[Senate Hearing 119-177]
[From the U.S. Government Publishing Office]
S. Hrg. 119-177
CONFIRMATION HEARING ON FEDERAL
APPOINTMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
MAY 21, 2025
__________
Serial No. J-119-19
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
61-819 WASHINGTON : 2026
COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois,
JOHN CORNYN, Texas Ranking Member
MICHAEL S. LEE, Utah SHELDON WHITEHOUSE, Rhode Island
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
JOSH HAWLEY, Missouri CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
JOHN KENNEDY, Louisiana MAZIE K. HIRONO, Hawaii
MARSHA BLACKBURN, Tennessee CORY A. BOOKER, New Jersey
ERIC SCHMITT, Missouri ALEX PADILLA, California
KATIE BOYD BRITT, Alabama PETER WELCH, Vermont
ASHLEY MOODY, Florida ADAM B. SCHIFF, California
Kolan Davis, Chief Counsel and Staff Director
Joe Zogby, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
OPENING STATEMENTS
Page
Grassley, Hon. Charles E......................................... 1
Prepared statement........................................... 48
Durbin, Hon. Richard J........................................... 2
Tillis, Hon. Thom................................................ 5
Moody, Hon. Ashley............................................... 6
VISITING INTRODUCERS
Moreno, Hon. Bernie, U.S. Senator from Ohio...................... 4
NOMINEES
Edlow, Joseph.................................................... 7
Questionnaire................................................ 55
Responses to written questions............................... 74
Additional materials......................................... 126
Gaiser, T. Elliot................................................ 9
Questionnaire................................................ 129
Responses to written questions............................... 184
Additional materials......................................... 216
Squires, John.................................................... 10
Questionnaire................................................ 232
Responses to written questions............................... 254
Additional materials......................................... 281
Woodward, Stanley Jr.,........................................... 12
Questionnaire................................................ 286
Responses to written questions............................... 312
Additional materials......................................... 345
APPENDIX
Items submitted for the record................................... 347
CONFIRMATION HEARING ON FEDERAL
APPOINTMENTS
----------
WEDNESDAY, MAY 21, 2025
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:16 a.m., in
Room 226, Dirksen Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley [presiding], Lee, Cruz, Hawley,
Tillis, Kennedy, Schmitt, Britt, Moody, Durbin, Whitehouse,
Coons, Hirono, Booker, Welch, and Schiff.
Also present: Senator Moreno.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. The meeting will come to order. Good
morning to everybody.
We are considering the nomination of Stanley Woodward,
serving as Associate Attorney General; Elliot Gaiser, serving
as Assistant Attorney General, Office of Legal Counsel; Joseph
Edlow to serve as Director of U.S. Citizenship and Immigration
Services; John Squires, Director of U.S. Patent and Trademark
Office.
I would like to thank the families who are here and the
friends of the nominees. I am sure you are all very proud of
these nominees.
Over the last several years, we've seen an unprecedented
flood of illegal immigrants into the countries. Millions have
poured in. Some were drawn by the promise of a better life.
Some fled various forms of economic and other hardships. Some
were hardened criminals and gang members. But all decided to
break our laws to come here.
Rather than stop this, the previous Administration threw
open the doors, in doing so, openly flouted our immigration
laws. The humanitarian parole statute was brazenly violated.
Mandatory removal language and statutes became optional. Public
charge requirements were ignored. Sanctuary cities were praised
as heroic rather than criminal. And most tragically, actual
victims of violence by illegal immigrants were downplayed,
ignored, and forgotten. The courts contributed to this crisis
as well and often stood passively by, our immigration laws
being ignored.
Now that Trump is in office, he is trying to enforce our
immigration laws, carry out his campaign promise to the
American people to reverse the flood of illegal immigrants.
Suddenly, the courts have decided to step in.
Democrats encourage this lawless behavior. The Democratic
nominee for Vice President called ICE Trump's modern-day
Gestapo, practically inviting violence against them. According
to the Department of Homeland Security, ICE officers are now
facing a 413 percent increase in assaults. I suppose concerns
about threats of political violence only goes one way. I agree
with my Democratic colleagues that the rule of law is a
cornerstone of our republic, but some of our Nation's most
important laws are those that protect our borders.
Several nominees before us today will have an important
role in faithfully executing these laws and the will of the
American people expressed in our most recent national
elections.
Turning to nominees, I would like to start by introducing
Mr. Woodward to the Committee. Mr. Woodward received his
bachelor's and master's degree with honors from American
University and his law degree with honors at Catholic
University Columbus School of Law. After clerking for three
different judges in the District of Columbia, he joined Akin
Gump, where he practiced for 10 years. There, he handled a
variety of complex litigation matters and Government
investigations and was awarded his pro bono service. His
practice during this time involved many of the issues he
oversees.
Go ahead.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Senator Durbin. Thank you, Mr. Chairman,
and congratulations to the nominees and their families.
Given the challenges which this Administration is facing in
court, record-breaking numbers of challenges, we can certainly
understand why he wants a team on his side in the
Administration. Earlier this year, I asked Justice Department
nominees a simple question. May a public official defy a court
order? Shockingly, the nominees, including the future Solicitor
General, John Sauer, refused to give an unequivocal response.
Now, days ago, Mr. Sauer faced the same question, and he
repeated this legal dodge before the Supreme Court of the
United States.
During arguments in a case challenging the President's
illegal birthright citizenship Executive order, Justice
Barrett, known as a Trump nominee, asked Mr. Sauer if the
Administration would follow circuit court rulings. Mr. Sauer
responded that the Governor's policy is to ``generally''--
generally--``respect circuit precedent, but not necessarily in
every case.''
As our colleague Senator Kennedy said earlier this year,
``Don't ever, ever take the position that you are not going to
follow the order of a Federal court, ever.
Mr. Gaiser has been nominated to lead the Office of Legal
Counsel, which provides legal advice to the President and all
executive branch agencies. I want to hear what he believes that
the policy of the Federal Government should be and whether he
can ignore court rulings that don't suit any President's whim.
From day one, the Administration has had one goal, bringing
our immigration system to a breaking point. I will confess some
prejudice in this matter. I am the son of an immigrant who came
to the Chairmanship of this Committee. I am proud of it. If you
visit my office, you are going to find my mom's naturalization
certificate behind my desk, making it clear to all visitors
where I stand on the issue of immigration. I like to believe
that my family, and virtually all of the immigrant families,
have made this a stronger Nation.
Beyond unlawfully attempting to end birthright citizenship,
which is enshrined in the Constitution, the Administration has
made it harder for legal immigrants to apply for citizenship
and naturalize. This Administration has made it harder for
Dreamers who want to do the right thing. Now, these were kids
brought to the United States by their parents. They didn't make
a conscious decision to get in the car and drive across the
border. Their parents did. They have grown up here in the
United States, shown up in the classrooms, and pledged
allegiance to the same flag we pledge allegiance to every day.
It wasn't until they were teenagers that they knew the reality
that they face. They want to do the right thing. They want to
apply for programs like DACA so that they can receive work
permits and continue to contribute to the American economy.
I am disappointed to hear that Mr. Edlow, who came by my
office, nominated to lead USCIS, opposes DACA, when even
President Trump claims that he doesn't want to deport Dreamers.
Despite his personal opinions, I want to hear how Mr. Edlow
will ensure that USCIS will promptly process DACA applications
of eligible Dreamers.
The Administration has also ended temporary protective
status for people who fled Afghanistan and Venezuela, falsely
claiming these countries are safe to return to. These actions
are cruel.
In the name of carrying out Trump's mass deportation
agenda, Attorney General Bondi has made the Department of
Justice a shell of its former self. Thousands of Federal law
enforcement agents have been diverted from drug trafficking and
violent crime to deporting immigrants who pose no threat to our
safety.
Mr. Woodward, nominated to be the number three official of
the Justice Department, will oversee Justice Department
grantmaking, the Civil Rights Division, and many other
components now under attack.
The Justice Department, at the direction of DOGE, took
their chainsaw to hundreds of millions of dollars in Federal
grants to support public safety and our police. Programs
supporting violence reduction, victim services, child
protection, and substance use and mental health have been
gutted. Ask law enforcement in your favorite community how you
stop crime. They have an important job to do, and we know that.
When we dial 911, we want to make sure that the right person is
answering the call. But they will also tell you we cannot
arrest our way out of violent crime. We need to do more. I
believe that.
For nearly 70 years, under Republican and Democratic
Administrations alike, the Civil Rights Division protected the
civil and constitutional rights of all Americans. Once known as
the crown jewel of the Justice Department, it has now been
reduced to litigating a narrow set of cases aligned with the
MAGA agenda. This is anathema to how this division has operated
historically.
I want to hear from Mr. Woodward whether the Justice
Department will continue to capitulate, or will it help restore
the Justice Department's intended function, protecting the
safety and rights of all Americans.
Thank you, Mr. Chairman.
Chairman Grassley. Now, in this order, we will hear from
Senator Moreno, Tillis, and Moody to introduce the nominees.
Senator Moreno.
STATEMENT OF HON. BERNIE MORENO,
A U.S. SENATOR FROM THE STATE OF OHIO
Senator Moreno. Chairman Grassley and Ranking Member Durbin
and Members of this Judiciary Committee, it is my absolute
honor to introduce to you T. Elliot Gaiser as President Trump's
nominee for the U.S. Assistant Attorney General for the Office
of Legal Counsel. Mr. Gaiser currently serves as Ohio's
Solicitor General, and of course, we all know Ohio is the
greatest State in the country. He has zealously advocated for
Ohio and its citizens. As the State's Solicitor General, he
represents Ohio and its agencies on the appeals in the United
States Supreme Court, the U.S. Court of Appeals for the Sixth
Circuit, the Ohio Supreme Court, and other State and Federal
courts. He has served the State remarkably, and I am so proud
that President Trump took well-deserved notice of Mr. Gaiser's
brilliant legal talents.
Immediately prior to his appointment as Solicitor General,
Mr. Gaiser worked in the issues and appeals practice at a
global law firm. In private practice, he focused on appeals and
provided strategic counsel to clients in a range of industries
regarding litigation and regulatory matters. He has litigated
complex disputes all over the country.
And in Ohio, Mr. Gaiser clerked for Associate Justice of
the Supreme Court Samuel A. Alito, for Judge Neomi Rao of the
U.S. Court of Appeals for the D.C. Circuit, and Judge Edith H.
Jones on the U.S. Court of Appeals for the Fifth Circuit.
Mr. Gaiser started his legal education at the national
championship Ohio State University, Moritz College of Law, and
earned his J.D. from the University of Chicago--see, Ranking
Member, we will give you some credit as well--College of Law in
2016. He received his undergraduate degree from Hillsdale
College, where he graduated magna cum laude. He is 35 years
old. This is all something he has accomplished in such a short
period of time.
And on a personal note, to the Ranking Member's comments, I
appreciate that very much. And if you come to my office, you
will see my H-1B visa. You will see my naturalization
certificate. I was extraordinarily proud. One of the moments I
remember more than anything else in my life was the ability to
raise my right hand and pledge allegiance to the United States
of America and be welcomed to this country.
I would ask you and all the members of this Committee to
understand that that moment is so important. And we have to
honor the people who followed the law to come here legally, who
patiently waited to become a U.S. citizen and be welcomed here
and to stop rewarding people who break our laws, skip in line
of those in front of us.
And I can tell you that I have no doubt that Mr. Gaiser
will continue to make not only Ohio proud, but this Nation
proud, as he serves President Trump and Attorney General Bondi
as the United States Assistant Attorney General for the Office
of Legal Counsel. Thank you.
Chairman Grassley. Thank you, Senator Moreno. And you may
go if you want to.
Senator Tillis.
OPENING STATEMENT OF HON. THOM TILLIS,
A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Tillis. Thank you, Mr. Chair.
I am pleased to introduce John Squires, the President's
nominee for the Undersecretary of Commerce and Secretary of the
U.S. Patent and Trademark Office.
When I first met John, I told him that the USPTO needed a
fierce advocate for strong IP rights. And after a review of his
record, I am convinced that he is the right person for the job.
John and I trace back similar roots. He was at IBM before
becoming a lawyer. I was at IBM before I made the fateful
decision to go into politics. There are several things and
experience, though, that I think you will see in the
confirmation hearing today that make him very well suited to
lead the USPTO.
John is a 9/11 survivor, and that has greatly shaped his
perspective on patent eligibility. And I am sure that we will
get into that during the hearing. Like me, he believes that
startups and emerging companies are critically important to our
innovation ecosystem. And I believe that he can bring expertise
to the office that will make sure that that segment of our
innovation economy is well represented.
For example, small businesses, firms having less than 10
employees receive about 60 percent or more of the patents per
capita than corporations. And startups and small businesses
create almost half of all the U.S. jobs and growing. That is
why we absolutely have to get this right, so that the pyramid
of our innovation ecosystem stays strong.
