Trump campaign, leading to multiple
investigations by Special Counsel Mueller. The Mueller
investigation substantiated no criminal activity by President
Trump, nor could it. Its jurisdictional authority was based on
a lie manufactured by Christopher Steele.
As the American people would witness, the first special
counsel investigation was mere child's play. Two impeachment
attempts, four criminal indictments, one $400 million civil
judgment, one mugshot, three States attempting to disqualify
him from their ballots, two Democratic-nominated Presidential
opponents, and two assassination attempts later, Democrats
would finally claim their scalp when they obtained a conviction
against President Trump in a New York State Court, weeks before
the American people overwhelmingly reelected him with a
historic landslide mandate.
The American people saw through the coordinated hit job on
their President that culminated in a conviction by a radically
liberal jury pool in front of a judge who donated to Trump's
first 2024 election opponent, President Joe Biden, and whose
daughter works for a firm that represented both Joe Biden and
Kamala Harris' Presidential campaigns--campaigns against
President Trump, a party arguing before her father.
Despite these clear questions about Acting Justice Juan
Merchan's ability to appear impartial, the jury unanimously
convicted President Trump of concealing a crime that it did not
even need to agree on or share publicly. While the New York
jury, despite obvious legal errors and corrupt motivations, did
convict President Trump, the voters overwhelmingly acquitted
him on election day, making it clear that they understood the
fix was in.
The State of New York lacked jurisdiction over the campaign
charges against President Trump. The State of New York did not
have jurisdiction to hear a case centered on Federal election
law. The District Attorney Alvin Bragg violated the Supreme
Court doctrine known as the primary jurisdiction doctrine,
which says that a court should stay or dismiss a claim when it
implicates issues within the special confidence of a Federal
administrative agency. Here, that agency was the Federal
Election Commission.
The New York case against President Trump alleged violation
of the Federal Election Campaign Act of 1971. The FECA
violates--vests exclusive jurisdiction over issues of Federal
elections and the FEC and the Department of Justice. In
President Trump's case, the FEC did look at the allegations and
then decided they were not worth further investigation. This
should have been the end of the matter, but Biden's DOJ did not
enforce its exclusive jurisdiction, allowing a politically
motivated district attorney to bring his own case built on the
alleged violation of FECA.
Second, a top official in Biden's Justice Department was
dispatched to assist the Manhattan District Attorney's Office's
prosecution of President Trump. In coordination with President
Biden and his campaign's lawfare strategy, the New York
District Attorney Alvin Bragg resurrected a hush-money zombie
case under a legal theory that Bragg's predecessor had
previously sent back into the grave out of concerns that felony
charges would not hold up in court.
Bragg's commitment to getting Trump gained him the support
of senior Biden political operatives. One day after Bragg
announced his primary campaign against his predecessor, Bragg
received a contribution from Chiraag Bains, who would later
become Deputy Assistant to the President in the Biden White
House.
Biden's operatives for Bragg did not stop there. In
December 2022, New York District Attorney Alvin Bragg
reportedly hired Mike Matthew Colangelo to jump-start his
office's investigation of President Trump due to Colangelo's
history of taking on Donald Trump and his family's businesses.
At the Biden Department of Justice, Colangelo served as a
politically appointed Acting Associate Attorney General, the
third highest-ranking official in the Department of Justice.
The Committee's thorough investigation revealed that
Bragg's--this Committee's thorough investigation revealed that
Bragg's hush-money prosecution was coordinated with Biden.
Despite the obvious links between Biden's Department of Justice
and Bragg's District Attorney Office, Attorney General Merrick
Garland refused during a Congressional hearing to commit to
turning over communications between his Department of Justice
and Bragg's office, and the Department of Justice's followup
response to the Committee denied the existence of such
communications.
Our work at America First Legal revealed that, in fact, 36
responsive records existed between the Department of Justice
and the New York District Attorney's Office.
Thank you.
[The prepared statement of Mr. Epstein follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Roy. Thank you, Mr. Epstein.
Professor Foley, you may begin.
STATEMENT OF ELIZABETH PRICE FOLEY
Ms. Foley. Chair Roy, Ranking Member Scanlon, and the
Members of the Subcommittee, first, good afternoon, and thank
you for the opportunity to testify.
Lawfare is something we should all agree is bad. The
definition of lawfare is using the legal system either through
criminal or civil suits to go after your political opponents.
Firing people in the Executive Branch doesn't fit that
definition. So, it's not lawfare.
Lawfare is something that has torn this country apart. It's
deepened our political divide, it's undermined the rule of law,
and it's distorted, if not destroyed, America's trust in
government, particularly its courts. So, the good news,
however, is that Congress can do something about it.
I want to talk about the removal amendment, the bill that
was just dropped, which I had a draft of a little bit earlier.
I will focus on that, but on the drive over I thought to
myself, what really Congress ought to do--if I had my wish
list--is I would ask you to consider reorganizing the Federal
Courts.
You have plenary control over lower Federal Courts under
Article III, Section 1. You could take DDC, the District Court
in D.C., and the D.C. Circuit, and you could fold it into a new
13th Circuit. You could wrap it into a circuit with West
Virginia, Tennessee, and Arkansas, and you could help dilute a
lot of the bias that's happening today that's fueling a lot of
this lawfare. It's not going to solve all problems, but,
frankly, I think that's a very deep problem that we have with
the D.C. Circuit and the DDC that you need to think about
finding creative ways to solve. So, that's one point.
With regard to removal, you can also discourage lawfare by
toying with or amending the Federal officer removal statute.
That's going to be really important, because if you make
removal more readily available, you discourage lawfare because
you allow these cases to be taken into the Federal Court where
you have lifetime-tenured judges who will represent the
interest of the Federal sovereign and they're more insulated
from the political whims than their State counterparts are.
These Federal judges will then be responsible for deciding the
legal scope of important Federal defenses such as immunity.
Removal to Federal Court also allows a Federal jury to
decide the merits of the charges levied by the State against
the Federal official, and that's really important because
Federal jury pools are often geographically larger, and this is
going to help reduce or dilute the bias that a State or a
locality may have against the Federal Government, particularly
if that hostility toward the Federal Government is sort of
focused in one particular locality, such as Fulton County,
Georgia, or Manhattan.
Now, if we don't have liberal removal standards, if the
current removal statutes are not being liberally construed as
the Supreme Court says they should be, then we have a problem--
as the Supreme Court identified in Tennessee v. Davis--of
having rogue States that are hostile to actions by the Federal
Government, and those rogue States then undermine Federal
authority through lawfare waged against Federal officials.
The lawfare that has occurred in Georgia and New York have
revealed at least three substantive amendments to the removal
statute that I think are important. First, George has already
talked about the need to have the removal statute clearly State
that it applies to former Federal officials, such as Mark
Meadows.
It is remarkable that the 11th Circuit which denied removal
of Mr. Meadows' case did so because he was a former official,
but two of the three judges on the panel is Judge Rosenbaum and
Judge Abudu; the first one is an Obama appointee and the second
one is a Biden appointee. Two of the three judges on the panel
implored you, implored Congress, to amend 1442 to include
former officials. That says everything you need to know that
this is not political. This is for the good of the country.
They even said--they went so far as to say that, if you
don't do this, it could destroy the entire system of
government. They said it is a risk that, quote, ``keeps them up
at night.'' OK? Those are not light words by Democratic
appointees. So, at a minimum, I think you need to amend 1442
for that.
The other thing I think you need to do is make clear that
removal is allowed for the President and the Vice President.
George already touched on that issue.
I'll stop there and look forward to your questions. Thank
you.
[The prepared statement of Ms. Foley follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Roy. Thank you, Professor Foley.
Professor Beske, your time may begin.
STATEMENT OF ELIZABETH EARLE BESKE
Ms. Beske. Thank you.
Chair Jordan, Ranking Member Raskin, Chair Roy, Ranking
Member Scanlon, and the Members of the Subcommittee, it is a
great honor and a privilege to be part of your deliberative
process, and I thank you for the invitation.
My name is Elizabeth Earle Beske, and I'm a Professor of
Law at American University Washington College of Law where I
teach Federal Courts, Constitutional law, and civil procedure.
I went to Princeton University and Columbia Law School, and
after law school, I clerked for Patricia Wald and Justice
Sandra Day O'Connor, and then I spent some time working as a
litigator at Munger, Tolles & Olson. As will be apparent, I
come to you today not as a politician but as a nerdy law
professor.
My message today is a simple one. You can add the proposed
language to the statute, but it may not have the immediate
broad and sweeping effect you intend. In fact, in many
instances, it may not do very much.
Congress, as my colleague just noted, has extensive power
to confer jurisdiction on the lower Federal Courts. Indeed, the
Framers conferred on Congress the authority to decide whether
lower Federal Courts exist in the first place. This vast power
was limited, however, by Article III of the Constitution.
The Supreme Court has made clear that Congress may not
expand the jurisdiction of the lower Federal Courts beyond the
bounds established by the Constitution. In this area, the
Constitution requires that all cases have a Federal ingredient.
Section 1442, which you're seeking to amend, allows the
removal by Federal officers of civil and criminal actions
brought against them in State Court for actions they take under
color of their office, a unanimous Supreme Court held in Mesa
v. California--written by my boss--that the Constitution only
permits these kinds of removal where Federal officers assert a
colorable Federal defense. That is the only time there is the
requisite Federal ingredient. Any other reading, the court made
clear, would raise grave Constitutional questions. Even though
the statute does not include this limitation on its face, we
must read it in line with the colorable Federal defense
requirement.
The Mesa court confirmed that Section 1442 is a pure
jurisdictional statute, nothing more. In other words, it
provides a pathway to Federal Courts for a defendant, but does
not establish a defendant's entitlement to get there. That has
to come from somewhere else.
This bill clarifies, as Judge Hellerstein of the Southern
District of New York had already concluded, that the statute
covers the President and Vice President. This bill also takes
up 11th Circuit Judge Rosenbaum's call in Georgia v. Meadows to
expand coverage to include former Federal officers. The 11th
Circuit had other things to say on the point of Mr. Meadows'
effort to remove.
Of course, current and former Federal officers cannot
remove simply because they hold a particular Federal office or
because the suit charges conduct under color of that office.
The Supreme Court's unanimous opinion in Mesa considered and
specifically rejected that argument.
Perhaps anticipating Mesa's clear instruction, the bill
proposes to create a new immunity provision, 1456. This
provision confers on all officers a rebuttable immunity under
Article VI, Section 2, of the Constitution, from any charges or
claims made under authority of State law.