John is also a consensus builder. He has gotten great
reviews from prior directors of both political parties. That is
important for the work that we are doing here. I have said
multiple times in the IP Subcommittee, I love the Subcommittee
because it is an island of calm in a sea of chaos at the main
Committee. We work on a bipartisan, bicameral basis, and I
think John is going to be a great asset in that role.
America innovation needs a champion dedicated to ensuring
that this country maintains strong, reliable, and predictable
patent rights. We, the United States of America, must remain
the innovation leader in the world. And I believe that John
Squires will bring the leadership to the USPTO to make sure
that we accomplish that end. I strongly support his nomination,
and I look forward to asking him a number of questions.
And by the way, to the little baby, I will tell you all
what I have said to others. As a grandfather and a father of
two kids, nothing is more beautiful than the sound of someone
else's baby crying.
[Laughter.]
Senator Tillis. I fully support Mr. Squires' nomination.
Chairman Grassley. Senator Tillis, thank you.
Now, Senator Moody.
OPENING STATEMENT OF HON. ASHLEY MOODY,
A U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Moody. Thank you. As one of two Senators who are
moms of kids in school, I think it is also a good distraction
tactic for mothers because all I wanted to do was run over
there. So my Democrat colleagues, be on notice if you ever want
to distract us, pack the room with babies.
Good morning. It is my honor to be here today to introduce
President Trump's nominee to be the next Director of the United
States Citizenship and Immigration Services, USCIS, Joseph
Edlow. Mr. Edlow's nomination comes in an extremely critical
time in our Nation's history. As Florida's attorney general, I
sat aghast as one of the first actions of Biden and his
Administration was to tell our local and State officers to
stop, that there will be no more detainers, and that they were
to just release everyone here committing crimes back into our
communities. They then, at one point, started taking people
that were finishing Federal prison sentences, and instead of
deporting them back home, as had always been traditionally
done, pushing them back into our communities.
And as the borders were open and mass quotas were installed
in terms of pushing people into our interior that were barely
vetted, and as new programs were developed to fly people
straight here, barely vetted, it became abundantly clear, as we
saw the aftermath and consequences of that, that a strong
vetting system, indeed a strong USCIS, and someone at the helm,
what is critically important to this Nation's security, and
indeed our families' securities.
We have experienced over the last 4 years watching
millions, some say upwards to 20, but at least 11 million
people flood this country. We don't know who they are. We don't
know, in many cases, their criminal backgrounds, although we
are figuring that out now, and now we see why it is so
important that it wasn't that we just needed to seize
operational control of the border, and I am so grateful for
President Trump for doing that. It is now so important that our
legal immigration system function as it was meant to, and that
is screen and vet and guarantee that the safeguards and laws we
have put in place to make sure those that are coming here are
coming because they want to add and contribute to this country,
and they do so legally. It is so important we have someone at
the helm to make sure that happens.
The Director of U.S. Citizenship and Immigration Services
is responsible for leading the charge to screen and vet those
coming to our country legally, and I know Joseph Edlow is the
right man for the job. In fact, he has already done the job. He
graduated law school and began his legal career as an associate
attorney. Mr. Edlow joined U.S. Immigration and Customs
Enforcement, or ICE, and in 2008, as Assistant Chief Counsel in
Baltimore Office of Chief Counsel, he litigated removal matters
and handled every type of immigration case within the
jurisdiction of that court.
In 2015, Mr. Edlow then worked in the House of
Representatives, first as counsel, focusing on immigration, and
then for the House Judiciary Committee, Subcommittee on
Immigration and Border Security. As counsel, he worked on
legislative and policy matters related to immigration
enforcement and criminal immigration law.
In 2018, he joined the Department of Justice as a deputy
assistant attorney general, where he was responsible for DOJ's
regulatory agenda for all immigration matters, and in 2019, he
became Chief Counsel for USCIS, later serving as Deputy
Director for Policy, and then as Acting Director. I cannot
think of anyone more qualified to take on this job, and in
fact, putting people in these roles who did not have that type
of experience or expertise would be dangerous for the country
at this moment in time.
And given his extensive experience, I have no doubt that he
will do an excellent job as the next Director of USCIS, and
after my conversation and my meeting with him, I am even more
convinced that he will hit the ground running on day one and do
what we have to do right now, working with President Trump to
clean up the mess of the last Administration, and indeed,
deliver an immigration system that is meant to work as the
people intended.
He has my full support. I hope my colleagues will feel the
same, and it is my honor to introduce Mr. Joseph Edlow.
Chairman Grassley. Yes. Thank you, Senator Moody.
Will the nominees please come to the table and don't sit
down because I want to offer oath.
[Witnesses are sworn in.]
Chairman Grassley. I saw everybody say yes. Please be
seated.
We will start with Mr. Edlow, but for all of you, it is our
tradition that if you want to introduce family and friends
before you give your opening statement, that is okay. Now, you
may proceed, Mr. Edlow.
STATEMENT OF JOSEPH EDLOW, NOMINEE TO SERVE AS DIRECTOR OF U.S.
CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND
SECURITY
Mr. Edlow. Mr. Chairman, thank you so much.
Chairman Grassley, Ranking Member Durbin, and distinguished
Members of this Committee, thank you for the opportunity to
present testimony today regarding my pending nomination to
serve as the next Director of U.S. Citizenship and Immigration
Services. It is an honor to appear before this esteemed
Committee, and given the very productive conversations that I
had with many of you prior to today, I am looking forward to
discussing my vision for USCIS and the legal immigration system
of this great Nation, should I be confirmed.
I want to first thank President Donald J. Trump for this
great honor and for the trust that he has placed in me through
the nomination. I would also like to thank Secretary Kristi
Noem for her outstanding leadership of the Department of
Homeland Security and her commitment to immigration
enforcement, border security, and the rule of law. It would be
a privilege to serve as the next Director of USCIS in such a
vibrant and stalwart Administration.
I also want to take this time to acknowledge my family, as
well as professional and personal colleagues and friends,
several of whom are in this room, who have provided endless
support during the confirmation process, as well as throughout
my personal and professional development. First and foremost,
thank you to my wife, who has stood steadfastly beside me, and
still laments that she can cite the Immigration and Nationality
Act verbatim after years of endless conversations; my two
children, who are the lights of my life and my primary
motivation for my calling back to public service; and my
parents, who have provided me with the foundation that has
ultimately led me to this moment.
I would be remiss if I didn't mention my two legislative
mentors, Raul Labrador and Bob Goodlatte, as well as my
colleagues at the House Judiciary Committee, Immigration
Subcommittee, who serve as my immigration compass and a never-
ending source of friendship and professional camaraderie.
The United States sits at a critical crossroads on the
issue of immigration policy. As I have written and testified
repeatedly over the past 4 years, the Biden-Harris
Administration waged a war against the immigration system, with
the results speaking for themselves. The immediate impacts of
unchecked illegal migration and border incursions since 2021
had tremendous impacts on the ability of USCIS to carry out its
core functions. The misplaced priorities and reassignments of
resources to support unlawful border activity has left the
agency with backlogs that are unprecedented and beyond anything
that was ever previously contemplated.
While the situation is dire, the immediate and decisive
actions taken by President Trump, Secretary Noem, and others
within the executive branch have stemmed the tide, and we are
now enjoying some of the lowest daily, weekly, and monthly
border numbers in American history. With CBP's success at the
border and the tremendous work being done by ICE in interior
enforcement, the time for decisive action within our legal
immigration system is now.
If confirmed, my vision for USCIS is simple. I will restore
integrity within the legal immigration system. While the whole
Department of Homeland Security is working hard to make America
safe again, USCIS must play as critical a role in that mission
as any other immigration enforcement agency. At its core, USCIS
must be an immigration enforcement agency, an agency that is
dedicated to ever-evolving and innovative techniques for
screening and vetting its applicant pool; an agency that must
be vigorous in its efforts to detect, deter, and disrupt
immigration fraud, threats to our national security, and to the
safety of the American public; and to ensure that only those
aliens deserving of the honor to become citizens of this great
Nation are able to exercise the sacred right to vote. These
core missions will make America safe, while also aiding us in
more rapidly and more confidently adjudicating cases, will lead
to a significant reduction of the agency's backlog, and will
put American interests first.
For the last 4 years, USCIS was referred to as a welcoming
agency. While we should absolutely be a welcoming agency for
eligible aliens into this country, make no mistake, my oath
will always be to the Constitution, as I will act to faithfully
enforce the laws as Congress has prescribed them, and will
always put the interests of the American people before all
else. Under my leadership, we will not only safeguard our
Nation's immigration system, but also serve our integral role
as an agency committed to protecting the homeland and
safeguarding our Nation. I look forward to working with the
very dedicated workforce at USCIS to accomplish these goals.
I thank this esteemed Committee again for its attention to
this confirmation process, and I welcome your questions. Thank
you, Mr. Chairman.
Chairman Grassley. Thank you, Mr. Edlow.
Now, Mr. Gaiser.
STATEMENT OF T. ELLIOT GAISER,
NOMINEE TO SERVE AS U.S. ASSISTANT ATTORNEY GENERAL
Mr. Gaiser. Thank you very much, Chairman Grassley, Ranking
Member Durbin, Members of the Committee. Thank you also for the
kind introduction, Senator Moreno.
Before I go any further, I would like to recognize a few
people who are here with me and those who couldn't be here.
First and foremost, my beautiful wife, Alexandra, who is the
most intelligent woman in any room; my 3-year-old son, Elijah,
and 11-month-old daughter, Allegra. I think you have all met
her. My father-in-law and mother-in-law, Alan and Stephanie
Harrison, who are celebrating their 37th wedding anniversary
today. Thank you so much for being here.
And my mom and dad, Linda and Brian Gaiser, I wouldn't be
here without you. You raised me and my siblings, Jeff and Ari,
who are also watching from home, to love this great country and
thank God for our freedoms. Who could have imagined raising us
in that little brick house on West 138th Street in Cleveland,
that someday your son would have the honor to testify before
this esteemed Committee.
I would not be the lawyer I am today without the incredible
jurists I have the honor of serving as a law clerk, Judge Edith
Jones, Judge Neomi Rao, and Justice Samuel Alito. Your kindness
and concern for the ordinary American is matched only by your
brilliance and strength of character, and I hope to live up to
your examples.
Thank you also to Attorney General Dave Yost of Ohio, who
has entrusted me the role of his Solicitor General to represent
Ohio before the Supreme Court and beyond, and to assist with
his statutorily authorized power to issue formal advisory
opinions on Ohio law.
And though I believe they are now in a better place, I wish
to remember Ted Olson, who did his best to impart some of his
kindness and wisdom to me when I was a young lawyer, and
Ambassador Boyden Gray, whose mentorship to me when I was just
one of four lawyers at the law firm he founded will leave, I
hope, a generational legacy.
Most important, I am grateful to President Trump for
nominating me. It would be the honor of a lifetime to execute
the duties of assistant attorney general for the Office of
Legal Counsel.
The functions of OLC date to the Judiciary Act of 1789, and
it has served to uphold the rule of law and the separation of
powers into the modern era by issuing opinions and answering
legal questions according to the best reading of the law. In
that sense, OLC reinforces a critical piece of American
exceptionalism. One past head of OLC, Justice Antonin Scalia,
often remarked that many despotic nations had eloquent bills of
rights, but those parchment lists were worth less than the
paper they were printed on.
Why? Those nations did not enjoy the structure of the
American Government, the separation of powers and federalism,
without which flowery lists of individual rights meant so
little. Thomas Hobbes described the Government as a leviathan.
That is a Hebrew etymological word which means ``that which
gathers itself up in folds,'' and indeed for most of human
history, government matched that description.
But in 1776, with a reliance on the protection of God's
providence, our forebearers revolted against the encroaching
folds of empire. The Constitution they established runs with
the warp and woof of human nature, where ambition counteracts
ambition, where the atom of sovereignty is split between the
States and the Federal Government, and where representative
democracy ensures public service is always a public trust.
The separation of powers in federalism ensures American
Government is more than smothering folds, but rather responsive
to the whole people, including the forgotten men and women who
desire only safety in their communities, security on our
borders, growing not tightening family budgets, and laws not
weaponized against political enemies, but even-handedly applied
to all.
I am proud to have fought in court to defend these
principles, first as a litigator in private practice, and now
as the Solicitor General of my home State. And should I be
confirmed, I will devote every day to providing my best advice
and counsel on the best reading of the law at the Department of
Justice. Thank you very much.
Chairman Grassley. Thank you, Mr. Gaiser.
Now, Mr. Squires.
STATEMENT OF JOHN SQUIRES, NOMINEE TO SERVE AS U.S. UNDER
SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF
THE U.S. PATENT AND TRADEMARK OFFICE
Mr. Squires. Thank you, Mr. Chairman.
Thank you, Chairman Grassley, Ranking Member Durbin, and
Members of the Committee. I would like to thank the Chairman
for the opportunity to introduce my family before my opening
statement. I would like to introduce my lovely wife, my
beautiful wife, Mary Lou, of 33 years, my lovely daughter,
Elizabeth, my handsome son, Will, both of whom are proud alums
of Camp Invention, and my friends and colleagues who have
supported me over the years, including Professor John Duffy,
who is with us today.
It is my honor to be here today, and I am, of course,
grateful to President Trump, to whom I was introduced to by an
inventor, and Commerce Secretary Lutnick, the department's very
own ``New Age Edison,'' with over 400 patents. I appreciate
their trust and confidence in nominating me for the
Undersecretary of Commerce and Director of the United States
Patent and Trademark Office.
My intellectual property awakening began, as Senator Tillis
mentioned, not with my chemistry degree, but rather with IBM
and marketing. Back then, it was IBM versus Japan, Inc., and
IBM won because of patents. With my new patent and law license
in 1993, the robust frontier of IP opened up.
As to patents, I started out in the traditional realms of
chem and bio pharma, materials and manufacturing. Then it was
on to the internet, building fintech and regtech disruptors.
Most recently, it has been the leading edge of AI, crypto, and
quantum computing.
With the onrush of technology, it is always on to the new
and the next. As to trademarks, from scholarship on free speech
to NFTs to standing athwart the name, image, and likeness
earthquake, it has been equally remarkable.
Since 2000, in bringing my practice to Wall Street, I have
sought to better our system. And as a survivor of 9/11, in me
you will find no fiercer defender of national security, tougher
enforcer of good faith and fair dealing, or eager proponent of
free market solutions.
In the wake of 9/11, Secretary Lutnick, as you know,
courageously rebuilt his company with patents. For me, patents
became the tip of our private sector's spear in America's soft
power war against terrorist financing, with our partners in the
CIA, FBI, and Treasury. We humbly received an FBI Director's
Award almost a decade later.
Armed with our inventions to combat terrorism, we barged
into the patent eligibility debate and were ultimately
successful as Supreme Court amici. I have humbly chaired
industry subcommittees, taught at UPenn, testified to the FTC,
and co-authored a Federal trial judge bench book on complex
patent damages.
But most notably, it is truly a special honor for me to be
here today for a second time, proudly now as a nominee, having
testified almost 20 years earlier to then-Chairman Leahy.
Finally, for the last 8 years, I have helped startups use
their IP to attract investment, commercialize their products,
and create jobs. I couldn't be more excited to join the
Commerce Department, as I believe the breadth of my experience
will help lead our remarkable unitary systems efficiently into
the future.
To succeed, though, we will need to have a commercially
compelling answer to the question, why come here? To answer
that, we must ask what we want from innovation. We want it to
be better, cheaper, faster, more sustainable, to get us to
market more quickly with quality and confidence.
At present, unfortunately, our system is going in the other
direction. But with born-strong patents and robust quality
marks, we can reclaim America's primacy, revitalize industry
and growth, proudly export our culture, boost national
security, and improve our lives. We well know the issues,
namely pendency, patent quality, and uncertainty.
And while the solutions are at hand, there is a danger too.
AI tools are being amassed that could easily overwhelm the
system. However, if harnessed, these tools can deliver our
finest hour. By leaning into AI, the burgeoning asymmetry can
disappear. We can equip our world-class examining corps to
grant patents tested by those same fires, expeditiously issued,
and of provable quality. And we will use these very same tools
to learn from, reduce, and remedy mistakes that manifest later.
I believe I am uniquely prepared for this role. It is said
that every patent begins its life as a trade secret. We want
inventors from every conceivable walk to bring their inventive
raw materials to our American patent factory where we will help
them hone and hew new, strong proprietary rights that are the
building blocks of dreams, where they are rewarded and society
advances just as the Constitution intended.
As you can tell, I am very bullish on the chapter ahead and
for a very bipartisan reason. Patents aren't red. Patents
aren't blue. Upon Government grant, they are red, white, and
blue. They are the best of us, extol our wares, and foretell a
future of American ingenuity unleashed for all the world to
see. Brilliant computer scientist Alan Kay once said, ``if you
want to change the future, invent it.''
We need to get to work. Today, I humbly ask for every
member's consideration and support for my nomination. Thank
you, and I look forward to answering your questions.
Chairman Grassley. Thank you, Mr. Squires.
Mr. Woodward, I want to apologize to you. When I got done
introducing you, I wasn't done. I only said half of it, so I
realize now I will put the other half in the record so you get
fully introduced to the Committee. Please forgive me.
[The prepared statement of Chairman Grassley appears as a
submission for the record.]
STATEMENT OF STANLEY WOODWARD, JR., NOMINEE TO SERVE AS U.S.
ASSOCIATE ATTORNEY GENERAL
Mr. Woodward. Mr. Chairman, no apology necessary. Thank you
for that very kind introduction.
Chairman Grassley, Ranking Member Durbin, I appreciate this
opportunity to address the Committee. Thank you to the
Committee Members and staff who took the time to meet with me
and to discuss the thoughts and concerns about the challenges
facing our Nation. If confirmed, I look forward to working
together with you, the leadership of the Department of Justice,
and the leadership of the Trump Administration, to address
these challenges.
To quote another, I stand before you on the shoulders of
giants. I would not be here but for so many who have taken the
time to serve as mentors throughout my personal and
professional development. To my family, mere thanks is wholly
insufficient. You have endured a great deal on this journey and
never asked for any of it.
Senators, sometimes actions speak louder than words, and
today I am privileged to be joined by nearly every senior
attorney at the Department of Justice to be appointed by the
attorney general. It has been an honor to work by your side in
the trenches these last few weeks.
Senators, I have long believed that, as attorneys, we have
a duty of service to our community. To so many, the law is
beyond understanding, and so with the ability to learn the law
comes the responsibility to use that gift for a greater good.
Nowhere is this belief more poignant than at the Department of
Justice. If confirmed, I pledge to seek justice for all.
I submit that my professional journey serves as evidence of
my commitment to this pledge. Beginning in law school, I felt
this calling. Classmates and I traveled to Biloxi, Mississippi,
to volunteer in the wake of Hurricane Katrina. This trip
profoundly changed my view of the role of the law. Door to
door, we went meeting with families living in trailers,
advising them of the Federal assistance available to help them
rebuild. My colleagues would visit 10 or 12 homes a day. I
often managed only to visit one or two. As I sat on makeshift
porches, sipping iced tea, looking at pictures of what was
lost, I came to realize that, if given the opportunity, I would
do good with my ability to learn the law for these people did
not understand, did not know, that they could apply for Federal
assistance. They did not know.
It was in part this desire to serve my community that
motivated me to found and lead the housing law practice at the
firm where I practiced. There, I led teams of attorneys in
defending tenants with housing code violations facing eviction.
That experience was equally enlightening because they did not
know that they could not be evicted where there were housing
code evictions. This simple concept was foreign to them because
the law was foreign to them.
I say in part because I also pursued that work to find
opportunities to appear in court. Senators, I went to law
school to be in court. And so when I founded my own law firm at
the height of the pandemic, it was natural for me to seek out
additional opportunities to appear in court. I applied and was
appointed to the Federal Criminal Justice Act panel here in the
District of Columbia where I would be appointed by the court to
represent criminal defendants.
At that time, the Department of Justice was in the midst of
its largest ever investigation, prosecuting thousands for their
involvement in the events of January 6. I was surprised to see
that so many were unwilling to represent these defendants. I
was reminded of John Adams' famous observation in his defense
of British soldiers. ``Facts are stubborn things.''
I would also be remiss were I not to observe that while the
media may have been focused on the weaponization evidenced in
the case I am perhaps now best known for, the defense of Walt
Nauta in the so-called Florida documents prosecution, the
tactics that were employed there were present in many of the
cases I had with lesser national import. Across my practice, I
saw firsthand how the power of government can be abused.
Senators, there is no place for weaponization in our
Government.
Although I know the journey may be fraught, I am inspired
by those who have led us to this point. To President Trump,
thank you for your nomination to this post. Your trust in me
will not be taken for granted. As I sat at counsel's table with
you, the former President, a defendant in a courtroom, I
watched as you persevered when many would have faltered.
Our journey here today calls to mind President Teddy
Roosevelt's now famous colloquy. ``It is not the critic who
counts, not the man who points out how the strong man stumbles
or where the doer of deeds could have done them better. The
credit belongs to the man who is actually in the arena, whose
face is marred by dust and sweat and blood, who strives
valiantly, who errs, who comes short again and again because
there is no effort without error and shortcoming, but who does
actually strive to do the deeds, who knows the great
enthusiasms, the great devotions, who spends himself in a
worthy cause, and who at best knows in the end the triumph of
high achievement, and who at the worst, if he fails, at least
fails while daring greatly.''
Senators, if confirmed, I pledge to dare greatly. I look
forward to your questions.
Chairman Grassley. Thank you, Mr. Woodward.
We have 5-minute rounds. I will start with Mr. Edlow.
H-1B abuse has been a priority and significant concern of
this Committee. Senator Durbin and I have bipartisan bills that
would crack down on H-1B abuse that we are working on to
reintroduce very soon. Recently, many Americans took to social
media to express their outrage over H-1B abuse. They even
shared personal stories about being laid off by Big Tech, even
as their employers continued to hire H-1B workers. So how would
you fight fraud and abuse in the H-1B program when you become
director?
Mr. Edlow. Mr. Chairman, thank you for the question.
In terms of fraud and abuse in the H-1B program, it is
absolutely pervasive, and it is something that in the first
Administration we attempted to handle via regulation.
Unfortunately, that regulation was vacated. If confirmed, I
look forward to moving forward with additional regulations and
sub-regulatory actions.
But also, I do have to commend you and Ranking Member
Durbin for introducing legislation to bring attention to this
critical issue, and I want to be a partner, if confirmed, with
both of you to fight this however we can.
And it is more than just the H-1B system. Frankly, we need
to be focused on the fraud, waste, and abuse that we have found
in every nonimmigrant and immigrant program that needs to be
addressed at this point.
Chairman Grassley. We have to take care of that fraud in
order to get some increase in numbers that people desire.
Mr. Squires, I am troubled about the growing industry
whereby financial institutions engage in third-party litigation
funding, including IP litigation funding. While you were in
private practice, you helped create Fortress Investment Group
IP funding arm. I understand that Fortress Investment Group
commits billions of dollars each year to fund IP litigation.
Please explain the role you played in the creation of Fortress
and your professional and financial involvement with that group
since its creation. And have you supported or represented other
IP litigation funders?
Mr. Squires. Thank you for the question, Mr. Chairman.
In reverse order, I have not represented Fortress since
about 2016, 2017 or so and have never represented litigation
funders in any capacity. I have no arrangements with them
financial or otherwise since my legal representation of them.
This is certainly a question in litigation financing. It is
a bit of a misnomer insofar as issues of which there has been
much ado about with my work. My work for Fortress at the time
was before they were acquired. It was a group that came to me
around 2012 regarding legal papers and theories I had developed
about patents as derivatives and patents as assets per se to be
valued on their own fundamentals in economics. In fact, I have
been rather tough on trolls in some of my writings. Because
troll practices are exploitive of inventors, they generally are
not based upon the fundamentals and are arbitrage play, whereas
our patent theories with them as assets per se allow companies
to monetize their patents.
So they came to me with an issue, wanting to solve a
problem of how a company could monetize its patents without
selling them, without suing, and without licensing them. We
developed effectively a patent mortgage where the company could
borrow against its patents as collateral and use the proceeds
to fund working capital. Those were several companies who were
their clients initially that staved off bankruptcy as a result
of this.
And I was pleased to see in 2021 one of the deans of the
patent bar, Marshall Phelps, wrote an article where companies
used this construct to survive COVID.
Chairman Grassley. Mr. Gaiser, I have got 35 seconds left.
District court judges have been issuing an unprecedented number
of universal injunctions to try to block President Trump's
immigration policies. I think you spoke to the separation of
powers, but let me ask you anyway, in our constitutional
system, who has the primary authority for protecting the
borders and setting immigration policy? And what is the proper
role of district courts in resolving immigration disputes?
Mr. Gaiser. Thank you very much, Mr. Chairman.
Congress makes the laws, and the President executes those
laws to secure our border. District courts have authority under
Article III to adjudicate cases and controversies.
Chairman Grassley. Okay. Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman.
I believe, and many of us do, that we are on the cusp of a
constitutional crisis, an historic moment. The Justice
Department is currently defending the Trump Administration in a
number of lawsuits challenging executive actions taken by the
President and officials of his Administration.