The Article VI, Section 2, is the Supremacy Clause. The
Supremacy Clause does three things. It declares that Federal
law is the law of the land even in the States, it establishes
Federal law is supreme, and it states that if ever there is a
conflict between State law and Federal law, Federal law wins.
It's basically a choice of law provision.
In 2015, in another unanimous Supreme Court decision
written by Justice Scalia, the Supreme Court made clear that
the Supremacy Clause does nothing else. Stating it plainly,
Justice Scalia wrote, ``The Supremacy Clause is not the source
of any Federal rights.'' In other words, it lacks independent
content.
A unanimous Supreme Court has clearly told us we cannot
look at the Supremacy Clause to find Federal rights. It just
tells us what to do when we find them. Plainly, Section 1456
and the Supremacy Clause themselves cannot provide content for
a brand-new and very expansive defense. Section 1456 by itself
does not solve a Mesa problem.
The proposed new official immunity provision certainly does
not enact what some have called the Supremacy Clause immunity
defense. That term, coined by lower Federal Courts, has no
relation to the Supremacy Clause it confers immunity where
officers can demonstrate their actions were necessary to
fulfill Federal duties--nor does it enact quietly any immunity
recognized in Trump v. United States.
Thank you for your time.
[The prepared statement of Ms. Beske follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Roy. Well, thank you, Professor Beske.
Ms. Beske. Thank you, sir.
Mr. Roy. My apologies. We will now proceed under the five-
minute rule with questions.
The Chair recognizes the gentleman from California for five
minutes.
Mr. McClintock. Thank you, Mr. Chair.
This is the simple, awful truth of the Biden
Administration. For the first time in American history, a
Presidential administration targeted its chief rival for
criminal prosecution, concocted the flimsiest criminal charges,
turned the Federal law enforcement machinery against it,
colluded with the Democratic State law enforcement officials to
do the same. This is the historical record. This happened. When
we speak of the threats of democracy, what greater threat can
there be than one party trying to jail its political
opposition?
Now, I would, frankly, advise the Ranking Member to be very
careful in citing the conviction of the President in the
kangaroo court of Judge Merchan. A staggering range of legal
experts, from Alan Dershowitz on one side to Jonathan Turley on
the other, have commented at great length on just how
outrageous these proceedings were and how likely they are to be
overturned on competent review. If these professors turn out to
be correct, the Ranking Member and his many acolytes here in
this Congress are going to have their words quoted back to them
for the rest of their lives.
Now, those who've tried to put their political opponents in
jail have never fared well before history and nor have their
apologists. Omar Khayyam put it this way. He said,
The moving finger writes; and, having writ, moves on: Nor all
thy piety nor wit can call it back to cancel half a line, nor
all thy tears wash out a word of it.
My Democratic colleagues might want to take a step back and
consider how history will judge them in the years ahead when
passions have cooled and the facts remain.
Now, Mr. Terwilliger, in the events leading up to the Civil
War, the Confederate States asserted a power of nullification
and supremacy over the Federal Government that ultimately was
resolved at Appomattox Court House. I am unaware of any
assertion by the Confederate States that they could, say, seize
Abraham Lincoln and try him in their State Courts.
Is there any precedent in the entire history of our country
of what the Biden Administration and its partisans in New York
and Atlanta attempted to do?
Mr. Terwilliger. Not that I'm aware of, Mr. McClintock. In
fact, privately and to others perhaps in the President's
circle, I described the command that Mr. Trump be in Judge
Merchan's courtroom when he was already a declared candidate
ready to campaign, that he was truly America's first political
prisoner. That case needs
to be able to be removed from Federal Court--to Federal Court,
rather.
Suppose some State authority had decided that Joe Biden was
not of sound mind and was a danger to himself or others,
including the country, and decided to civilly commit him under
State law. Do we think that case ought to have stayed in State
Court? Of course not. This is a very important step.
If I may just take the opportunity because I think this is
so important. Professor Beske is exactly right about the Mesa
decision which her justice, Justice O'Connor, wrote, and it's
why I think that when the Committee marks this bill up, you
ought to just simply incorporate Federal question jurisdiction
into the basis for removal, because all these removal cases
involve Federal questions such as what is the scope of the
duties of the Federal officer. We don't want those decided by
State Courts.
Mr. McClintock. Professor Foley, you mentioned how
dangerous this precedent is to both political parties. What's
to stop a partisan Republican prosecutor from going after the
next Democratic Presidential nominee?
The Democrats keep telling us that any day now, President
Trump will try to do the same thing to them, even though he had
four years to do that in his first term and didn't and hasn't,
of course, in the second so far. If we simply follow the
precedent that the Democrats have already set, he certainly
could do that. What other measures do we need to take to
prevent this from ever happening again?
Mr. Terwilliger said that President Trump was the first
political prisoner. We better make damn sure he's the last.
What can you guide us on?
Ms. Foley. Couldn't agree more. This is bad for the
country.
Yes. Based on this precedent, any Republican State Attorney
General or now President Trump could appoint a Special Counsel
and go after Biden and anybody in Biden's Administration. The
precedent has been set, and it's a bad precedent.
What's stopping that from happening? Honestly, we were
talking about it in the conference room beforehand. It's
because Republicans actually believe in the rule of law. We
actually believe in norms and preserving them.
Mr. McClintock. By the way, Liberals used to believe that
too. Liberals still do, but the Left does not.
Ms. Foley. They did. When I worked on the Hill from 1987-
1992, I worked for a Democratic Member of Congress who is now a
U.S. Senator, Senator Ron Wyden. Back then, when Ron Wyden was
in the House, he was actually kind of moderate and reasonable
and liberal but not progressive, and he had classical liberal
values that he adhered to. I think that's been completely lost
by the Democratic Party. It's why I am no longer a Democrat and
why so many others are no longer Democrats, including, for
example, Elon Musk. I know that name makes people go crazy.
Mr. Roy. Ms. Foley, we've gone over the time.
With that, I will thank the gentleman from California.
Ms. Foley. Thank you.
Mr. Roy. I'll recognize the gentleman from Maryland and the
Ranking Member, Mr. Raskin.
Mr. Raskin. Thank you, Mr. Chair.
First point. The Republicans demanded a Special Counsel in
the Biden case, and the Republicans demanded a special counsel
to look into Trump, because they said that the Attorney General
couldn't be trusted. The Special Counsel was a demand on the
Republican side.
In any event, just to get back to the heart of this matter
in terms of the law, Professor Beske, you point out that the
Supreme Court rendered this unanimous decision in Mesa v.
California, establishing that there needs to be a Federal
question defense to remove from State Court to Federal Court.
The burden of your testimony is to say that, even if this bill
were passed that our colleagues are proposing, it wouldn't
alter that in any way because you can't overturn a
Constitutional ruling with a mere statute.
Would there, in fact, be this intended effect of being--of
allowing Donald Trump and all his associates to be removed from
State Court prosecutions even if there's no Federal--
independent Federal question defense?
Ms. Beske. No. It's really important to flag that Mesa
considered and specifically rejected the United States'
argument in that case that Federal officers can remove simply
because they hold a Federal office or simply because the suit
charges conduct under color of that office. That was
specifically the United States' argument, and Justice O'Connor
specifically rejected it.
Mr. Raskin. That would be like creating a title of
nobility. If you hold a Federal office, whether it's elective
or appointed, you can never be charged under State law for
murder, rape, armed robbery, theft, fraud, and whatever it
might be. It's just amazing to me that our colleagues would
make such an argument that's so breathtakingly anti-federalism
that the States are just drained of all sovereignty over the
common law crimes that would take place within their State.
If you're right--and I believe that Mr. Terwilliger just
conceded that you were--I wonder what you think about his
suggestion as a way to repair their bill to simply say that
there must be Federal question jurisdiction. That just is
tautological. That just restates what the Supreme Court's
already found, right?
Ms. Beske. Well, I think what he's saying is it's enough
that the statute says he's operating under color of his office
and that this should satisfy Mesa.
Mr. Raskin. That runs into the Supremacy Clause fallacy
that you pointed out originally.
Ms. Beske. Right. That's the argument that Mesa rejected.
Mesa said that's not enough. That does not satisfy the
requisite Federal ingredient necessary under Article III,
necessary to satisfy the Constitution. That argument is a
nonstarter. They have rejected that unanimously.
Mr. Raskin. What this really adds up to is some people
complaining about the fact that Georgia law enforcement
authorities and New York law enforcement authorities, operating
independently as States within the sovereignty they've got,
without any actual evidence that Joe Biden or Joe Biden's
Department of Justice had anything to do with it, decided to
prosecute people for crimes committed under their laws.
They don't like the fact that they weren't able to remove
to Federal Court where they felt that they had a more receptive
audience because Donald Trump had appointed a lot of the
judges, right? So, what is there actually to do? The Supreme
Court has rendered its decision in the matter, right?
Ms. Beske. It has. One thing I always teach my civil
procedure students is, when someone attempts to remove, it's as
if you pull a lever. It automatically goes to the Federal
Court, and it's the Federal Court that makes the call as to
whether removal is or is not a good thing.
So, Hellerson is a Federal judge. It is Hellerson that made
the call as to whether the requisites of the Federal removal
statute were satisfied.
Mr. Raskin. In the Mark Meadows case, you're saying?
Ms. Beske. No.
Mr. Raskin. In the Mesa case.
Ms. Beske. Hellerson is in the Southern District of New
York.
Voice. Hellerstein.
Ms. Beske. Hellerstein, I'm sorry. He is the person that
made the call as to whether it was under color of the office
and whether there was a color of--
Mr. Raskin. You're saying it was a Federal Court ruling on
the question of removability.
Ms. Beske. Correct.
Mr. Raskin. That would be the same also in Meadows' case.
Ms. Beske. Correct.
Mr. Raskin. In the Mesa case. All of them go to Federal
Court. What you have is Federal judges saying, with the Supreme
Court backing them up, this doesn't belong in Federal Court.
Ms. Beske. Correct.
Mr. Raskin. This is a run-of-the-mill State criminal law
prosecution.
Ms. Beske. Correct. It's not under the color of the office,
and there's no colorable Federal defenses.
Mr. Raskin. Our colleagues want to turn a Federal case--
turn it into a Federal case because Donald Trump doesn't like
it.
With that, I'll yield back to you, Mr. Chair.
Mr. Roy. Now, I'll recognize the gentlelady from Wyoming
for five minutes.
Ms. Hageman. Thank you.
Ms. Foley, can you describe for us what lawfare is.
Ms. Foley. Lawfare is the use of legal processes, either
civil or criminal, to go after a political opponent.
Ms. Hageman. Mr. Epstein, Alvin Bragg's 34-count indictment
against President Trump was the first time a former President
had been indicted in history. Is that correct?