Federal judges, both Republicans and Democrat appointees,
have enjoined some of these actions, holding that they are
illegal or unconstitutional. Alarmingly, President Trump and
his allies, even some nominees before this Committee, have
responded by questioning whether the executive branch must
follow court orders. If confirmed, you will hold key positions
in the executive branch, and you will take an oath to uphold
and defend the Constitution.
So my question I ask of each of you is this. If, after
exhausting all rights of appeal, do you believe a litigant,
including officials in the executive branch, can lawfully defy
a court order? Mr. Woodward.
Mr. Woodward. Thank you. Thank you for the question. I do
take issue with the premise of the question insofar as district
court judges are not holding that President Trump's orders are
illegal or unconstitutional. The only ask of district court
judges at that time is whether there is a likelihood of success
on the merits.
Senator Durbin. If you would stick to my hypothetical, it
is an approach that is very clear. I don't want to argue a
different issue. I would like to argue this issue.
Mr. Woodward. To your question, Senator, the President has
made clear that he will follow any order of the Supreme Court.
Senator Durbin. Do you believe that officials in the
executive branch can lawfully defy a court order, yes or no?
Mr. Woodward. Senator, the President has been very clear
that he will follow any order of the Supreme Court.
Senator Durbin. No response. Mr. Squires?
Mr. Squires. Thank you, Senator. In my world, which is
generally governed by Article I, Section 8, Clause 8, the
Patent Office is an ex parte body. And generally, there are
appeals from executive actions taken by the Director, and there
is a lone court of appeals, unlike the circuit system for the
Federal circuit, and then up to the Supreme Court. So patent
issues tend to be adjudicated for issues that are in dispute up
to the Supreme Court, and obviously, the Supreme Court
precedent governs, and that would be followed.
Senator Durbin. So you believe a litigant, including
officials in the executive branch, must follow a court order,
cannot lawfully defy a court order?
Mr. Squires. Thank you, Senator. I believe that the Supreme
Court orders will be followed by the executive branch, yes.
Senator Durbin. Mr. Gaiser?
Mr. Gaiser. Thank you very much, Ranking Member Durbin. The
President has been very clear he will follow all court orders
of the Supreme Court.
Senator Durbin. Do you believe that any executive official
can lawfully defy a court order?
Mr. Gaiser. No.
Senator Durbin. Mr. Edlow?
Mr. Edlow. Thank you, Senator. If confirmed, I will always
follow advice of counsel when addressing these matters and how
to handle such cases as you have raised them.
Senator Durbin. So can an executive official lawfully defy
a court order?
Mr. Edlow. I would defer to counsel as that I am not here
in an attorney's role right now. I am here as a Director or as
the nominee for Director.
Senator Durbin. I don't believe you need a law degree to
answer this question. Can an executive official lawfully defy a
court order?
Mr. Edlow. Again, given the speculative nature of the
question, my answer remains the same. I will always follow the
advice of counsel.
Senator Durbin. No response. This is what troubles me
greatly. If we cannot agree on this as the basic premise of our
rule of law, where in the world are we headed as a Nation? It
should be a clear answer, lawfully defy a court order, no.
Senator Kennedy said as much when he came back to this
Committee after a hearing in which I asked a question, and the
present Solicitor General equivocated on the answer. There
should be no equivocation by Democrat or Republican, in or out
of power, and yet you hear what I run into, the evasion that I
face.
Mr. Squires, have you ever engaged in dishonest and
dangerous activity at a law firm?
Mr. Squires. No, Senator.
Senator Durbin. Do you know what has happened to your
former firm, Perkins Coie?
Mr. Squires. Yes, Senator, I have seen the Executive order.
Senator Durbin. Did you read the President's, or at least
the Administration's, position on your former law firm? The
Executive order claimed that the firm's ``dishonest and
dangerous activity has affected this country for decades.'' The
order further alleged that the firm is ``undermining democratic
elections, the integrity of our courts, and honest law
enforcement.'' Did you see any evidence of that activity when
you were a member of this firm?
Mr. Squires. Thank you for the question, Senator. My role
at Perkins Coie was to establish the first New York Patent
Office presence. I dealt only with patent issues and
intellectual property issues, and I had really no line of sight
into any of the practice areas.
Senator Durbin. So you saw no evidence? I want to complete
the question. Did you see any evidence of this wrongdoing that
the President alleges in his Executive order?
Mr. Squires. Sir, in my areas of responsibility, I saw no
wrongdoing with respects to intellectual property.
Senator Durbin. Thank you, Mr. Chairman.
Chairman Grassley. Senator Tillis.
Senator Tillis. Thank you, Mr. Chairman.
Mr. Squires, thank you for being here. Actually, I wanted
to go back. I think you answered the question from Senator
Durbin exactly right within the lane that you would be
operating for the USPTO. Would you just describe that again
about how most cases move through the courts and up to the
Supreme Court?
Mr. Squires. Thank you for the question, Senator, and thank
you also for the opportunity to meet and the kind introduction.
Yes, the patent system is a little bit unique insofar as
other agencies. It is an ex parte. It is not adversarial. So
there are appeals that move--taken from an executive branch
decision that move up through the court system in a very
prescribed fashion, and that is the Federal Circuit Court of
Appeals and up to the Supreme Court.
Senator Tillis. Yes, my point is I felt like your answer
was characterized as a non-answer. It was a concise answer in
the context of the role that you are being considered for.
Patent eligibility, PERA or PREVAIL, what do you think
about them?
Mr. Squires. Thank you for the question. I am very
gratified to see work being done in this area. Some of the
issues across those bills are costing American competitiveness,
particularly on the area of patent eligibility.
I would note, especially from the IP Subcommittee hearing
last Wednesday, the Chinese national patent system has a more
expansive subject matter area than the United States does, and
that is troubling to me. It should be troubling to all
Americans.
Senator Tillis. Should it be troubling to all Americans
that you can file for a patent in China anonymously?
Mr. Squires. I viewed that session, sir, and I was shocked
by that, and also equally shocked by the--written into the
laws, the requirement that the disclosure be made to the
Chinese embassies. This is before a----
Senator Tillis. What risk do we have if we don't move
forward with some of these bills that are improved certainty
that the intellectual property just flows elsewhere and we lose
the advantage that we have today and that gap is closing with
China?
Mr. Squires. Thank you. I think that is a big risk. As I
mentioned in my opening remarks, we want people to come to the
American patent factory first and have a compelling reason to
come here, so we are in danger of losing competitiveness,
especially in subject matter areas that other countries have no
problem with. I believe there are tools in our system to avoid
these issues, and I believe the bills also take care of those
issues, so thank you for those efforts.
Senator Tillis. Well, thank you.
Mr. Woodward, just a real quick question for you. I intend
to support your confirmation, but I did have a question. I know
you defended some of the January 6 defendants. After your
defense, did you actively advocate, go on stage, have
interviews? Beyond your role as a defense attorney, in the
space that they were being prosecuted, have you had any public
statements or any presence that would go beyond just doing the
defense work but being an advocate for them after the fact?
Mr. Woodward. Senator, thank you for the question. No, sir.
I make my arguments in court.
Senator Tillis. Thank you. That is the right answer.
Mr. Gaiser, I believe in this concept of political physics.
For every partisan action, there is an equal and opposite
reaction. Under previous Administrations, the OLC at times
shifted from issuing authoritative determinations on legality
of executive branch actions to instead essentially advocating
for the legality of these actions. Neither the Administration
nor the OLC were well served by this shift. In other words, can
I count on you to returning to the intended purpose and mission
of the OLC?
Mr. Gaiser. Thank you so much, Senator Tillis. Yes, sir,
you can. The----
Senator Tillis. I expected that based on your concise
answer to Senator Durbin's question.
Look, we have got to be the adults in the room and stop
having this back-and-forth or we are no better than the people
we are criticizing when they do the same thing.
Let me see. Mr. Woodward, I think I am good with that
answer. I look forward to supporting you all's nomination.
Mr. Squires, I am especially looking forward to getting
with you and having your commitment to come and work--not in
hearings. I hate hearings. They have to be done--but
participating in workgroups and letting us continue to do the
good work of the Intellectual Property Subcommittee.
And I also want to publicly thank the Members of the
Intellectual Property Subcommittee because we have great
attendance there, which is one of the reasons why we get so
much good work done.
I want you to be a partner that goes out of the formal
setting and into the get-the-work-done setting. I got your
commitment on that?
Mr. Squires. Thank you, Senator. Yes, you have my
commitment to do my level best. And if I am done the honor of
being confirmed, as I said in my opening statement, we need to
get to work.
Senator Tillis. Thank you. I look forward to supporting all
your confirmations.
Chairman Grassley. Senator Whitehouse.
Senator Whitehouse. Thanks very much, Chairman.
Let me followup on Senator Tillis' questions, Mr. Gaiser.
On this Committee, I lived through the OLC torture opinions,
which were so bad that the Administration that wrote them had
to withdraw them; the warrantless wiretapping opinions, which
were so bad that they created a mutiny within the Department of
Justice; and with the walk-back of OLC from enforcing the so-
called Reagan memo, which posits that the department and OLC in
particular will be a somewhat neutral arbiter in conflicts
between the Executive and the legislative branch over
oversight. In all of those matters, the OLC became, as Senator
Tillis said, the active partisan for the Administration and not
a neutral decider.
If I look at your record, first, how long have you been a
lawyer?
Mr. Gaiser. Thank you very much, Senator Whitehouse. I have
been a lawyer for 10 years.
Senator Whitehouse. And how many of those were you a law
clerk?
Mr. Gaiser. I was a law clerk for three different jurists,
about a total of 28 months.
Senator Whitehouse. And how many of those years were spent
in private practice?
Mr. Gaiser. I was in private practice, Senator, for about 4
years.
Senator Whitehouse. At the associate level?
Mr. Gaiser. I was an associate, yes, sir.
Senator Whitehouse. How long have you served as Ohio
Solicitor General?
Mr. Gaiser. I have served since November 2023 and currently
serve as Ohio Solicitor General.
Senator Whitehouse. Have you ever tried a case to a final
judgment?
Mr. Gaiser. Thank you very much for that question, Senator.
I have worked on trial litigation teams. I have not myself been
personally the counsel of record in a trial case. I am
primarily an appellate lawyer and an advisor and counselor.
Senator Whitehouse. Have you ever personally appeared in
trial court?
Mr. Gaiser. Yes, Senator.
Senator Whitehouse. Now, some time ago, you had pretty
strong views about President Trump. You said that ``His
political positions are a lot like his hair, pasted on for
effect and flopping whichever way the wind blows'' that ``He
has an astonishing weakness for flattery, falling for Vladimir
Putin after a few coquettish bats of the eyelashes from the
Russian thug,'' and that ``He is a short-fingered, vulgarian
candidate.'' Since then, have you had a role in Donald Trump's
litigation that tried to overturn the results of the 2020
election?
Mr. Gaiser. Well, thank you for that question, Senator.
Like millions of Americans, I have seen the courage and the
results that President Trump has delivered. I watched in that
field in Pennsylvania as he stood after the assassin's bullet.
And I hope my children look up to and live up to that kind of
courage in their life.
Senator Whitehouse. So, while in private practice, did you
have a role in Donald Trump's litigation that tried to overturn
the results of the 2020 election?
Mr. Gaiser. Well, thank you for that question, Senator. I
was retained by Donald J. Trump for President Incorporated in
the 2020 campaign to provide legal advice, which I did.
Senator Whitehouse. The former White House Press Secretary
testified that you were one of her go-to people to advance the
argument that Vice President Pence could overturn the 2020
election. Is that true?
Mr. Gaiser. Well, Senator, as you know, ethical obligations
of confidentiality attach to any client matter. And as a former
attorney for a former client, I am not going to divulge the
confidential communications that I made to that client.
Senator Whitehouse. You know, just if I look at this, you
don't seem to have the legal experience that most OLC chiefs
have. You seem to have done a very abrupt pivot politically
into the Trump camp and into election denialism. On what basis
should I have any confidence that you will exert any
independence or judgment within OLC if the Trump Administration
comes knocking on your door for an opinion and won't go down
the road of, we will give you your free torture opinion, we
will give you your free warrantless wiretap opinion, and we
won't bother to enforce the Reagan memo any longer? What will
keep you from going down those bad roads that we have seen OLC
go down?
Mr. Gaiser. Well, thank you, Senator Whitehouse. The first
role of any lawyer is to be able to state the law as it is. And
the Office of Legal Counsel serves an important role in our
Administration by providing a neutral opinion objectively of
what the law is.
Senator Whitehouse. You would do that?
Mr. Gaiser. Yes, Senator.
Senator Whitehouse. Okay, Mr. Woodward, last question. I
will re-ask Ranking Member Durbin's question a slightly
different way. Under what circumstances would you recommend
that the Trump Administration defy a lower court order?
Mr. Woodward. Mr. Chairman, I see my time has expired. May
I answer the question?
Chairman Grassley. Please, you should answer, yes.
Mr. Woodward. Thank you, Mr. Chairman.
Senator Whitehouse, I can't imagine a circumstance in which
I would be called upon to advise the defiance of a court order.
I have had the great privilege of working with President Trump
now for many years, and I just don't ever imagine a
circumstance in which I would be called upon to give advice of
that nature.
Senator Whitehouse. Even for lower courts?
Mr. Woodward. Well, Senator, at the risk of giving a legal
answer, it depends.
Senator Whitehouse. On what?
Mr. Woodward. On the nature and circumstances of the case
before us.
Senator Whitehouse. So there are certain circumstances that
would cause you to recommend to the Administration that it defy
a lower court order?
Mr. Woodward. Well, Senator, for example, in some
circumstances, in order for a court order to be challenged, an
official must be held in contempt. And so, yes, it is possible
that we could get there. However, I would be remiss were we to
go down the path of talking about hypotheticals because, as I
say, I can never imagine a situation in which I would be asked
to give that advice.
Senator Whitehouse. Chairman, thank you for your generosity
with my time. I appreciate it. Thank you all.
Chairman Grassley. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
Gentlemen, I don't want to spend a lot of time on this, but
I also don't want to debate how many lawyers can dance on the
head of a pin. I think you understand where a lot of these
questions are coming from.
Mr. Gaiser, would you ever advise a client to ignore a
Federal district court opinion?
Mr. Gaiser. Thank you very much, Senator Kennedy. I would
advise----
Senator Kennedy. You can thank me by answering it.
Mr. Gaiser [continuing]. I would advise a client on how
best to comply with all lawful court orders.
Senator Kennedy. Is that a yes or a no?
Mr. Gaiser. Yes, sir.
Senator Kennedy. You would advise a client not to follow a
Federal district court opinion?
Mr. Gaiser. I would advise a client to follow court orders.
Senator Kennedy. Would you ever advise a client not to
follow a Federal court of appeals decision?
Mr. Gaiser. I had the privilege of clerking on two Federal
courts of appeals.
Senator Kennedy. Is that a yes or a no?
Mr. Gaiser. Yes. I would advise them to follow the orders
of courts of appeals.
Senator Kennedy. How about a Supreme Court opinion?
Mr. Gaiser. Yes, Senator, I would advise them to follow the
Supreme Court's orders, as President Trump has been very clear
that those orders are to be followed.
Senator Kennedy. Mr. Woodward, let me ask you the same
question. Would you ever advise a client not to follow a
district court opinion?
Mr. Woodward. No, Senator.
Senator Kennedy. Would you ever advise a client not to
abide by an opinion of the Federal court of appeals?
Mr. Woodward. No, Senator. Again, it is difficult to answer
in the hypothetical, but----
Senator Kennedy. Would you ever advise a client not to
follow an opinion by the U.S. Supreme Court?
Mr. Woodward. No, Senator. As the President has been clear,
he will follow all orders of the U.S. Supreme Court.
Senator Kennedy. Tell me what I would need to do under the
APA, the Administrative Procedures Act, if I want to change a
current rule.
Mr. Woodward. Well, Senator, as a Senator, you would pass a
law that would change the----
Senator Kennedy. No, no, no, no. I don't want to play games
here, Counsel. What would one have to do? What would the head
of an agency have to do to overturn a current rule and
regulation?
Mr. Woodward. Well, Senator, I apologize. I know that there
are many ways to do that, and I don't want to play games
either. I want to----
Senator Kennedy. No, okay.
Mr. Woodward [continuing]. Answer the question.
Senator Kennedy. That is fair.
Mr. Woodward. There are many ways in which an agency can
overturn a rule.
Senator Kennedy. Well, you have to give notice, right?
Mr. Woodward. As a general matter, yes, Senator.
Senator Kennedy. And you have to invite input, right?
Mr. Woodward. As a general matter, yes, Senator.
Senator Kennedy. Okay. And sometimes you have to hold a
hearing, right?
Mr. Woodward. Sometimes you do, Senator.
Senator Kennedy. Yes. Are there any exceptions to that
under the Administrative Procedures Act?
Mr. Woodward. Under the Administrative Procedures Act, I am
not aware of any exceptions, but there are exceptions under the
law.
Senator Kennedy. Okay. Are you familiar with the good-cause
exception to the Administrative Procedures Act?
Mr. Woodward. Senator, I am vaguely familiar with that
exception.
Senator Kennedy. Okay. Do you know what it says?
Mr. Woodward. No, Senator, I do not.
Senator Kennedy. I understand. Here is what I am driving
at. Are you familiar with the Supreme Court's case called Loper
Bright?
Mr. Woodward. Senator, I am vaguely familiar with the
Supreme Court's decision in Loper Bright.
Senator Kennedy. The overturned Chevron doctrine, right?
Mr. Woodward. The Chevron deference doctrine, yes, Senator.
Senator Kennedy. Okay. If there is a rule promulgated by a
prior Administration or even by a current Administration that
is in clear violation of the U.S. Supreme Court's pronouncement
under Loper Bright ruling unconstitutional the Chevron
doctrine, would it be possible--strike that--would it be
prudent for the Justice Department to exercise authority under
the good-cause exception to the APA in the public interest and
forgo the notice and comment?
Mr. Woodward. Senator, thank you. I think I now understand
your question. I was alluding to the non-APA process. I mean,
if a rule has been promulgated that is plainly
unconstitutional, it absolutely would be appropriate for the
Department of Justice to look at that rule and make a
determination.
Senator Kennedy. My point is you don't have to ignore the
APA to do that, do you?
Mr. Woodward. I would say it depends, but I take your
point.
Senator Kennedy. I mean the APA provides an exception.
Mr. Woodward. Yes, Senator.
Senator Kennedy. It is Section 553. It is right there, as
big as Dallas. Am I done?
Chairman Grassley. Yes.
Senator Kennedy. I thought that was maybe a mouse or
something.
Chairman Grassley. Senator Coons.
Senator Coons. Thank you, Chairman Grassley, Ranking Member
Durbin. Congratulations to your families and to you for your
nominations. Thank you for your service.
Mr. Squires, I will turn to you first, and I have a series
of fairly quick questions about patent policy. I am encouraged
that you are willing to serve at this pivotal moment in global
IP policy and appreciate your taking the time to meet with me.
Earlier this month, Senators Tillis, Durbin, Hirono, and I
reintroduced the PREVAIL Act. It includes common-sense reforms
to the Patent, Trial, and Appeal Board and will help make it
more the fair and efficient forum I believe Congress intended
in the America Invents Act. Do you think the PTAB needs to be
reformed? If so, in what ways? And do you think PREVAIL could
contribute to those reforms?
Mr. Squires. Thank you, Senator. Thank you for your
question, and thank you also for the opportunity to meet in
your office.
I do think there is a need of reform. I think we have
almost 15 years of data since the America Invents Act to see
the distribution, if you will, between post-grant review and
IPRs, and the data seems to be skewed in favor of one versus
the other, so reform may help flatten out that curve.
Senator Coons. There is a significant pendency problem,
about 800,000 unexamined patent applications. Dealing with that
will require streamlining and improving the workforce. The PTO
reducing this backlog will require resources. One of the
provisions of the PREVAIL Act would permanently end the
practice of fee diversion. The PTO is entirely fee-funded by
the substantial fees paid by those who seek patents. Would you
oppose fee diversion at the PTO?
Mr. Squires. Thank you, Senator. We have a Commerce
Secretary also who is very savvy with patents and has lived the
patent life in the private sector. Fee diversion, I had
testified years ago, almost 18 years ago, should end. The
Patent Office should be able to keep its fees and run its
system like a business. I think the fee diversion ending would
be a positive thing for the Patent Office.
Senator Coons. In eBay, the Supreme Court dramatically cut
back on the availability of injunctive relief after finding a
patent infringement. My RESTORE Act with Senator Cotton would
return patent law to what was literally centuries of tradition
by restoring a rebuttable presumption that a patent owner can
get an injunction. What is injunctive relief? What does it mean
to small inventors, and why is it significant?
Mr. Squires. Thank you for the question, Senator.
Injunctive relief is basically a cease-and-desist order for
operations, sales, manufacturing, any commercialization of a
product. It is important to individual inventors because they
are coming to the office with their issued patents to get an
exclusive right. A right to exclude is a property right, and
property right enforcement usually involves kicking out the
trespassers. So that is why the individual vetters look to that
provision.
It also gives them the exclusive right, as conferred by the
monopoly granted by the Government, to practice--not the right
to do anything themselves but to exclude others. That is what
the patent grant means.
Senator Coons. In the Section 101 area, the jurisprudence
about what is patentable, I think, in fact, the Federal circuit
thinks that the Supreme Court's jurisprudence has ended up
getting into a box canyon that is hard to get out of. What has
the impact been of critical decisions like Myriad and Alice on
cutting-edge technologies like AI and blockchain?
Mr. Squires. It's created uncertainty throughout the entire
process. When a patent is granted, even if they are overcome in
the office those particular eligibility objections, they are
litigated and not respected rights once they are in the
marketplace, and they are often, you know, vehicles for
litigation outside of the merits of infringement, whether the
claims read on an accused product.
Senator Coons. And has this hurt our competitiveness
globally in terms of where cutting-edge technology patents are
being filed and advanced?
Mr. Squires. Thank you, Senator. I believe it has. As I
mentioned in my response to Senator Tillis, we have seen other
nations have success with more expansive subject matter. We
shouldn't be so constrained.
Senator Coons. Thank you. Thank you for your answers across
a range of patent issues.
Mr. Edlow, if I might, between 2020 and 2021, over 80,000
employment-based green cards for legal employment here in the
United States went to waste because the then-USCIS leadership
didn't adjudicate them, resolve them on time, and that sparked
bipartisan concern. Do you agree that wasting green cards that
have been authorized by Congress is unfortunate, and these
opportunities for legal employment shouldn't be missed? And as
Director, will you prioritize reducing unnecessary paperwork
and improving processes to improve legal employment here in
this country?
Mr. Edlow. Senator, thank you so much for the question. You
know, in the last 4 years, I have had the privilege of serving
in the private sector, and I have seen the need to modernize
forms in a way that I never really understood before. If
confirmed, I plan on making major gains to modernize our
systems, both for vetting and screening purposes, but also to
allow attorneys to better send in forms, as opposed to still
using paper forms, to be able to scan them and then that
information be taken in through a PDF process, so absolutely.
Senator Coons. Thank you. Last question, if I might, Mr.
Chairman. I have been gravely concerned about recent decisions
to abruptly end TPS provisions for folks who came to this
country under these legal programs from Haiti, from Venezuela,
in particular from Afghanistan, and that are leading to
hundreds of thousands of people losing their current legal work
authorizations at the same time.
Businesses in my State and around the country are facing
significant labor shortages, and families that are here
legally, working legally, are facing return to countries that
are not demonstrably any more stable than they were when they
left. As Director, would you work to prioritize getting those
who are eligible for other pathways to remain here and to work
here legally the opportunity to do that, to limit the damage to
their lives and to their communities?
Mr. Edlow. Well, Senator, let me start with commending the
work of the Administration right now in terms of following the
law with how TPS is supposed to be. The Secretary is required
to make determinations at certain intervals, and if the
conditions that led to the initial TPS decision are no longer
met, then they need to be terminated. Regardless of that, when
someone is here with TPS or another temporary pathway, those
are temporary pathways, and if they have----
Senator Coons. I am familiar with the process, sir, and I
am also familiar with the ongoing circumstances in both Haiti
and in Afghanistan and disagree with the determination that we
should force back to Afghanistan anyone who came here legally.
Mr. Edlow. Mr. Chairman, if I may.
Chairman Grassley. Senator Britt.
Senator Britt. Yes, why don't you go ahead, Mr. Edlow, and
respond.
Mr. Edlow. Thank you, Senator.
Senator, all I would say to that is I understand that--I am
not going to comment--I think it would be inappropriate for me
to comment on any case that is pending right now with Federal
litigation. That said, certainly, as temporary programs exist,
there are permanent programs such as seeking asylum or other
humanitarian protections, and I would suggest that someone who
came in on a temporary program who feels that they cannot go
back because of a reason that would lead them to need
protection should apply for those protections.
Senator Coons. Thank you.
Mr. Edlow. Senator, thank you so much.
Senator Britt. Got it.
We will go ahead and continue with you. Thank you so much
for taking time to meet with me. I am obviously very impressed
by the different roles that you have served and the department
in which you seek to run. Knowing that, knowing your previous
work, what do you see as your vision? What are your big
priorities, you know, if you are confirmed?
Mr. Edlow. No, thank you, Senator. I think the big priority
has to be the reduction of the backlog.
Senator Britt. Okay.