Mr. Epstein. That is correct.
Ms. Hageman. The facts of that case had been known for
years. Isn't that also true?
Mr. Epstein. Yes, and litigated.
Ms. Hageman. Why did Federal prosecutors then choose not to
charge President Trump?
Mr. Epstein. Obviously, they didn't think that the evidence
substantiated any crimes.
Ms. Hageman. Do we yet know what the underlying crime was
that Donald Trump allegedly committed that was the basis for
the convictions?
Mr. Epstein. Well, obviously, the underlying New York
criminal statute was interpreted broadly, but the supposition
is that the President, through this alleged hush money scheme,
was engaging in election crimes, and even, of course, the case
directly referred to Federal election crimes.
Ms. Hageman. What do you mean by supposition? Didn't they
have to prove that's what he had done?
Mr. Epstein. Right. Of course, there was no unanimous jury
determination on that. In fact, there was, of course, no proof.
The argument was there must have been some conspiracy with the
Trump Organization and others.
Ms. Hageman. They didn't prove the underlying crime. They
just convicted him of something in State law. Is that correct?
Mr. Epstein. Yes. I would also note that based off an
executive action in New York, there was a stay of these types
of indictments during COVID. There was, of course, a very
aggressive reinterpretation of a stay designed to protect
criminal defendants to go after the President.
Ms. Hageman. Have you ever seen anything like that New York
case in your entire years of practice?
Mr. Epstein. No, never.
Ms. Hageman. Were you shocked at what happened in that
court?
Mr. Epstein. I was, as were many in the legal academy and
many practitioners.
Ms. Hageman. I sit here and I listen to all of that, the
caterwauling on the other side about Elon Musk. I don't know
what he has to do with anything today. I listen to all the
accusations about Russia, Russia, Russia. Boy, I wish we could
retire that word someday. That has nothing to do with what
we're talking about.
I listen to all this nonsense that is being spewed out
there, and what I can't understand is why anyone wants to
undermine our criminal or civil justice system in the manner
that has been done over the last couple of years with lawfare,
whether you're a Republican or a Democrat.
Can you understand that, Ms. Foley?
Ms. Foley. No, absolutely not. If they can do it, one side
can do it; the other side can do it too.
Ms. Hageman. Isn't that kind of what happens in our
political system?
Ms. Foley. Yes, because it's politics.
Ms. Hageman. It's politics, that's right.
Ms. Foley. Politics and law should be different.
Ms. Hageman. Don't you think that most of the American
people understand what happened in these cases? Do you really
think--does anybody really think that anybody was confused or
that we couldn't figure this out or we didn't even know exactly
what was happening with these cases in New York and the Fani
Willis cases.
We all knew what was happening, right? It was to stop him
from running for President. Pretty simple to figure out. Isn't
that a classic example of lawfare? Is that what we want our
justice system to turn into, again, whether you're a Republican
or Democrat? Is that what our Constitution is here for?
Mr. Terwilliger, do you think that that's a good use of our
criminal justice system?
Mr. Terwilliger. No, ma'am.
Ms. Hageman. Well, we have focused a lot on how politically
motivated the State and local officials can target--have been
when they target our Federal officials, but we also need to
consider the Biden DOJ's role in all this that happened.
For example, Mr. Epstein, what agency has Congress charged
with adjudicating and enforcing Federal campaign finance
violations?
Mr. Epstein. That's the Federal election Commission.
Ms. Hageman. All right. From a Congressional perspective,
why shouldn't every Member of this Committee--why should every
Member of this Committee care about the proper enforcement and
interpretation of a law Congress drafted? Isn't that our role?
Mr. Epstein. Absolutely, they should.
Ms. Hageman. In Mr. Bragg's prosecution, did the Biden DOJ
enforce its exclusive jurisdiction?
Mr. Epstein. No. In fact, we know that the Public Integrity
Section at the Department of Justice has historically
prosecuted election crimes, and yet here they ceded authority
to a State prosecutor.
Ms. Hageman. They allowed a State Court to prosecute a
former President in a case that the court had no jurisdiction.
Is that fair?
Mr. Epstein. Yes. Ms. Congresswoman, it's even worse,
because we have a tradition of Federal agencies; even if you
want to say that Federal agencies have expertise in these
questions, we certainly know that State Courts don't have
expertise in Federal questions relating to elections.
Ms. Hageman. They wouldn't have developed it because they
don't have jurisdiction.
Mr. Epstein. Exactly. That's the meaning of jurisdiction.
Ms. Hageman. Then, when you bring in Mr. Colangelo and his
involvement with this, we know that the Biden Administration
was knee deep in the prosecution of Mr. Trump in New York,
don't we?
Mr. Epstein. Yes. In fact, as America First Legal found
out, of course, these documents were withheld under privilege
protections, but 36 records existed of communications between
the District Attorney of New York, that office, and the
Attorney General's Office. Yet, Attorney General Garland came
to this Committee and said that, ``there were no
communications.''
Mr. Roy. Thank you, Mr. Epstein.
Ms. Hageman. Thank you, and I yield back.
Mr. Roy. I thank the gentlelady from Wyoming.
I now recognize the gentleman from Tennessee, Mr. Cohen.
Mr. Cohen. Thank you, Mr. Roy.
I watched the testimony earlier, and the first part I saw
was Jim Jordan incorrectly saying a lot of things about
President Trump. He started with saying that this Mueller
investigation didn't show anything concerning Trump; there was
no connection. That's because Bill Barr redacted it and made
his own opinion of the front end of what the case said, what
Mueller said.
Mueller's report made it clear that there was Russian
involvement. The first thing that the Russians did was to send
some folks up to Trump Tower to talk to Junior and son-in-law
and a few other Trumpers and talk about getting something done.
That woman that came up there to meet with him ended up
being in the Russian Dumas. Russians must have thought pretty
well of her. She did her job well.
The Senate did a study, a bipartisan study on whether there
was Russian collusion. The Senate Intelligence Committee came
out and said, ``yes, there was, that Manafort went over to
France or wherever and met with Kilimnik and gave him the
polling data and this is where we need help.''
Then that ended up getting to Prigozhin in St. Petersburg,
and then they started spewing out all the false social media
stuff to make Blacks think they shouldn't vote, and other
people get confused about this and that and trying to help
Trump.
That's what they did. The Russians helped Trump get elected
in 2016. The Senate Intelligence Committee said that, and the
Mueller Committee said--Mueller report said that.
Then, as far as this trial goes that you say there's not
been a President indicted before, there's never been a
President that was so easy to indict. The guy has committed
more crimes than all the other Presidents put together.
Michael Cohen got tried and sent to prison because of what
he did in this case, but Bill Barr didn't want to try the
President, who was individual one, basically saying, ``The
President did it, but we're sending Michael Cohen to jail,''
and to protect individual one. That's what they did. He should
have been tried in Federal Court, but Bill Barr wasn't man
enough to do it because he was bought.
The President paid off Stormy Daniels and whatever she was,
Ms. August, whatever, and paid them off so that it wouldn't
become public and hurt his Presidential campaign. Michael Cohen
took the orders that he had to do it, and they did that.
It was Federal election involvement and criminal law. The
jury found him guilty. How many counts did they find him--
Professor, how many counts were there that he was found guilty?
Thirty-four?
Ms. Beske. Thirty-four.
Mr. Cohen. Thirty-four times. A jury, Americans, citizens
voir dired by both sides, chosen, on 34. They all agreed, 34 to
nothing. Every single one of them said guilty beyond a
reasonable doubt.
You all are questioning the American jury system and say,
because they're in a State Court their ruling wasn't proper.
You could commit a murder. Hamilton and Burr had their duel in
New Jersey I guess it was, and there should be a criminal case
and there was.
They want it--this whole law is about helping Trump, who's
still hung up on this guilty verdict, which he's not going to
spend any time on or even have to pay a fine.
There's no need for this law. Trump wants to get it in
Federal Court because he's got friends there and, like Mr.
Raskin mentioned, Aileen Cannon and what she did, which was
disgusting all around. She ruined the classified briefs, files
case, and classified information. He was guilty as hell of
that. She held it and held it and held it until they can't even
get the Special Counsel's report out.
The Supreme Court put the case on January 6th off and off
and off so it wouldn't be heard. The Supreme Court is also
involved in this. They were wrong to give Trump a free pass.
Donald Trump shouldn't make law. He shouldn't do--he shouldn't
be where he is. That's what happens when you elect someone who
is emotionally, morally, and intellectually incapable of
performing the job that they're chosen. You give him a pass
from DOGE and says, ``You're bad work; you're fired.''
I yield back.
Mr. Roy. I thank the gentleman from Tennessee. I find it
interesting that we're now concerned about the intellectual
capacity of the President of the United States.
I'll now recognize the gentleman from North Carolina, Mr.
Harris.
Mr. Harris. Thank you, Mr. Chair.
I thank all of you on the panel for your time today and for
your testimony.
Mr. Epstein, on August 8, 2022, the FBI raided Mar-a-Lago,
and the American people witnessed an unprecedented attack on
the home of a former President by a politicized FBI.
Almost a year after the raid on Mar-a-Lago, on June 7,
2023, Steven D'Antuono, the former Assistant Director in charge
of the Washington Field Office, sat down with the House
Judiciary Committee for a transcribed interview as a part of
this Committee's oversight of the FBI. In the interview, Mr.
D'Antuono described what he viewed as several abnormalities
about the way in which that raid was conducted.
Mr. Epstein, in a notice of claim filed in the DOJ in 2024,
you argued that the FBI's conduct in the raid, where
established protocol was violated, ``constitutes a severe and
unacceptable intrusion that is highly offensive to a reasonable
person.''
Would you explain to us today how the FBI's raid of Mar-a-
Lago was inconsistent with standard protocols?
Mr. Epstein. Well, Congressman, precisely as Mr. D'Antuono
testified before this Committee. That we have protocols. We let
the attorneys know before the raid is going to be conducted. We
typically use the local office to be in charge of it, not the
Washington Field Office to be in charge of that.
The protocols here were wholly inconsistent, and I think
that's part of the concerns about when political goals inform
what otherwise should be doing justice.
Mr. Harris. Why do you suppose they opted out of such
protocols?
Mr. Epstein. Here the tone was set from the top. I'll just
note that, on this question of records and what was probable
cause to do these investigations, so much of that was based off
the views of the National Archives that these were records that
were in the proper ownership of the United States.
In large part because of America First Legal's work, we
recently showed that the former Archivist of the United States,
David Ferriero, actually said that we should treat President
Trump's records as if they were Federal records, and violations
of the Federal Records Act allows us to make referrals to the
Department of Justice.