Mr. Edlow. You know, that backlog has grown to
insurmountable levels over the last 4 years. When I left as the
Deputy Director of Policy in January 2021, there were about
450,000 affirmative asylum cases pending around the country.
That number has grown. There is over 1.5 million now.
Now, what does that mean? That means that all these extra
people have been now--have gotten into the pipeline, and that
is only for asylum. We also have green card backlogs and, as
the Senator alluded to, other employment-based green cards that
we need to look at, too.
However, the real problem that I see is I don't know who is
in the backlog. For me, backlogs are more than just a
bipartisan talking point about, you know, how we have got to
get the agency in order. I think it is, of course, important to
get someone's benefits to them as quickly as possible so that
they have the certainty, and if they are able to begin a life
in the United States and assimilate, that is fantastic. If not,
they need to know that certainty and to move forward.
However, the real problem with the backlog is that we don't
know who is in the backlog because of the lack of screening----
Senator Britt. How do you propose we find that out?
Mr. Edlow. Well, again, utilizing existing and emerging
technologies, more reassignment of individuals, moving the
Fraud Detection and National Security----
Senator Britt. Okay.
Mr. Edlow [continuing]. Division within USCIS out of the
shadows to actually do its job because at the end of the day,
the backlog presents----
Senator Britt. Absolutely.
Mr. Edlow [continuing]. A national security and public
safety risk.
Senator Britt. Let's adjudicate and let's get these things
moving.
On that, look, over the last 4 years, I believe I have seen
what was just a terrible misuse of the Presidential parole
authority. When I am looking at what the Biden Administration
did, giving blanket parole, things like the CHNV program where
it is intended to give on a case-by-case basis, and looking at
the actual ramifications of that, you know, it gives me real
concern.
My question to you is what do you plan on putting in place
or how do you plan on, you know, I guess, addressing this, and
how do you plan on approaching it if and when confirmed?
Mr. Edlow. Thank you, Senator. If confirmed, we will take
what steps are necessary at USCIS to assist with the other
departmental partners in terminating parole programs,
terminating parole, reviewing on a case-by-case the people who
got parole, to look for the fraud in the sponsor petitions that
we know now exist. There is a lot that needs to be done, but,
you know, I find it interesting. We have been talking about,
you know, following the law. The law on parole is very, very
clear----
Senator Britt. Clear.
Mr. Edlow [continuing]. In my opinion. And the parole
program, the use of categorical parole programs is illegal, and
we have got to get back to that. Parole is fine on a case-by-
case basis. It has been in the law since the 1960's or the
1950's. But the legislative intent for it was always severe
humanitarian needs or significant public interest. And that was
a one-off, not necessarily supposed to be mass programs used to
obfuscate the numbers at the border.
Senator Britt. And do you think this is something where
Congress likely may need to act on this issue?
Mr. Edlow. Senator, there have been bills previously
introduced that I think would certainly handle this on parole
reform, and I would love to see another.
Senator Britt. Absolutely. Thank you. Just in my remaining
minute, my question is for Mr. Woodward. As serving as
associate attorney general, you will have direct oversight over
the Civil Rights Division. This is something that I think is
critically important. We want to make sure that everyone has
the right to vote, and they also have the security and peace of
mind of knowing that their vote counts.
When you are looking at that, one of the reasons I actually
introduced the Citizen Ballot Protection Act last Congress--and
I will reintroduce it this year, and I have a number of
colleagues that have different pieces of legislation that
address the same thing--is amending Federal law to explicitly
allow States to put in place a proof-of-citizenship requirement
both on Federal mail-in voter registration forms and State mail
voter registration forms that might be developed. I think that
is a commonsense way to ensure integrity of the vote, that
American citizens are the ones voting in these elections.
And my question for you is, if confirmed, what plans do you
have to ensure that DOJ and the Civil Rights Division will work
to enhance the integrity and security of our elections and make
sure that the voters, the American citizens, aren't diluted?
Mr. Woodward. Well, Senator, thank you for the question. I
couldn't agree more. It is of critical importance to ensure
that our Nation's civil rights laws are enforced.
If confirmed, I look forward to working with AAG Dhillon
and ensuring that voting rights are as respected as every other
right. And so I am confident that we will find a way to
accomplish this, but also welcome additional legislation. Of
course, the office does not itself promote policy. It enforces
the law. And so if your legislation is passed, we would pursue
that as aggressively as possible.
Senator Britt. Thank you very much. I look forward to
working with you both.
Senator Tillis [presiding]. On behalf of the Chair, Senator
Welch.
Senator Welch. Thank you very much. I am not making this
up. I have been recognized.
Senator Tillis. On behalf of the Chair, I recognized you.
Senator Welch. All right.
Mr. Woodward. I apologize for----
Senator Welch. I was looking over----
Mr. Woodward. I apologize for distracting the Senator,
gentlemen.
Senator Welch. Thank you. Mr. Edlow, a couple of questions.
Number one, immigration is a mess here, and a lot of the
responsibility is Congress' because there are areas where we
should legislate. I agree with that. And that includes on
parole. But one of the areas I am really concerned about is ag
workers. We have had some of our dairy workers picked up. And I
am fully in support of hopefully bipartisan legislation that
allows for our farmers to get the labor they need in Vermont.
If we don't have immigrant labor, our cows don't get milked. It
is just that simple. Do you have a view on a position that
would reform the immigration laws that would allow for ag
workers in Tennessee and Kentucky and Vermont and Iowa?
Mr. Edlow. Yes, thank you, Senator. I'm, you know, well
aware of this issue, having worked for a Congressman from
Idaho.
Senator Welch. Right.
Mr. Edlow. I have spoken to many people within the dairy
industry and understand what they face.
Senator Welch. So what do you think we should do?
Mr. Edlow. Well, I think we do need to talk. And if
confirmed, I am happy to work with you and your staff on a
bipartisan basis to figure out.
Senator Welch. I assume that. What should we do? We have to
have an ag worker policy that allows for the ease for vetted
folks who want to work on a farm to be able to do it. Do you
agree?
Mr. Edlow. Respectfully, sir, I do agree in that we do need
to look closely at both the H-2A and H-2B visas as they exist
right now to see whether and how they need to be updated to
address the needs of these industries.
Senator Welch. Okay, thank you.
Mr. Woodward, thank you for our visit yesterday in the
office. I appreciated that.
The one thing that I wanted to talk to you a little bit
about today is you had two clients in the Mar-a-Lago case. You
had Mr. Nauta and you had Mr. Taveras, right?
Mr. Woodward. Senator, thank you for the question. I did
represent Mr. Nauta, and for a time I did represent Mr.
Taveras.
Senator Welch. Right. And this is where I just wanted to
get an explanation of what happened. My understanding is Mr.
Taveras testified in the grand jury. The judge informed him
that there may be a conflict because of the situation he faced
and your other client, Mr. Nauta. And at that point, he got a
new lawyer. Is that right? I think a Federal defender.
Mr. Woodward. Senator, it is a little bit more complicated
than that, and I also want to be mindful of not divulging
confidences involving my former clients, but that generally
tracks.
Senator Welch. Yes, so this is public record, and of course
I am not going to ask you to divulge any confidences, so I am
with you there. But what I understand happened is that Mr.--and
this is the public record--that Mr. Taveras changed his
testimony from what he had said in the grand jury, where
basically he was saying he didn't recall anything, to testimony
where he said the boss wanted those tapes to be ``lost.'' So
how did it happen that you went from--and you were being paid
by a Trump PAC, as I understand it, or by a Political Action
Committee. Is that correct, for your representation on behalf
of both of these individuals?
Mr. Woodward. Senator, I have received compensation by the
State of America PAC, yes. That is public record.
Senator Welch. Yes, that is right. Thank you. So what
happened that the testimony Mr. Taveras had given suddenly
became different testimony after he got a new lawyer?
Mr. Woodward. Senator, with respect, the public record
speaks for itself, and I would be remiss were I to engage in a
discussion about advice that I provided any former client.
Senator Welch. All right. But I am correct that in the
public record, Mr. Taveras gave testimony that he recanted once
he got a new lawyer.
Mr. Woodward. Again, Senator, with the utmost respect, I
think the public record says a great deal about this, and I
will let it speak for itself.
Senator Welch. Okay. I have no more questions. I yield
back, Mr. Chairman.
Senator Tillis. On behalf of the Chair, Senator Moody.
Senator Moody. Thank you, Mr. Chair.
I appreciate all of you being here. It is never an easy
thing to sit and stand for questions among all of my esteemed
colleagues. Thank you very much, and thank you to your
families. I often find these are harder on our families than it
is on the folks taking the incoming questions. So thank you
very much.
Each of you comes with a unique background and, indeed,
experience and expertise in the jobs that President Trump and
our Nation is asking you to take on. I know you could probably
make a lot more money in the private sector, and I am always
inspired by people who are willing to take a timeout of their
private practices or other endeavors that may bring them more
pecuniary gain to serve this Nation, and I appreciate that.
Thank you so much.
And we are at a time where we have an incoming
Administration that is having to marshal resources to deal with
a mess and a dangerous situation like we have never seen, maybe
outside wars. We are having to--not only human resources, but
the financing to deal with one of the largest influxes of folks
surging into this Nation, some say 11 million, some say up to
20 million. If you take the more conservative number, that is
more than the population in 42 of our States.
Most of those were barely vetted. Many of them, we don't
know what their backgrounds are. Many have proven to be really
dangerous criminals, leading to rapes, murders, robberies,
aggravated assaults. I could go on and on and on. I saw it
firsthand as Florida's attorney general and fought very hard to
stop what was happening.
But it became very clear that there was an intentional
destruction of any semblance of security at our border. We saw
this because we saw known people on the terrorist watchlist and
other criminals that we later found, and it was a cover-up. We
had both Administration, our President, a Secretary in charge
of DHS say our border was secure the whole time.
So now you come in at a time where you are going to have to
use the law to help remedy what we are faced with. And I am
grateful for a President that came in and has tried as fast as
possible to remedy the situation that we as America find
ourselves in, but you are going to have to deal with what is
left by somebody who is supposed to be a commander-in-chief
protecting this Nation.
This morning, I introduced an Expedited Removal of Criminal
Aliens Act. This has been getting a lot of attention because
you have an Administration trying to use what law is available
to them, some as far back as the Alien Enemies Act, but you
have to use--I think that was in the 1700's, and people are
criticizing them for that, but we are in historic unprecedented
time, so you have to use the tools that are available to you to
protect this Nation and its people.
As the courts are trying to figure out what that looks
like, many are frustrated because it appears so many of these
district courts are trying to stymie this President and indeed
what you will be charged with, of delivering a remedy, a
recovery, and the protection of our people, but in the
meantime, we need to start moving here in Congress to ensure an
expedited process to get these dangerous people out of here.
I am going to start with you. The person that I had the
privilege of introducing, Mr. Edlow, is an act like this
needed, and can it be useful to this Administration?
Mr. Edlow. Senator, first of all, thank you so much for the
kind introduction. I greatly appreciate it.
I am aware of your legislation. I look forward to, if
confirmed, working with you and with our departmental partners
to see it move forward. I think it is absolutely necessary.
Senator Moody. And as a result of all of the litigation
around the Nation, it is often said by some of my colleagues on
the other side of the aisle, and they point out, that this
Administration has had more orders against them. As we are
trying to show, this is probably because these nationwide
injunctions and other decisions are certain courts trying to
stymie this Administration and being ineffective in delivering
on promises to the American people to secure this Nation again.
One might say, this shouldn't be surprising because you have an
Administration that is doing their job and using the law on the
books in a way we haven't had to use them before because of the
unprecedented, dangerous, reckless, irresponsible, some would
say criminal actions of the last Administration. Would you
agree, Mr. Woodward?
Mr. Woodward. Senator, thank you for taking the opportunity
to meet with me. And as you and I discussed, I do agree. I am
very passionate about that. There is a tremendous amount of
litigation in the courts right now because President Trump is
doing a tremendous amount. He is being challenged, but he is
also asserting his Article II powers in a way that no President
has ever done before.
Senator Moody. Or had to do.
Mr. Woodward. Or had to do. And so, if confirmed, I look
forward to assisting the President in professionally litigating
and defending his exercise of those Article II powers as often
as is needed.
Senator Tillis. On behalf of the Chair, Senator Schiff.
Senator Schiff. Thank you, Mr. Chairman.
I want to followup on Senator Kennedy's line of questioning
and ask a similar line of yes or no questions just to put a
finer point and make sure that your answers are as definitive
as they sounded.
So let me start with you, Mr. Edlow. Yes or no, would you
ever advise the Administration that it could ignore, disregard
an applicable district court order because you believe the
Supreme Court will ultimately overturn it?