That was an arbitrary, capricious legal determination that
led to the ability for the Department of Justice to have
probable cause to conduct this raid. That's something that is a
direct piece of evidence of politicization of the law.
Mr. Harris. Thank you, Mr. Epstein.
Mr. Terwilliger, your client, Mark Meadows, is being sued
by Fulton County, originally by the very partisan District
Attorney Fani Willis. Meadows sought to have his court case
moved to a Federal Court arguing it was more appropriate
because he was acting in the official capacity as Trump's White
House Chief of Staff.
After his bid was rejected by the Supreme Court, you argued
that the risk puts former Federal officials such as Meadows,
quote, ``at risk of being left to the wiles of every
particularly hostile district attorney or State AG in the
country.''
I happen to agree with you. Something needs to be done to
protect future former officials from being subjected to the
type of lawfare that Mr. Meadows is facing.
My question to you, Mr. Terwilliger, does Congress have a
responsibility to protect Federal officials from lawfare?
Mr. Terwilliger. Yes, sir, it does. It has tried repeatedly
to do that. The courts have repeatedly pushed back for whatever
reason, including in the Mesa v. California decision.
What Mr. Raskin's comments miss is the fact that all
Federal Courts, all inferior Federal Courts other than the
Supreme Court are created by this body, by the U.S. Congress.
You establish their jurisdiction.
What I'm suggesting to you very simply to do what you want
to get done is that you incorporate standard Federal question
jurisdiction into the removal statute.
So, in a case like in Mesa, where the question was whether
or not, if I recall correctly, postal employees could speed or
not in doing their job, that those questions get decided by
Federal judges in Federal Courts. Otherwise, we will have an
incredible body of confusion of State Courts deciding Federal
questions.
It is important, because of the Mesa decision, to make
clear that Federal questions belong in Federal Court. Indeed,
over the decades, many Federal Courts have said the very reason
for the removal statute is to have Federal questions decided in
Federal Court.
Mr. Harris. Well, thank you, sir. I look forward to our
markup tomorrow in which this Committee will be taking a look
at important legislation seeking to address these issues and
prevent future lawfare.
Thank you, Mr. Chair.
Mr. Roy. I thank the gentleman from North Carolina.
I'll now recognize the gentlelady from Washington for five
minutes.
Ms. Jayapal. Thank you, Mr. Chair.
President Trump has a long and documented history of
attacking the judiciary simply for following the law. He once
suggested that a judge who granted class certification in a
fraud case against Trump University could not be impartial
because the judge was of Mexican descent. He called other
judges, quote, ``crooked, corrupt and evil.''
Most recently, he refused to comply with judicial orders
blocking the implementation of his unlawful funding freeze. My
colleagues on the other side have unfortunately endorsed this
behavior, and now they propose legislation that would further
empower President Trump to evade accountability in the courts.
Professor Beske, what effect does this kind of behavior
toward the judiciary have on the integrity of the court system,
just briefly?
Ms. Beske. Well, it takes us into dangerous territory. The
whole premise of Article III judges is they have life tenure.
The Framers tried to remove them from the political process.
The whole idea was to have a body of judges free from political
considerations. The idea of disobeying a court order, boy,
that's a Constitutional crisis.
Ms. Jayapal. It is a Constitutional crisis.
Ms. Beske. That's terrifying.
Ms. Jayapal. Yes, it is terrifying. In May 2024, Donald
Trump was found guilty of 34 felony charges under New York
State law for falsifying business records to conceal hush money
payments made to Stormy Daniels.
Republicans believe that this prosecution was politically
motivated and corrupt, but they seem to forget about the role
of a citizen jury, which came to the ultimate unanimous
conclusion of Donald Trump's guilt after hearing both defense
and prosecution lay out the arguments.
Can you just remind us why the Founding Fathers actually
adopted the jury system, one or two sentences if you can.
Ms. Beske. That's hard.
Ms. Jayapal. I know it's tough for a law professor.
Ms. Beske. That was kind of the genius of the Framers,
right, to put front and center ordinary citizens there to be
safeguards against the government to protect and be the
decisionmakers, right?
Prosecutors might be motivated to get the conviction, but
to have the ultimate decisionmakers be people, ordinary people
who are weighing the evidence and coming to decisions. That was
kind of their genius.
Ms. Jayapal. It is genius. There are even some checks and
balances built into the system to make sure that jury members
are impartial. What are one or two of those?
Ms. Beske. Well, you have challenges for the cause. They're
unlimited typically in every State. Peremptories, there are
some limits on those but there's voir dire, I mean that--
sequestration. Typically, judges are kept from things--or,
rather, jurors are kept from things that might prejudice them.
Judges obviously have the ability to call a mistrial in the
event there's anything.
Ms. Jayapal. That's correct. So, there's lots of things
built-in to make sure that this is a fair process. There was no
evidence of improper bias or behavior by any members of the
jury, right, in that criminal case?
Ms. Beske. No.
Ms. Jayapal. Once again to confirm, did the citizen jury,
this genius system that you've described, unanimously conclude
that Donald Trump was guilty of 34 felony charges?
Ms. Beske. With respect to each of 34 charges.
Ms. Jayapal. Each one.
I want to turn to this legislative proposal, which seeks to
amend Federal law to allow Presidents to remove cases against
them from Federal Court to State Court. Under existing law,
removal is only granted in limited cases. Motions have to be
made on specific grounds that allow for removal, and one of
those grounds is that a Federal officer, Member of Congress, or
judge can remove a case if the case relates to, quote, ``any
act under color of office.'' The Supreme Court, as you've
mentioned, has interpreted ``color of office'' to mean acts in
performance of an official duty.
The other side's legislation exceeds this requirement by
allowing Presidents to remove any case to Federal Court for any
act in office--that's a quote from their legislation--
regardless of whether it relates to exercising their official
powers.
Why is it a bad idea to eliminate that, quote, ``color of
office'' requirement?
Ms. Beske. Well, you're certainly expanding the possible
pool--now, again, always qualified by the Mesa Federal defense.
Ms. Jayapal. Yes.
Ms. Beske. You're expanding the possible pool of people who
can take this bridge to Federal Court. I'm a federalism person,
and I believe that having two sovereigns in our system, States
and the Federal Government, is a protection against tyranny.
The Framers really thought about this. That protects
individual rights, and to take from States their ability to
prosecute violations of State law in their own courts is very
intrusive. The more that's allowed, that's a problem in our
system.
Ms. Jayapal. Protection against tyranny, that's really what
we're talking about here. I really appreciate your input.
I yield back, Mr. Chair.
Mr. Roy. I will recognize the gentleman from Texas for five
minutes.
Mr. Hunt. Thank you, Chair.
The past few years, the Left has used every weapon,
including weaponizing the Department of Justice against
President Trump. Of course, they didn't stop at the DOJ. The
Left used State and local prosecutors to do their biddings as
well.
Do you remember the so-called hush money case in New York?
This is the case that was led by Matthew Colangelo, the former
No. 3 at the DOJ. That's right, a high-ranking DOJ official
left his job to work for a local DA's office. That's pretty
ridiculous and does not pass the smell test to anybody that's
competent.
Of course, there's the so-called RICO case in Georgia, as
if this guy was Al Capone. Thanks, Fani. Then there's Tish
James. She ran solely on prosecuting Donald Trump. Now, isn't
her main job to protect New Yorkers? She was clearly
distracted. You cannot tell me that these cases were not
politically motivated. If President Trump were not running for
President again, none of this would have happened, period. None
of this would have happened.
What people have got to understand is that this is really,
really good for fundraising for Democrats, but I'm going to say
the quiet part out loud here. They want their veneer of
legitimacy.
You may have forgotten this but, again, they threw
everything at President Trump. They impeached him twice and
tried to remove his name from the State Presidential ballots.
They laser focused Lady Justice to eliminate the competition.
How did he survive this? Because he is clearly not like the
average person. He is a political force of nature.
What happened over the course of the past four years to
President Trump should shock everyone in this country, because
one thing he would always say on the campaign trail was this:
If he could do it to me, they could do it to you. I'm just
standing in their way.
This is repulsive behavior that we saw from the Left to
prevent a man from becoming the President of the free world.
Guess what happened? We the people saw right through the crap,
and we still made him our 47th President. Thank God for the
resolve of the American people.
Mr. Epstein, I have a question for you, sir. Thank you for
your work to expose weaponization against President Trump. You
said that the Alvin Bragg case was coordinated with Biden. For
those of us at home, can you walk us through this process and
how it happened? Can you explain how Biden and his fingerprints
were all over this operation?
Mr. Epstein. Yes. Thank you, Congressman. I wish we could
tell you what the documents would reveal. That's still up in
litigation. What we did at America First Legal is we obviously
used a FOIA request to Main Justice to look for communications
with the New York District Attorney's Office. The response,
consistent with what Attorney General Garland said to this
Committee, was that there were no responsive records.
So, what we did is what any good investigative lawyer does,
is you send a similar request to the District Attorney's Office
in New York, the Manhattan DA, and you say, ``Give us all
communications with the Department of Justice.''
While they didn't disclose those records, they said,
there's 36 responsive records, which suggests that, in fact,
there were communications. It's important for the public to
know what was said in those communications.
Mr. Hunt. Thank you very much for answering the question.
I also want the American public to understand something.
The reason why the Left is still railing on President Trump
even though he won the Presidency, we won the Senate, and we
were able to keep the Majority in the House is because, quite
frankly, they have nowhere else to go because its lawfare fell
flat on its face.
We cannot allow this to happen again in the future of this
country. That's why we've got to understand our history and how
this works. We have to understand that we are a Constitutional
Republic, and we must protect the average citizen in this
country, ranging from President Trump to the average person
that works every day here in America that makes a decent wage
just taking care of their family. Everybody must be treated
fairly under the law, regardless of what they do or regardless
of what they aspire to be.
With that, I yield back the remainder of my time. Thank
you, Mr. Chair.
Mr. Roy. I thank my friend from Texas.
I now recognize the gentlelady from Vermont.
Ms. Balint. Thank you, Mr. Chair.
I want Vermonters to understand the stakes of what's
happening right now at the Department of Justice. I know many
Americans feel in this moment that they can't trust government,
and I certainly understand why they might feel that way.
Democracies have long struggled with rooting out public
corruption. As long as there is public trust, there are those
who will betray the trust for their own power, for their own
profit. How do we combat corruption? How do we ensure the
responsible use of power? Those are the things that I think
about a lot and that my constituents ask me about.
One of the ways that we do that is by entrusting that we
have independent, ethical prosecutors to uphold the law no
matter who is in office.