Mr. Edlow. Senator, as I said before----
Senator Welch. Just a yes or no question like Senator----
Mr. Edlow [continuing]. I don't believe I will ever be in
that position but----
Senator Schiff. You may not, but just like you answered
Senator Kennedy, we want to make sure that you are not
misleading anyone. So let me ask the question again. Would you
ever advise the Administration that it could disregard an
applicable district court opinion or order because you believe
the Supreme Court will ultimately overturn it, yes or no?
Mr. Edlow. I don't want to speculate, but I can't see a
situation where I would advise to not follow the court order.
Senator Schiff. So your answer is, no, you would never
advise them to disregard a district court order even if you
thought the Supreme Court would overturn it?
Mr. Edlow. Again, I don't want to speak in----
Senator Schiff. I just want you to be precise and answer
yes or no.
Mr. Edlow. I can't see a time where I would do that, no.
Senator Schiff. Okay. Mr. Gaiser, yes or no?
Mr. Gaiser. Thank you very much, Senator Schiff. I would
advise clients to follow court orders.
Senator Schiff. Even if you believe the Supreme Court would
ultimately overturn the district court?
Mr. Gaiser. Well, Senator, as far as----
Senator Schiff. Yes or no?
Mr. Gaiser. The answer is the same. The President has said
he would follow court orders.
Senator Schiff. Well, the same answer. Yes or no?
Mr. Gaiser. Senator, the President has said he would
follow----
Senator Schiff. You were able to answer Senator Kennedy,
but I want to make sure that you were not misleading Senator
Kennedy. Yes or no, would you ever advise the Administration it
could ignore a district court order because you believed the
Supreme Court would ultimately rule otherwise? Yes or no? Would
you ever advise them that?
Mr. Gaiser. Senator, applicable court orders should be
followed.
Senator Schiff. That is not my question. Yes or no?
Mr. Gaiser. Senator, you asked me----
Senator Schiff. Yes or no, Mr. Gaiser? It is a simple
question.
Mr. Gaiser. Senator----
Senator Schiff. Mr. Gaiser, you were able to answer Senator
Kennedy. Are you raising a doubt now about your answers to
Senator Kennedy because you can't answer this question?
Mr. Gaiser. Senator, I would advise clients to follow
applicable court orders.
Senator Schiff. Is that a yes or no?
Mr. Gaiser. I would advise clients to follow applicable
court orders.
Senator Schiff. Is that a yes or no? Let me repeat the
question so there is no ambiguity about it. Would you ever
advise the Administration--you are going to be--if you are
confirmed heading the Office of Legal Counsel that helps
determine whether actions are lawless or lawful, would you ever
advise the Administration that it could ignore an applicable
district court opinion or order because you believed the
Supreme Court would ultimately overturn the order? Yes or no?
Mr. Gaiser. Senator, if I am confirmed to lead the Office
of Legal Counsel, I would----
Senator Schiff. All right. You are not answering the
question, so I guess the answer is to Senator Kennedy, you just
might advise the Administration to ignore a district court
order.
How about you, Counsel?
Mr. Squires. Thank you, Senator Schiff. In my role as
Director, I am not----
Senator Schiff. I am just asking a yes or no.
Mr. Squires. Well, thank you. I wish to clarify I am not--
if confirmed a Director, I am not acting in a legal capacity at
all. I am part of the executive agency branch and therefore
would not be advising clients on any aspects of that.
Senator Schiff. Well, would it be appropriate in your view
for anyone else among legal counsel to do so?
Mr. Squires. In general, court orders should be followed
and respected. There are situations which I recall back from
law school between branches----
Senator Schiff. I guess you are not able to answer the
question either.
Counsel, how about you?
Mr. Woodward. Senator Schiff, thank you. I mean, I agree. I
don't believe it is appropriate to address this hypothetical.
At the Department of Justice----
Senator Schiff. Okay. So you want to revise your answer to
Senator Kennedy then? That is, there may be circumstances where
you advise the Administration to disregard a district court of
opinion because you believe the Supreme Court might rule
otherwise? Is that your opinion?
Mr. Woodward. As a lawyer, the answer is it depends.
Senator Schiff. Okay.
Mr. Woodward. What I can----
Senator Schiff. Thank you. Then we will make sure Senator
Kennedy is aware that you just might, it depends, advise the
Administration to ignore court orders.
Let me ask another question. Mr. Gaiser, would you agree
that it would be unlawful for the President to accept a gift
from a foreign State without the consent of Congress? Would you
agree that is unlawful?
Mr. Gaiser. Well, thank you for that question, Senator.
Senator Schiff. Yes or no?
Mr. Gaiser. Whether something is lawful or not, I would
always want to look----
Senator Schiff. I am just asking you a simple question. Is
it unlawful for the President to accept a gift from a foreign
State without the consent of Congress? Very simple question.
Mr. Gaiser. Senator, as a lawyer, I would always give my--
--
Senator Schiff. I am not asking you for a preamble, just
yes or no.
Mr. Gaiser. Well, Senator Schiff, it depends on the fact--
--
Senator Schiff. Well, Mr. Gaiser, where is the depends on
the facts of Article I, Section 9, Clause 8, which says, ``No
person holding any office shall, without consent of Congress,
accept any present from any foreign State?'' That is the
Constitution. It doesn't say, well, it depends, or it might, or
maybe. It says no person shall do so. Do you find that
ambiguous?
Mr. Gaiser. Senator----
Senator Schiff. I thought you were supposed to be the
strict constructionist. This is what the Constitution says. Is
there an exception for $400 million planes from Gulf Emirs?
Mr. Gaiser. Senator----
Senator Schiff. Is there an exception for that?
Senator Tillis. On behalf of the Chair, Senator Schmitt.
Senator Schmitt. Thank you, Mr. Chair.
I do wonder, though, whether or not we should set up a
chair for a strawman for these hearings because these are all
ridiculous strawman arguments. First of all, the President of
the United States has said he would abide by court orders, and
this Administration has abided by every single court order. So
this contraption that Democrats continue to try to create, to
create some faux constitutional crisis that doesn't exist or,
as it was during the campaign, some threat to democracy to
scare people, they ought to be ashamed of themselves because it
hasn't happened. It hasn't happened.
And I want to give, Mr. Woodward, you an opportunity to
respond when the Senator from California didn't give you the
chance to respond with your answer before I go into my
questions with a limited amount of time.
Mr. Woodward. Thank you, Senator. I will be brief. And I
will reiterate that I don't believe I would ever be asked to
advise my client to defy a court order. It is not happening.
And so the answer, it depends, matters because there is
litigation all across this country right now, and so we have to
look at each and every case very carefully. We advise the
client, and then the client acts. That is the role of the
Department of Justice.
Senator Schmitt. Mr. Edlow, I do want to ask. I have been
raising the alarm on this temporary protected status, or TPS,
for quite some time now. And the Supreme Court has just weighed
in and ruled essentially that Joe Biden had really been abusing
his authority, especially at the end, just sort of waving a
magic wand and really abusing this process. And so there are
350,000 Venezuelans now that will not receive this temporary
protected status because they shouldn't have got it in the
first place. I want to ask, how will the USCIS stop automatic
renewals and kick out folks whose countries do not qualify
anymore?
Mr. Edlow. Well, thank you for the question, Senator. As I
stated earlier, the decision on whether to continue any TPS
program rests with the Secretary. And USCIS would act
accordingly. So depending on the country, depending on when
the----
Senator Schmitt. Well, let's use these Venezuelans.
Mr. Edlow. Senator, I would hesitate to comment on anything
that is under active litigation at this point.
Senator Schmitt. Okay. Let's say there is another--because,
I mean, let's say Haitians, which also fell into that. I want
to know what tools--and I am not asking you to opine on that. I
want to know what tools are going to be used to enforce a
lawful court order----
Mr. Edlow. I understand.
Senator Schmitt [continuing]. To kick people out of here.
Mr. Edlow. So certainly, Senator, the employment
authorization cards, which are essentially the evidence of the
status, are going to set to expire. The systems at USCIS, when
appropriate, are turned off so that renewals are either kicked
out or rejected. And then at that point, it becomes the
responsibility of our sister agency, ICE, to work on the next
step, which would be the apprehension and removal of any
individual that remained after that period of time.
Senator Schmitt. So USCIS decides who qualifies for TPS?
Mr. Edlow. Well, after a TPS designation is made, USCIS
would determine eligibility----
Senator Schmitt. Correct.
Mr. Edlow [continuing]. Based on the law.
Senator Schmitt. So they need to prove they have been here
since the designation date and meet other rules. But the Biden
Administration made it with a rubberstamp, right? It totally,
completely obliterated the process that was put in place. Is
that your understanding?
Mr. Edlow. Senator, my understanding is everything the
Biden Administration did with regard to USCIS was with a
rubberstamp. So, yes, TPS, the way in which parole was
utilized, the way in which anything was utilized was a
rubberstamp, while not caring about the long lines of people
within the backlog that just kept growing because they weren't
taking that seriously. They were reassigning resources to just
handle the unlawful border activity.
Senator Schmitt. Right. So what could be introduced as far
as new vetting rules to make sure this isn't just being handed
out like candy? What could be done?
Mr. Edlow. Well, certainly, you know, if confirmed, I am
happy to work with Congress to figure out if there are
additional authorities that we need in order to move in that
direction. But I really do think that, once confirmed, we can
take a look at things internally, turn some processes on, act
both regulatorily and sub-regulatorily to take a real bite out
of some of this and to actually, for the first time, feel
confident in the vetting that is being done by the agency.
Senator Schmitt. Thank you.
Mr. Squires, I do want to ask you, switching gears. China
has been ripping us off for a very long time as it relates to
our IP. And I know there is a lot of concern with some of the
breakthroughs they have gotten from DeepSeek. I mean, there is
no IP acknowledged, really, if it is not being ripped off. It
just isn't part of what they are and how they how they handle
these things.
What concerns do you have or what can be done to combat
Chinese IP theft? But then as we get into these large language
models moving forward, how do you view generally accepted IP
laws to be--how does it work into large language models moving
forward? Because you have heard some people talk about just
abandoning IP altogether.
Mr. Squires. Thank you, Senator. It is quite a complicated
question.
Senator Tillis. Mr. Squires, I know that it is. Could you
submit that for the record? Because I am very interested in the
detailed response.
Mr. Squires. I would be happy to, Senator.
Senator Tillis. On behalf of the Chair, Senator Lee.
Senator Lee. Thank you very much, Mr. Chairman.
And thanks to all of you for being here and especially for
your willingness to serve.
Mr. Edlow, let's start with you. The Biden Administration
turned a lot of things on their heads. One of the many things
they turned on their heads involves the optional practical
training program. And they turned it into the single largest
guest worker program, bypassing the traditional limitations,
traditional rules that would otherwise apply by operation of
law on other visas like H-1B in the United States. What changes
would you plan, if confirmed, to make in order to fix that
issue?
Mr. Edlow. Thank you, Senator. I think the way in which OPT
has been handled over the past 4 years, with the help of
certain decisions coming out of the D.C. Circuit Court, have
been a real problem in terms of misapplication of the law. What
I want to see would be essentially a regulatory and sub-
regulatory program that would allow us to remove the ability
for employment authorizations for F-1 students beyond the time
that they are in school.
Senator Lee. Great. Thank you.
Mr. Gaiser, I would like to turn to you next. You are an
issues and appeals guy. You have clerked for two Federal court
of appeals judges, Judges Rao and Edith Jones, two of the very
best judges we have ever had in the U.S. Courts of Appeals, and
also for Justice Alito. At Jones Day, I take it you worked in
the issues and appeals section, and that is what you do. That
is exactly what we need inside the Office of Legal Counsel, in
my view.
Trial work is important. It is fundamental. It is essential
to our system. And it is very, very different than doing
appeals, so I just wanted to note that. One of my colleagues
made an observation about that. To me, that matters next to
nothing, how much time you have spent in a trial courtroom or
in front of juries. That is not the work of the Office of Legal
Counsel, which has historically been staffed quite
appropriately, in my view, by people with stellar, blue-
ribboned, usually good appellate court experience, appellate
court clerkships, and U.S. Supreme Court experience, so for
whatever that is worth.
Now, you are currently serving as the Solicitor General of
the State of Ohio, further advancing your expertise, your
knowledge, your familiarity with the appellate courtroom. As I
understand it, the Solicitor General of the State of Ohio
operates a little bit differently than many of the others do,
and in ways that almost certainly will prepare you
exceptionally well to head the Office of Legal Counsel. Tell us
about that.
Mr. Gaiser. Thank you very much, Senator Lee. In my
capacity as Ohio Solicitor General, I not only am the chief
appellate lawyer for the State of Ohio, I am also in charge of
the attorney general's Opinions Unit, where the attorney
general of Ohio is authorized to opine definitively on Ohio law
to certain authorized requesters. I understand that role is
very similar to the Office of Legal Counsel's historic role of
opining on Federal questions.
Senator Lee. Stunningly similar, in fact. The U.S.