I want to acknowledge and thank everyone for being here
today. I especially want to acknowledge Mr. Terwilliger, who
previously served the people of Vermont and the Nation under
the Reagan Administration in various roles, including the U.S.
Attorney. So, thank you so much for being here.
Mr. Terwilliger, do you agree that one of the most
effective ways to fight corruption is to establish and maintain
a group of nonpartisan prosecutors who are dedicated to the
rule of law?
Mr. Terwilliger. I certainly agree with that, ma'am. If
you'll allow me just 30 seconds, when I was the U.S. attorney
in Vermont, I had no idea if my assistants were Republicans or
Democrats. They were people who believed in the rule of law and
applying the rule of law.
If one of them had ever come in and said, ``We should go
after so-and-so because or on account of,'' I sadly have to
tell you, ma'am--
Ms. Balint. If I could, if I could just because I only get
five minutes.
Mr. Terwilliger. Let me just finish, 10 seconds. I sadly
have to tell you that culture at the Department of Justice has
changed completely in the last 10-15 years.
Ms. Balint. The whole idea--so, to stay with what you're
saying, the whole idea behind the Department of Justice, right,
is supposed to be enforcing the law without fear or favor,
correct?
That's what the American people want. That's what
Vermonters want. I hear that from them all the time. That's
what our Constitution actually demands.
So, when a U.S. attorney stands before a judge and say that
they are there not to represent the people, but to represent a
President, understandably, there are alarm bells that start
ringing.
We're two months into this administration. So far, we've
had a U.S. attorney publicly State that his office is composed
of President Trump's lawyers, not lawyers for the people, not
lawyers supporting the Constitution, but President Trump's
lawyers.
We've seen political purges of nonpartisan career civil
servants because they did their jobs, including those who were
involved in the January 6th prosecutions. We've seen a shocking
quid pro quo involving the indicted mayor of New York. You said
so yourself: ``It should not be about partisanship within the
office.'' I applaud you for that.
Thank you for being here.
I'd like to turn now to Professor Beske.
Professor Beske, under the legislation offered by the
majority, specifically section 1456(c), the Attorney General
could represent a Federal official in any case, subject to
removal under the statute.
Is it true that this provision could make the Department of
Justice the personal counsel for the President, the Vice
President, or for Federal officials in State criminal or civil
cases? Is there a danger there?
Ms. Beske. There is certainly a danger, because there are
typically, the norm is that there's a separation there.
Ms. Balint. Does that terrify you to contemplate that?
Ms. Beske. It certainly doesn't help me sleep at night.
Ms. Balint. OK. All right. I'll take that as in the
affirmative.
I do think that it goes strongly against what Americans
want, what Vermonters want. They want to make sure--without
fear or favor, they want to make sure we're doing this in a way
that is not corrupt.
There is, in fact, what I think another important key
element here, which is how the public perceives those attorneys
charged with enforcing the law. How important, again to
Professor Beske, how important is the public trust in those who
enforce anticor-
ruption laws?
Ms. Beske. It's extremely important.
Ms. Balint. Tell me more.
Ms. Beske. If the public doesn't have trust in our Federal
justice system, in the justice system, we don't have very much
left.
Ms. Balint. It doesn't hold together, does it?
Ms. Beske. It doesn't hold together.
Ms. Balint. It doesn't hold together.
If the people don't believe that justice is blind,
anticorruption efforts are doomed to fail, and authoritarians
thrive in that environment where there is no public trust.
What my Republican colleagues have done for many years and
in this Committee as well, they've attacked prosecutors.
They've attacked judges. They've dragged public servants,
public servants down here for baseless--in my opinion, baseless
depositions, sent letters full of baseless accusations, blasted
theories, many of them hateful, all over the internet.
What happens then is that Americans become incredibly
skeptical, cynical about if there is any such thing as a
justice system without fear or favor, and I think that should
scare all of us.
I understand, Mr. Chair, I'm over time. I yield back.
Mr. Roy. I thank the gentlelady from Vermont.
I am now going to recognize the gentleman from Missouri,
Mr. Onder, for five minutes.
Mr. Onder. Thank you, Mr. Chair. Thank you to all the
witnesses for being here today.
Last June, the Attorney General from my home State of
Missouri appeared before this Committee, Andrew Bailey, and
testified that Missouri removed a prosecutor who filed
politically motivated cases while refusing to prosecute violent
crimes, even murders.
What the St. Louis prosecutor and Alvin Bragg had in common
was that their campaigns were funded through the Vera
Institute, which receives tens of millions of taxpayer dollars,
as well as funding from George Soros, essentially, being funded
to not prosecute crimes but to take political actions against
political opponents, in the case of Ms. Gardner in St. Louis,
the Governor of the State of Missouri.
It's no secret, of course, that in New York, Alvin Bragg
was on a vendetta to prosecute President Trump.
Mr. Epstein, I wanted to--the Ranking Member said that
there was, quote, ``no Federal question in Alvin Bragg's case
in New York.'' I just wanted to run through that briefly. There
was the allegation, of course, in the New York case that money
was paid in return for a nondisclosure agreement with Ms.
Clifford. Is an NDA illegal?
Mr. Epstein. No.
Mr. Onder. No. Then, in the course of making that payment,
somehow the allegation was that business records were
falsified. As I understand it, that was a misdemeanor with a
two-year statute of limitations that had expired. Am I correct
there?
Mr. Epstein. Yes, Congressman.
Mr. Onder. OK. If the business records were falsified in
furtherance of another crime, then the statute of limitations
wouldn't be expired, and it would be a felony, not a
misdemeanor. Is that right?
Mr. Epstein. Right.
Mr. Onder. Then the question is, what law was violated?
It's my understanding, as stated earlier in your inquiry with
Congresswoman Hageman, it's the FECA of 1971, the Federal
Election Law of 1971.
Congress invested exclusive jurisdiction over that statute
with the FEC and the Department of Justice, as I understand it.
I think that was in your testimony. The FEC looked at the case
that--looked at that allegation and decided that it was without
merit, and the New York court did not have jurisdiction over
that anyway.
Can you explain again how the issue of campaign finance was
crucial to this case and was, indeed, a Federal question?
Mr. Epstein. Yes, I know. Your bewilderment is justified
and explained by a longstanding principle in our American
jurisprudence that, when you have an agency like the FEC that
has expertise in Federal election campaign contributions or
expenditures, and then you have a State trial judge who has no
expertise, that our doctrines say that this judge should stay
the case, refer it to the expert agency, and allow them to
first adjudicate.
If they, in this case, look at the facts and determine we
are not going to act, then you can potentially proceed with a
further criminal prosecution.
I can say that the primary jurisdiction doctrine has been
used in State law prosecutions before to stay those cases. That
was not something that this court was willing to do.
Mr. Onder. A federally motivated--I'm sorry, a politically
motivated prosecutor in front of a politically motivated judge
in a venue, a jurisdiction where President Trump could not get
a fair trial shoehorned a Federal statute over which they had
no jurisdiction or expertise to bring charges against President
Trump on a very obscure crime.
It's just absolutely unbelievable. We had the statue of
Lady Justice being blind. I think justice was anything but
blind in this case.
Well, thank you, Mr. Epstein.
I yield back.
Mr. Roy. With that, I'll now recognize the gentlelady from
California, five minutes.
Ms. Kamlager-Dove. Thank you, Mr. Chair.
So, Mr. Epstein, I have a yes-or-no question for you. Do
you believe in due process?
Mr. Epstein. Yes.
Ms. Kamlager-Dove. OK, thank you.
Mr. Terwilliger, another yes-or-no question for you. Do you
believe in the jury system? Yes or no.
Mr. Terwilliger. I'm not sure what you mean by believe in
it. Do I think that it's a good system in our criminal justice
system? Yes.
Ms. Kamlager-Dove. OK, thank you.
Professor Beske, do you believe that the right to a jury
trial is the very foundation of due process, yes or no?
Ms. Beske. It is one of the mainstays of our system, both
civil and criminal.
Ms. Kamlager-Dove. Absolutely. In fact, our Founding
Fathers would agree with you, because the right to a jury trial
is mentioned three times in the Constitution. It's kind of
important. Not free speech, not even the right to guns, but the
right to a jury trial and to be judged by your peers. Jury
trials are, in fact, how we decide conflicts in this country.
In fact, the President is no stranger to this system. He
has routinely said, ``I don't want a judge to decide my case. I
want a jury, because I want it to be fair.''
So, Professor Beske, are you familiar with the Russian term
``arbitrazh,'' yes or no?
Ms. Beske. Arbitrazh?
Ms. Kamlager-Dove. Yes. It's OK; you can say no.
Ms. Beske. I know the English term. I'm not sure of the
Russian term.
Ms. Kamlager-Dove. The Russian term means the opposite of
fair. You don't get a trial. You have a case that's decided by
a so-called professional judge. There's no due process. There's
no jury of peers. The judges are there to appease the powers
who put them there. So, in Russia, that means the billionaires.
Legislative reforms to end lawfare by State and local
prosecutors is really--let's just say it. It's overburdening
the Federal Government and taking away State sovereignty at a
time when Republicans are talking about cutting costs. This
idea significantly adds more waste, money, resources, and
confusion to an already weighed-down system, because now you
want to push lawsuits to the Federal Courts when the vast
majority of lawsuits involve State interests, State crimes, not
Federal concerns.
For example, sexual assault, bribery, and landlords
threatening tenants, where there's little or no Federal
statutory equivalent, these cases would be outside of Federal
jurisprudence. They want to overwhelm the Federal system by
litigating a State matter in Federal Courts and then force
Federal judges to interpret States' laws.
Well, Federal trial courts are not set up to try State law
cases. What State of jury instruction would they give out,
State or Federal? An Article III judge is important, because
they have lifetime appointments, supposedly to free them from
political affiliations, misgivings, and bias. They have a very
specific type of jurisdictional bandwidth, and State cases are
not within it.
This is how I see the idea going. The President--any
President's cousin gets into a bar fight and sucker punches a
man and knocks out his tooth. So, if the bar fight results in a
civil suit for money damages, the President could pluck the
case and remove it to Federal Court.
Now, we want to cherry-pick the litigants ad nauseam, maybe
only judges with red hats, because the only reason to do any of
this is to be able to put one's finger on the scale of justice
and decide the outcome. That's not justice. What that really is
a merger of the Executive and Judicial Branches, and that is
not Constitutional here in the United States. The Judicial
Branch is supposed to be independent. Without an independent
judiciary, there is no longer a system of checks and balances.
How does this even make sense at a time when you're talking
about shrinking the Federal Government? This ineptitude would
overwhelm the capacity of the Federal judicial system.
I don't know how many people know what goes into the
managing of a Federal Courtroom, but there are a lot of people
who are needed to manage a courtroom. You're going to
exacerbate the system by increasing its caseload?
I challenge anyone in this room to find a single Federal
judge who wants more cases in their courtroom. Their dockets
are already full. This seems to be a violation of the States'
rights to handle their own matters. It is a disastrous attempt
to manipulate the judicial system, and it is a weaponization of
waste when, in fact, you will have more cases improperly or
selectively prosecuted.
My fellow Congress Members, I urge you to get over your
feelings from the last four years and recommit to the United
States Constitution. I urge everyone to turn to your neighbor
and say, ``I don't want my judiciary coopted. I believe in
State sovereignty. I believe in a jury trial of my peers, and I
don't want arbitrazh here in this country, because I do not
speak Russian.''
With that, I yield back.
Mr. Roy. I now recognize the gentleman from Wisconsin for
five minutes.
Mr. Grothman. Thank you.
First, I'd like to thank Congressman Roy for having this
hearing.
We're dealing with a very serious matter and scary matter.
I don't know if people on the other side of the aisle know it,
but, right now, if I show up at your average Lincoln Day Dinner
filled with Republicans or a room full of people who are
primarily Republican, they think what happened in Georgia and
what happened in New York is just a joke. They have zero
confidence, for example, in the New York justice system. I
don't like the fact that we're there, but I think that is what
people think, and I'm one of those people who thinks that way.
By the way, it goes beyond the justice system. I think the
same way about the IRS. They think the same way about our
customs system. They just think today the Federal Government is
something that I would have guessed was from some banana
republic growing up.
The first question can be for any one of you: Do any of you
know any situation other than what just happened in this
country in which a former Chief of State was charged with
crimes and at one point appeared to be facing prison time after
they were removed from office anywhere in the world?
Ms. Foley. Venezuela.
Mr. Grothman. Venezuela. OK. Well, we're headed toward
Venezuela. Anybody else can think of any time around the world
in which--
Mr. Terwilliger. Well, your description, sir, of what many
people think is the degradation of our system, there are many
examples of it around the world. You have Pakistan, for
example, where it seems like every other President is either
assassinated or prosecuted, and then the Judges of the Supreme
Court are themselves prosecuted and investigated.
It's what I was trying to explain to the gentlelady of
Vermont. We used to have a Justice Department where there
wasn't fear or favor, where politics didn't play. Those days
are long gone.
Mr. Grothman. Right. Kind of scary. I agree with you
entirely.
A general question I guess for Mr. Epstein: How does the
lawfare impact the broader relationship between State and
Federal Governments, particularly in terms of Constitutional
authority and separation of powers? I should also say, how does
it affect how the American people view their government?
I mean, we know to a certain extent just the fact that
Donald Trump won the election that people, they just felt being
prosecuted by a court in New York was completely meaningless,
but go ahead.
Mr. Epstein. Yes, Congressman, I think the American people,
who the Constitution was written for them, well understand that
Federal questions are within the Federal sphere, and State
questions are within the State sphere.
The test is, if a legal question can be appropriate, if not
more appropriate, for a Federal Court, that's where it belongs,
not a State Court.
Mr. Grothman. I'll give you three guys a question because
you all hang around with lawyers. Do you know anybody among the
lawyers you hang around with who considered what happened in
New York a serious--something to be taken seriously, something
to be taken as other than just a trumped-up political
persecution to try to prevent Donald Trump from being elected?
How do your lawyer friends when they hear about this case
in the paper, what do they think of it? Do they think, oh, my
goodness, well--
Mr. Terwilliger. I guess the ones I hang out with wouldn't
be expected to extol the virtues of that process if--even
assuming there were any, sir.
Your point is the essential one. Regardless of what lawyers
think, people look at that, and commonsense tells you this was
a travesty of justice.
The gentlelady can talk about the jury system, but if you
cannot admit, based on 200-and-some odd years of our history,
that juries make major mistakes--
Mr. Grothman. We're in a moral free fall in this country.
Juries and apparently prosecutors in New York, just say, ``I've
got power here today; I'm going to harm a politician I don't
like.''
Is that what you were going to say, Mr. Epstein?
Mr. Epstein. Well, what I was going to say is juries are
great in theory, but a lot of what a jury does depend on
instructions that come from the judge.
If you have judges who view their role as political or who
believe that the ends justify the means in terms of what
prosecutors are pursuing, they're going to give instructions
that are limited, that are problematic.
The Federal Courts, certainly, have had numerous examples
of where there becomes judicial review of jury instructions
that raise substantial issues for a defendant's rights. If you
think about the President in the State Court system, that
remedy wasn't necessarily available to him.
Mr. Grothman. Thank you much. We're about where Venezuela
would be. Thank you again.
Mr. Roy. I thank the gentleman from Wisconsin.
I now recognize the gentleman from New York for five
minutes.
Mr. Goldman. I will just say, as a Representative of New
York, New York City, and a former prosecutor in New York, I
resent and object to the insinuation from my colleagues on the
other side of the aisle that a jury of 12 New Yorkers cannot
issue a fair and impartial verdict.
I'm sure that, if I said a jury in Wisconsin could not
issue a fair and impartial verdict because a defendant was a
Democrat, you would object too. You should, because it's
baseless.
All these accusations about lawfare that we hear over and
over and over again have no evidence to support it. You say the
judge in that trial was politically motivated. Why? You say the
judge was motivated. Is it because his daughter works for a
fundraising, digital fundraising firm that all of a sudden
that's politically motivated, that the jury, he can't get a
fair trial now in New York? Give me a break.
Mr. Terwilliger, did you read the search warrant for Mar-a-
Lago?
Mr. Terwilliger. I might have read parts of it. I don't
know that I read the whole thing.
Mr. Goldman. You spent 15 years in the Justice Department
as a prosecutor. I spent 10. I left seven years ago. I hear you
say that, in the last 10-15 years it's been completely
politicized.
I have no idea what you're talking about. When I was there,
I didn't--just like you, I had no idea the political leanings
of my colleagues, of the FBI agents I worked with.
I appreciate your accusations. Maybe, after my five minutes
since I don't have time, I'd love to hear why you think that
all the sudden 15 years ago the Department of Justice changed.
If you read that search warrant and you were a Deputy
Attorney General and you were asked to review that, would you
say that this did not have probable cause?
Mr. Terwilliger. I would assume, without my having read it,
that a magistrate signed it and determined that there was
probable cause. I don't think--
Mr. Goldman. Well, that's obvious. I'm asking you.
Mr. Terwilliger. That's not either here or there.
Mr. Goldman. Well, it is. See, this is why it is, Mr.
Terwilliger, because this is the accusations and allegations
from my colleagues on the other side of the aisle, that the
search of Mar-a-Lago for classified documents after Donald
Trump repeatedly and persistently obstructed justice,
obstructed an investigation, held onto classified documents,
lied about it, told his lawyer to lie about it, that all of a
sudden that search warrant is unprecedented and must be lawfare
and politically motivated. Wrong.
I don't have a question for you right now, Mr. Terwilliger,
but I will because I want to know, and I want to focus on the
here and now. I want to focus on the last six weeks. You were a
Deputy Attorney General, correct, Mr. Terwilliger?
Mr. Terwilliger. Yes.
Mr. Goldman. It was under the George H.W. Bush
Administration. You spent 15 years. You may be Republican now
or were then. I'm sure it had no impact on the job you did.
You're here as a Republican-called witness.
Let me ask you something: As Deputy Attorney General, did
you ever appear yourself in court, because no one underneath
you would actually appear in court to represent the Department
of Justice?
Mr. Terwilliger. I don't recall having to do that, but I
would have if I had to.
Mr. Goldman. OK. I don't know what that means, but you
never did that.
Have you ever heard of any Deputy Attorney General doing
that before the last three weeks?
Mr. Terwilliger. I actually do have some recollection of
that, but it's not sufficiently clear for me to be able to give
you that. Probably not.
Mr. Goldman. Fair enough. Maybe you're right. It was quite
remarkable that the Acting Deputy Attorney General, Emil Bove,
had to appear in the Southern District of New York himself as
the Deputy Attorney General, because seven prosecutors
underneath him resigned rather than defend a plea agreement
that he put in writing was not based on the facts, evidence, or
the law.
Mr. Terwilliger, I'm sure you'll agree with me that the
only job that the Department of Justice has is to follow the
facts, evidence, and the law. Is that right?
Mr. Terwilliger. I would agree with that. I would also say,
sir, that district attorneys have a duty to follow their
orders.
Mr. Goldman. OK, I got to cutoff. Mr. Terwilliger, I didn't
ask you another question.
The other problem we have here is the U.S. Attorney in
Washington, DC. Unfortunately, I don't have enough time to get
into him.
To say that I am the President's lawyer, I hope you
recognize, Mr. Terwilliger, as someone who cares about the
Department of Justice, that this undermines the entire law
enforcement system more than anything that anyone else prior to
January of this year has ever done.
I yield back.
Mr. Roy. I thank the gentleman from New York.
I'd recognize the Ranking Member.
Ms. Scanlon. Yes. I have a couple of unanimous consent
requests. First, I would ask unanimous consent to enter into
the record an excerpt from the Committee's transcripted
interview with Steven D'Antuono, former Assistant Director of
FBI Washington Field Office, on June 7, 2023, in which he
explained that the FBI executed a search warrant for classified
material at Mar-a-Lago because there was probable cause to
believe that Donald Trump did not fully comply with the
subpoena to turn over classified documents.
Mr. Roy. Without objection.
Ms. Scanlon. OK. I also would ask unanimous consent to
enter into the record another excerpt from the transcribed
interview with Steven D'Antuono in which Mr. D'Antuono
explained that he would describe the search of Mar-a-Lago not
as a raid but as a lawful search pursuant to warrant.
Mr. Roy. Without objection.
Mr. Goldman. Mr. Chair, I have a unanimous consent request.
Mr. Roy. Briefly.
Mr. Goldman. I'd like to introduce a The New York Times
article, dated yesterday, entitled ``U.S. Attorney rebuffed by
Justice Department in push to escalate inquiry into Schumer,''
related to Ed Martin, the Acting U.S. Attorney in Washington.
Mr. Roy. Without objection.
Mr. Goldman. Then one more. I have a letter, dated February
12, 2025, signed by me and six other former DOJ lawyers to the
inspector general, Michael Horowitz, asking him to investigate
Acting Deputy Attorney General Bove and Acting U.S. Attorney--
Mr. Roy. Without objection.
Mr. Goldman. Thank you.
Mr. Roy. I now recognize the gentleman from Texas, Mr.
Gill, for five minutes.
Ms. Gill. Thank you, Mr. Chair.
Lawfare is antithetical to the American experiment. It's
explicitly contrary to the rule of law. Yet, it seems to have
been the Democrats' last ditch effort to win the 2024 election
cycle.
In the lead-up to the 2024 election, Democrats knew that
they couldn't fairly win. They were running a candidate whose
cognitive State was in question, that was declining before our
very eyes on national TV while they were trying to tell us that
he was sharper than ever.
Their political strategy reminds me of the line in Orwell's
``1984,'' which was the party told you to reject the evidence
of your eyes and ears. It was their final, most essential
command. That was consistent with the Left's messaging. They
were trying to tell the American people, for instance, that
defunding the police makes our communities safer, that men can
get pregnant and should be sharing locker rooms with our
daughters, and that flooding our country with millions of cheap
serf laborers would be somehow economically beneficial to our
working class.
To get over this messaging issue, they attempted to, again,
flood the country with people that they thought would
eventually become Democrat voters, knowing even now that our
election system had legitimate vulnerabilities to it.
They directed social media companies to censor lawful
speech of American citizens and illegally put President Trump
behind bars for made-up Federal charges in an attempt to
prevent him from getting back into the White House.
What we witnessed was a grotesque exercise of raw political
power by the Democrats against their enemies. That's why I'm
excited about our markup tomorrow. We've got a series of bills
that I think are a good first step in helping ensure this
lawfare doesn't happen again.
I want to talk about one instance in particular, which was
Democrats calling upon corrupt State-level officials to peruse
State-level lawfare and punish President Trump and the millions
of Americans who supported his campaign. Their one last hope
leading up to the election was to concoct a novel legal theory
by Manhattan DA Alvin Bragg. Alvin Bragg in the State of New
York didn't have jurisdiction to hear this case. They knew that
moving forward would violate the settled Supreme Court
doctrine, but, again, this was their last best hope.
The State of New York, with Democrat donor Judge Juan
Merchan overseeing the case, finally got their wish. They
landed a conviction of the President. The American people knew
it was a sham, and now they know the lengths to which the other
side of the aisle will go to attack their political opposition.
Mr. Epstein, thank you so much for being here. We really
appreciate it and appreciate your work to restore law and order
in this country. I want to ask you a couple of questions.
The charges in the case against President Trump in New York
largely revolved around the Federal election Campaign Act. Is
that correct?
Mr. Epstein. Yes, Congressman.
Mr. Gill. That act grants exclusive jurisdiction over
Federal election issues to the FEC and the DOJ. Is that
correct?
Mr. Epstein. That's correct.
Mr. Gill. Did the State of New York and DA Bragg have any
jurisdiction over those supposed campaign finance violations?
Mr. Epstein. No. In fact, Congressman, I would point out
that President Trump, during his first administration, made
disclosures about payments in his financial disclosures, which
is clear evidence that's a kind of Federal nexus and it's
wholly within not just the FEC but the Office of Government
Ethics.
Mr. Gill. Alvin Bragg was certainly aware he was pursuing a
frivolous case here, yet he decided to very aggressively and
very publicly move forward with support from the Biden DOJ.
What motive do you think, or would you ascribe to Bragg to
move forward with such a clearly baseless case?
Mr. Epstein. I can't speculate on what his motives were,
but I think enough is spoken by how the American people
recently determined who should be the President of the United
States. That there is a general view in the public mood of the
American public that looking to prosecute political enemies
raises serious concerns about not just the law but what culture
do we want in America.
Mr. Gill. I agree. Thank you, Mr. Epstein.
With that, Mr. Chair, I yield back.
Mr. Raskin. Mr. Chair, a UC request. This is from Reuters,
January 20, ``Who has Donald Trump threatened to criminally
prosecute as President?''
Mr. Roy. Without objection.
Mr. Raskin. Thank you.
Mr. Roy. I would now recognize the Ranking Member for five
minutes.
Chair Jordan. I thank the Chair. Mr. Epstein, it backfired,
didn't it?
Mr. Roy. Wait, Mr. Jordan--
Mr. Epstein. Yes, sir.
Mr. Roy. Who was it, Mr. Gill who went last? Then, it's the
Ranking Member.
Chair Jordan. Oh, I'm sorry.
Mr. Roy. I'm sorry, Mr. Jordan.
So, now I'll recognize the Ranking Member, Ms. Scanlon, for
five minutes.
Ms. Scanlon. Thank you. Thank you very much.
Sometimes things get a little more complicated around here
than they should be. We're dealing now with a fairly complex
statute, basic core Constitutional principles and civil and
criminal procedure. Gets pretty far in the weeds. Of course,
there is a really simple way to prevent States from bringing
criminal charges against Presidents and former Presidents, and
that is, of course, for Presidents and former Presidents not to
commit prosecutable crimes, and that's been something that's
served our country really well with one notable exception.
Since we are here on this bill, Professor Beske, you
explained in your testimony that this bill has the potential to
expand the Federal officer removal statute to encompass purely
private lawsuits based on personal conduct rather than official
duties. I know my colleagues across the aisle are very
concerned about the importance of federalism, but it seems like
this bill threatens to undercut that federalism, and the
Constitutional division of power. Can you talk more about that
provision?
Ms. Beske. Yes. I'm looking at provision--
Ms. Scanlon. I think it's Section 2(a)(2) of the bill that
would add section 5.
Ms. Beske. Yes. Section 5, which permits removal of any
action against the President or Vice President where the State
Court's consideration will hinder, burden, or delay the
execution of the duties of the President or Vice President.
This applies on its face only to sitting Presidents and
Vice Presidents. Of course, we have a norm that we don't charge
sitting Presidents and Vice Presidents with criminal conduct.
There's a Supreme Court opinion that says they are immune from
suits for civil conduct that is official. So, not criminal. Not
civil conduct that's official. The only thing that's left is
civil conduct that is personal, private.
Essentially, the way I'm reading this, the only thing left
on the table is this proposed bill adds permitting removal of
actions against the President or Vice President where the State
Court's consideration may interfere, hinder, burden, or delay
private suits and--OK. The Supreme Court has specifically said
private suits--for example, Clinton v. Jones said you can
totally sue the President during Clinton's term. He asked for
temporary immunity, and the Supreme Court said. ``no.'' You can
sue President Clinton during his term, no temporary immunity
granted. This appears to expand and say, sorry, we're going to
allow removal when a court determines that it might interfere.
Ms. Scanlon. OK. That would be with respect to a President,
a sitting President, or Vice President. So, basically--
Ms. Beske. Private suits.
Ms. Scanlon. --simply the act of being President would give
him a pass on everything.
Ms. Beske. The Trump University suits and Clinton v. Jones
suits. That's a big, huge expansion.
Ms. Scanlon. Sure. There's another provision in here that I
found really troubling. It says--it's section (d)--``No court
may define or limit the scope of duties of an official of the
Executive Office of the President.''
That would mean that no court could decide--that only the
President could decide what were the President's official
duties. How does that square with our Constitution?
Ms. Beske. Well, what it does is basically read the color
of office requirement out of the statute, because how can you
decide what is--whether someone's active within the color of
their office if you can't ask, well, what is their office? What
does it entail? What's within and without the scope of their
duties? It seems to be saying you can't look at what their
duties entail. If you can't look at what their duties entail,
you sort of can't answer that question. If you can't answer it,
then it's not really an element.
Ms. Scanlon. Well, then doesn't that really strike at the
core idea of checks and balances, the different branches of
government acting as checks and balances, if the courts are
forbidden from determining whether or not something is within
the duties of the President?
Ms. Beske. Well, it certainly removes that question from
the court's purview altogether. What it also does is it greatly
expands the number of cases that you are resting from State
Courts and, in theory, allowing into Federal Courts. So, for
me, it raises some serious federalism issues and that's
problematic.
Ms. Scanlon. OK. Feels like it's an ultimate get-out-of-
jail-free card.
It looks like my time's expired, so I'll yield back.
Mr. Roy. I thank the gentlelady from Pennsylvania.
I'll now recognize the Chair of the Committee, Mr. Jordan,
for five minutes.
Chair Jordan. Thank you, Mr. Chair. It backfired, didn't
it, Mr. Epstein?
Mr. Epstein. Yes, sir.
Chair Jordan. The gentleman from New York, our colleague on
the other side, talked about he trusts 12 jurors in New York,
but the real jury was the 330 million Americans. We the people
are the ultimate jury in our great country.
You think about what did--I love the list you put together,
on page 1 or 2 here of your testimony. It was the dossier--
false dossier that they took to a secret court to get a warrant
to spy on a Presidential campaign. That wasn't enough. The
Mueller investigation--they could do all the Trump-Russia
Mueller investigation--finds no collusion and no coordination,
none whatsoever.
Then they raid his home, part of the Jack Smith
investigation, Alvin Bragg, Fani Willis, the other Jack Smith
investigation, the 14th Amendment, and the American people saw
through it all. They saw through it all because it was lawfare.
The Democrats' argument seems to me to be, oh, criticizing
lawfare is worse than the lawfare itself. It's just not what it
is.
Tell me this--part of this lawfare and some of the details.
Who's Matthew Colangelo?
Mr. Epstein. Matthew Colangelo was an Acting Associate
Attorney General in the Garland Department of Justice who then
moved to the Manhattan DA's Office to work on the Bragg
prosecution.
Chair Jordan. What did he do before he was at the
Department of Justice? Where did Matthew Colangelo work prior
to that?
Mr. Epstein. I don't recall.
Chair Jordan. I think it was the New York Attorney
General's Office, wasn't it?
Mr. Epstein. OK. Makes sense.
Chair Jordan. Tish James' office. Here's a guy who worked
for Tish James, then worked for the Biden-Garland Justice
Department, and then Alvin Bragg says we want him to work for
us. According to media, he came to work for Alvin Bragg for
what reason? I think you put it in your testimony.
Mr. Epstein. Yes. He obviously was motivated by the case
against President Trump.
Chair Jordan. Yes. To jumpstart their investigation, is the
term that was used in the press.
We asked for any communications between Alvin Bragg and the
Biden Justice Department, and they said we've looked, and we
can't find any. You disagree with that. You disagree with what
Mr. Garland told this Committee, the House Judiciary Committee.
You disagree with that. Tell me why you disagree with that.
Mr. Epstein. Well, it's not just a question of
disagreement. It's a question of facts. The New York Manhattan
DA's Office let America First Legal know that there were 36
responsive records.
Chair Jordan. When Merrick Garland told this Committee we
can't find anything, that wasn't accurate, was it?
Mr. Epstein. I'll let this Committee make that inference,
but it seems so.
Chair Jordan. Wasn't accurate based on what Alvin Bragg
told the court, right?
Mr. Epstein. Correct.
Chair Jordan. Well, go figure. We'd like that information.
That's going to be the next thing we ask Attorney General
Bondi, if we can get access to some of those 36 responsive
records that you talked about.
Now, Mr. Terwilliger, this legislation that we're talking
about where you can take the case to Federal Court when you got
some State and local prosecutor coming after a Federal
official, it's not just for Republicans, is it?
Mr. Terwilliger. It's certainly not. In fact, both as to
formers and as to the reinstalling the substantive scope,
expanded scope that Congress intended going back to at least
2011, every former official of the Biden Administration would
cheer you on.
Chair Jordan. Yes. It's just as important for if some
prosecutor in Arkansas, Oklahoma, some Red State decides, for
whatever reason, he's going to--I'm assuming based on the facts
and the evidence, but let's say it's maybe a little shaky.
Maybe not. Maybe it's a great case. Still, we're saying OK to
the Chief of Staff of President Biden, Mr. Zients, if they're
coming after you, you can move that to Federal Court. You don't
have to go into some State Court in a Red State. You can go to
Federal Court. It applies across the board because we want
equal treatment under the law in this great country.
Mr. Terwilliger. So true, Mr. Jordan. The fact of the
matter is that I really would urge, particularly your
colleagues on the other side of the aisle on this Committee, to
go back and look at what those two Democrat-appointed
Presidential judges said in the 11th Circuit Case. They
recognized just how perniciously dangerous it is. What is a
Chief of Staff supposed to do when the President says, I want
you to set up a phone call. I need to talk to so-and-so. Oh,
wait a minute. Am I going to get in trouble with Fani Willis
because I do this?
Chair Jordan. Yes.
Mr. Terwilliger. It's absurd.
Chair Jordan. No, it's absurd. That's absurd. Just the
overall attack on Executive privilege, for goodness' sake. This
goes clear back to George Washington. Something we have
honored.
The people most close to the President are the White House
Counsel and his Chief of Staff, and they've always had that
privilege there until now. In their effort to get President
Trump, they said we're going to violate something that's been
around since Washington, and they did this. What we're saying
is let's at least fix it so that you can go to Federal Court,
fix part of it so that you can go to a jury that's different
than some local prosecution, some jury at a local level.
Mr. Terwilliger. Yes, sir. These are quintessential Federal
questions that have to be brought into Federal Court.
Chair Jordan. I thank the Chair and our witnesses for--I'm
sorry, Professor Foley. I didn't get to you. I usually like to
try to get a question to all our witnesses in these type of
hearings.
With that, I will yield back to the Chair.
Mr. Roy. I thank the Chair of the Full Committee, Mr.
Jordan.
I'll now recognize myself for five minutes for questions.
One thing that was raised earlier a little bit is about how
15 years ago, the DOJ may have gotten a little bit politicized.
Mr. Terwilliger, you were referencing to that.
I served in the Department of Justice about 15 years ago--
right on the number--when I was a Special Assistant United
States Attorney. One thing that I would note--Jack Smith has
been at the center of a lot of these issues and debates in
terms of lawfare. Obviously, that's in the Federal context.
When he entered his role as Special Counsel, Smith had already
had a pattern of targeting Republican politicians.
For example, in 2013, when he served as the head of DOJ's
Public Integrity Section, Jack Smith encouraged his
subordinates to contact IRS official Lois Lerner to discuss how
the Federal Government could bring charges against conservative
nonprofit organizations.
Was that a depoliticized Department of Justice, Mr.
Terwilliger?
Mr. Terwilliger. No, sir. You've hit right on it. When you
use your commonsense to look at what's happened. When you see
some of the former prosecutors that were involved in some of
these cases showing up as commentators on MSNBC, spouting
political rhetoric, you don't have to be a genius to figure out
what happened at the Department.
Mr. Roy. It's not the only example, right? We can go down
Lois Lerner. We can go down a whole bunch of different
possibilities. How about Eric Holder himself with Fast and
Furious? Wasn't like the Department of Justice was looking to
go dive deeply into what was going on with respect to
specifically what Eric Holder did.
Mr. Terwilliger. I love that example, Mr. Roy, because can
you imagine if Pam Bondi stood up today and described herself
as Donald Trump's wingman as Eric Holder described himself for
President Obama?
Mr. Roy. Well, you can see why I was only a Special
Assistant U.S. Attorney for a couple of years during the Holder
era and decided to move on and work for Governor Perry down in
Austin.
Let me tell you something--let me ask you this question.
You've cited the two members of the 11th Circuit panel, right.
They concurred in the result, but they raised this issue. Is
that right?
Mr. Terwilliger. That's correct.
Mr. Roy. The issue they raised--and I'm quoting,
In short, foreclosing removal when States prosecute former
Federal officers simply for performing their official duties
can allow a rogue State's weaponization of the prosecution
power to go unchecked and to fester.
Is that a correct quotation?
Mr. Terwilliger. That is correct, yes, sir.
Mr. Roy. You share that concern, do you not?
Mr. Terwilliger. Absolutely.
Mr. Roy. Could you just describe a little bit--we've
discussed it at some length here, but as we take up this
legislation, at the heart of it lies the question that was
going on here in the exchange between the Ranking Member and
Professor Beske and some others about the job and the nature of
the job.
If you're in the case of your client, the Chief of Staff to
the President of the United States, and the President of the
United States asks you to set up a call--and there's the
inherent blend between official and political in what we do,
right. Something we see as official, you're the Chief of Staff
and working through it, then there's some political questions
that come up.
How is it that we can proceed if we don't have clarity with
respect to the actual job with respect to how you were
describing that earlier? Can you expand on that a little bit?
Mr. Terwilliger. Well, I would submit to you, Mr. Roy, that
there is absolute clarity in terms of that job. In 1939,
Congress passed a statute and said, OK, ``we're authorizing
assistants to the President.'' Never existed before. Before
that, they had always been borrowed from agencies and brought
into the White House. Presidential Assistants were authorized
by Congress, and Congress said their duty shall, quote, ``be as
prescribed by the President.''
When the President asks you to make a phone call, you're
acting within the scope of your office.
Mr. Roy. Do you think it would be good for the country were
it to be true that, for example, some, I don't know, pretty
aggressive district attorneys in South Texas or maybe in
working coordination with the Attorney General of Texas decided
to say, you know what, we think that the actions of--maybe it
was DH Secretary Mayorkas, maybe it was the Attorney General--
maybe their actions in leaving the borders wide open to
endanger Texans was actually in violation of law. Maybe they
should be prosecuted under Texas law because of what they did
to the people of the State of Texas, the people in my district
who are no longer alive, the people who have suffered, the $11
billion we've had to spend in Texas.
Do you think it's a good direction for us to go to have it
such that State DAs and State Attorneys General can then go
after officials in their--carrying out their official capacity
and the ranges around that official capacity? Do you think
that's a good thing or a bad thing, and do you think it's
important for us to clarify that law?
Mr. Terwilliger. It's a terrible thing to go in that
direction, but that's the direction it's going. It is
inevitable that the worm will turn and there will be Democrat
officials of political appointees who will be subject of just
the kind of action you describe.
This is a place for Congress to assert itself and to say,
just as the title of this statute says, we want to try to end
this kind of lawfare. We may not be able to do it completely,
we may not be able to do it perfectly, but it's a very, very
important step.
Mr. Roy. Thank you, Mr. Terwilliger. Thank you to the
witnesses. I think the Chair of the Committee seeks
recognition.
Chair Jordan. If I could, if the Chair would indulge, I
have one other question.
Mr. Roy. I would be happy to--
Chair Jordan. Give an extra question to the Ranking Member?
Mr. Roy. I would be happy to ask you another question if
you'd like it.
Ms. Scanlon. Go ahead.
Mr. Roy. Yes, sir.
Chair Jordan. Just wanted to underscore a subject we got in
right at the end of my five minutes with Mr. Terwilliger.
Mr. Terwilliger, why do we have Executive Privilege?
Mr. Terwilliger. It's an excellent question. Because the
President needs the most candid possible advice that he can
get, and his aides have to know that if they say, no, Mr.
President, that's a really dumb idea, that this communication
is going to be privileged and protected.
Chair Jordan. Who ultimately benefits from Executive
Privilege, though? Who's the prim---
Mr. Terwilliger. The people. The people.
Chair Jordan. We the people. Exactly. It doesn't exist to
protect the President or his staff. It exists for us, for the
American people. We the people. That's why you want candid
communications to take place between the top officials in the
West Wing, so they can make decisions that benefit ``We the
People.''
The Left has said we want Donald Trump so bad, we're
willing to forgo that, hurt the people so we can get President
Trump. Thank the Good Lord it didn't work.
I yield back.
Mr. Roy. I'll recognize the Ranking Member for--the
gentleman used about a minute--for a question that's along
those lines.
Ms. Scanlon. Oh, I have to ask a question, not just make a
screed? OK.
Mr. Roy. You can use your minute as you see fit--as the
Ranking Member sees fit.
Ms. Scanlon. Can we just bring this back to maybe why we're
supposed to be here?
We're looking at this statute, Professor Beske. Why did the
Supreme Court in Mesa say that Federal officers have to have a
colorable Federal offense, and what would this statute do to
it?
Ms. Beske. That's because of Article III. Article III--we
live in a system of enumerated powers per the Constitution.
Just like Congress has a list of things it can do under Article
I, so, too, there's a list of things that courts can do, and
that's Article III.
Even though you have power to confer on lower Federal
Courts what they get to do and whether they exist, you are bet
on by Article III, and they have to have a Federal ingredient.
That Federal ingredient is--as Mesa said, ``that Federal
ingredient is the colorable Federal defense.'' Mesa said here's
what it's not. It's not just you have a Federal job and this is
one of your Federal job's duties. Mesa rejected that.
Ms. Scanlon. It's pretty well established. This attempt
would expand Federal jurisdiction beyond Article III
boundaries, and that's why we suggest everyone should oppose
it.
I yield back.
Mr. Roy. I thank the gentlelady. I thank her for her
indulgence. I tried to recognize you equally.
I appreciate the witnesses. This concludes today's hearing.
We thank the witnesses for appearing before the Subcommittee.
Without objection, all Members will have five legislative
day to submit additional written questions for the witnesses or
additional materials for the record.
Without objection, the hearing is adjourned.
[Whereupon, at 4:41 p.m., the Subcommittee was adjourned.]
All materials submitted for the record by Members of the
Subcommittee on the Constitution and Limited Government can
be found at: https://docs.house.gov/Committee/Calendar/ByEvent
.aspx?EventID=117974.
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