Department of Justice operates as something of a full-service
law firm, the biggest in the country, and the office that you
will be heading, should you be confirmed, is that office, that
office that provides people with advice. That necessarily
requires you to have extensive appellate experience and a good
ability to read how appellate courts, including and especially
the Supreme Court, will respond.
Mr. Woodward, if confirmed as the associate attorney
general, in addition to being the number three person at the
Department of Justice, you will be the man. You will be, in
Spanish we would say ``el mero mero,'' the law, when it comes
to all of the oversight of all civil litigation and a number of
other matters as well. Tell me how, in that position, if
confirmed, you could help the Department of Justice rein in the
burdensome, excessive regulation and the excessive delegation
of lawmaking power to our executive branch agencies through the
non-delegation or otherwise.
Mr. Woodward. Senator, thank you for the question and thank
you for taking the opportunity to meet with us in advance of
the hearing.
As the associate attorney general, there would be a number
of opportunities for us to challenge the burdensome regulations
that have been imposed on our Nation, on our businesses, on our
people. Affirmative litigation is a critical aspect of what the
associate's office oversees. What we see in the papers today is
the defense of Executive orders. What is talked less about is
all of the affirmative cases that are being brought by the
Civil Division, the Civil Rights Division, the Tax Division,
the Antitrust Division. And so challenging unconstitutional
regulations, as I alluded with your colleague earlier, would be
a key piece of what I expect the Department of Justice to do.
Senator Lee. Thank you for sharing that, and I want to
followup on that just briefly. When some people hear the word
unconstitutional, they might think, understandably, that what
you mean is unconstitutional in a way that has been recognized
by the Supreme Court, in a way that is directly traceable as
unconstitutional to a particular court ruling, especially a
Supreme Court ruling. But more broadly speaking, that is not
necessarily the appropriate way to view it, is it? In other
words, there are certain features of the Constitution that
don't always get tested. If they are tested, they are not
always directly addressed by the Supreme Court. Constitutional
avoidance, for example, is a means by which the court will
often try to decide a case or controversy on a different ground
if the constitutional question can be avoided.
And so, the non-delegation doctrine itself has been
acknowledged by the Supreme Court, tends not to be enforced by
the Supreme Court, and I would imagine that that is where
Department of Justice that understands the implications of
Article I, Section 7, the fact that in order to make, modify,
alter, create, or repeal a Federal law, one has to follow the
two-pronged formula of Article I, Section 7, which includes
bicameralism and presentment. Is that something that, in your
view, a good associate attorney general ought to examine?
Mr. Woodward. Yes, Senator, absolutely.
Senator Lee. Thank you very much, and I see my time has
expired. Thank you, Mr. Chairman, for your characteristic
generosity in letting me exceed that.
Senator Hawley [presiding]. I love giving away time that is
not mine, Senator Lee.
[Laughter.]
Senator Lee. Especially when we are talking about the non-
delegation----
Senator Hawley. Exactly, it doesn't get more exciting than
that.
Senator Lee. In Provo, we speak of little else.
Senator Hawley. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman.
I ask the following two initial questions of every nominee
before any of my Committees to get at the fitness to serve. So
we will start with Mr. Edlow, and we will just go right down
the line. Since you became a legal adult, have you ever made
unwanted requests for sexual favors or committed any verbal or
physical harassment or assault of a sexual nature?
Mr. Edlow. No, Senator.
Mr. Gaiser. No, Senator.
Mr. Squires. Never, Senator.
Mr. Woodward. No, Senator.
Senator Hirono. Have you ever faced discipline or entered
into a settlement related to this kind of conduct?
Mr. Edlow. No, Senator.
Mr. Gaiser. No, Senator.
Mr. Squires. No, Senator.
Mr. Woodward. No, Senator.
Senator Hirono. I think that both Mr. Gaiser and Woodrow
testified that you would advise the Administration to follow
all court orders, correct?
Mr. Woodward. Well, Senator, as I've said, it depends, and
I realize that that is frustrating----
Senator Hirono. Oh, it depends on what the court order is?
Okay. Let me ask you another question then. In the Abrego
Garcia case, the Supreme Court said that the Administration had
to ``facilitate his return from the El Salvador prison.'' He is
still there. Is the Administration complying with the Supreme
Court's court order? We will start with Mr. Gaiser and then go
to Mr. Woodward.
Mr. Gaiser. Well, Senator, thank you very much for that
question. As Ohio Solicitor General, I am not now at the
Department, and the Department of Justice speaks through its
briefs on matters that are in active litigation, and so it
would be inappropriate----
Senator Hirono. Well, in your option----
Mr. Gaiser [continuing]. For me to comment.
Senator Hirono. You are about to become the person who is
going to be advising the Department formerly known as Justice,
as far as I am concerned. So what do you think? The fact that
Mr. Garcia is still in prison, is the Administration following
the Supreme Court's order to facilitate his release?
Mr. Gaiser. Well, Senator----
Senator Hirono. You don't know?
Mr. Gaiser. As I said, I am the Solicitor General of Ohio
now. I am not now at the department, and it would be
inappropriate for me to comment on actively litigated matters
because the department speaks through its filings and its
briefs.
Senator Hirono. So when you actually become the person at
the OLC, would you advise the Administration to facilitate the
release of Mr. Garcia?
Mr. Gaiser. Well, thank you, Senator. If I am----
Senator Hirono. That is what the court is telling him.
Moving on, Mr. Woodrow, what do you think?
Mr. Woodward. Well, Senator, I appreciate you giving me the
opportunity to respond.
It does depend. If we are going to discuss hypotheticals,
what about a hypothetical----
Senator Hirono. It is not a hypothetical. This is the
Supreme Court's order to the Administration. They are
confronted with this order right at the moment. Mr. Garcia has
not been released.
Mr. Woodward. The question about following court orders is,
of course, a hypothetical, and the hypothetical can be
complicated. What if a district court----
Senator Hirono. That is why, Mr. Woodrow, I asked a
specific question relating to a specific situation. And since
you also don't want to respond, there you have it. And, you
know, both of you are going to be in a position to be advising
this Administration, so I think your responses are telling.
For Mr. Edlow, President Trump suspended the U.S. Refugee
Settlement Program indefinitely on his first day in office.
However, on February 7, he signed an Executive order requiring
all agencies to promote the resettlement of white Afrikaners
into the United States. And less than 3 months later, these
Afrikaners are entering the United States, having completed a
process that normally takes years.
What changes has USCIS made to the refugee resettlement
process to expedite the arrival of Afrikaners? And if you are
not there yet, you don't know, you can just say you don't know.
Mr. Edlow. Well, Senator, I am there as a senior advisor--
--
Senator Hirono. Oh.
Mr. Edlow [continuing]. But I do not know. And I can tell
you, as far as I have seen, the process is the same as any
other refugee resettlement process for USCIS' purposes.
Senator Hirono. Why is it that Afrikaners are being
expedited in terms of their being able to resettle in the
United States?
Mr. Edlow. Senator----
Senator Hirono. Why are they being given what looks like
highly preferential treatment?
Mr. Edlow. Senator, the President has the authority through
executive action and under the law----
Senator Hirono. Okay. That is because the President feels--
--
Mr. Edlow [continuing]. To determine----
Senator Hirono [continuing]. Like doing that. Okay. That is
the answer.
And are these Afrikaners going to be vetted individually so
that nobody is coming in who, for example, shows any
antisemitic sentiment? Are they being vetted individually?
Mr. Edlow. Senator, again, I can't speak to specifics with
regard to any of the individuals coming in, but my
understanding is that they are being vetted for----
Senator Hirono. Individually. I hope so, because, for
example, there was one who was quoted as saying that Jewish
people are untrustworthy and they are a dangerous group. I
would say that maybe that person shows antisemitic views. And
so your testimony is that they are being vetted individually?
Mr. Edlow. Senator, again, I am not currently leading the
agency. I do not have a view into how they are being vetted. My
understanding is they are being vetted as refugees have been
vetted in the past.
Senator Hirono. There are serious concerns about why this
is happening. And, for example----
Senator Hawley. Thank you, Senator.
Senator Hirono [continuing]. The people who are Afghani are
not getting this kind of highly preferential treatment. Thank
you.
Senator Hawley. Thank you, Senator.
Congratulations to the nominees. Thank you for being here.
Mr. Woodward, let me start with you. You and I had a nice
chat the other day. I appreciated the visit. When we were
talking about the Civil Division, you referenced some
tightening up that you believe needed to happen. And you
brought up in that context the Mifepristone case. So I just
want to drill down on this for a second.
Two weeks ago or so, the Department of Justice entered and
filed a motion in the Mifepristone case in the Northern
District of Texas. This is a Missouri case where the State of
Missouri and some others are seeking to put back in place the
safety protocols for the abortion drug that existed before Joe
Biden removed them. The Department of Justice attorneys from
the Civil Division filed a motion in that case seeking to have
the case dismissed. Is it your understanding that that was a
mistake? What is your view of this? I mean, you raised this
case to me.
Mr. Woodward. Senator, thank you for the question. As you
can appreciate, it is longstanding policy of the Department of
Justice not to comment on pending cases. Those briefs do speak
for themselves.
The reason I raised that case with you is because we were
having a, I thought, very helpful discussion about the fact
that litigation should be holistic. And that as the Department
of Justice continues to litigate on behalf of the President,
there is an obligation, a duty even, for us to communicate with
those with whom we are litigating against. We should be
personal in our litigation, we should speak to those with whom
we are litigating, and we should try to come to an agreement.
We don't always have to resolve our disputes in court.
Senator Hawley. Which did not happen in this case. Is that
the thrust of it?
Mr. Woodward. That is correct, Senator.
Senator Hawley. In other words, the Department of Justice
did not work with the State of Missouri. I have to tell you,
though, I am surprised and concerned by the department's
decision on the merits in this case. And I have said as much to
your soon-to-be boss, the attorney general. I frankly don't
understand it. And I am sure this case isn't going away. I
mean, the Department of Justice said that they did not think
venue was appropriate.
So let me just ask you, if the States refile in another
venue, is the department going to oppose the States on the
merits? I mean, is the department actually going to defend Joe
Biden's pro-abortion regulations?
Mr. Woodward. Senator, thank you for the question. I have
had discussions with the attorney general about this case in my
role as counselor to her presently. Of course, it would be
inappropriate for me to comment on those discussions.
What I can tell you, Senator, is that, if confirmed, we
would look very specifically at every case to have been filed
by the Biden Justice Department and ensure that those cases are
appropriate and also ensure that we are taking the right track
in those cases. And so I am happy to talk with you and your
colleagues about that case and any other case, if confirmed.
Senator Hawley. As you, I hope, know, before President
Biden, mifepristone, the abortion drug, had long had a series
of safety protocols attached to it ever since it was first
offered in the United States over 20 years ago, including
requirements that a physician be the one to dispense the drug,
that a physician screen for ectopic pregnancies, that a
physician be present to provide emergency care if necessary.
President Biden removed all of these, and now the drug is
available. You don't have to be a physician to prescribe it. It
can be sent through the mail. Telehealth providers from foreign
countries are now providing this drug.
And it doesn't matter as a consequence what any State or
voters in any State decide, the voters of my State, for
example. Any limits on the drug imposed by voters of the State
consistent with the Dobbs decision is automatically overridden
by what Joe Biden's FDA decided to do. So this is a matter of
extreme importance. And I just point out 70 percent of
abortions now in the United States occur because of this drug,
which can now be administered totally unsupervised.
Let me just ask you. Are you familiar with the Ethics and
Public Policy Center's recent survey of mifepristone
prescriptions, 865,000 mifepristone prescriptions over a 5-year
period. Have you seen that study, Mr. Woodward?
Mr. Squires. Senator, I apologize. I have not seen that
study.
Senator Hawley. Well, let me just bring you up to speed.
What the study shows is that over 10 percent of women who are
prescribed this drug, again, without physician help or aid,
over 10 percent of these women experience a serious adverse
health event. That means an infection, hemorrhaging, a life-
threatening event, sepsis that leads them to go to an emergency
room. That is 22 times higher than what the FDA label currently
admits is the risk of a serious adverse health event. This is
the largest study of mifepristone done, I think, ever, 865,000
separate prescriptions were studied.
So my point is this. The safety needs are extremely real.
They are pressing. The rights of the States to protect their
citizenry, I think, is extremely well-founded and well-
developed, by the way. I mean, they are seeking the right
relief in the right courts. And I just hope that the Department
of Justice will do--as you were saying a moment ago, I hope the
Department of Justice will work with these States and will also
vindicate the rights of voters to decide these issues and the
rights of States to protect their citizens. I just can't
imagine why the department would want to defend the abortion
regulations of Joe Biden, who was the most rabidly pro-abortion
President in American history, very different than our current
President, who has been the most pro-life President in American
history.
Mr. Woodward. Senator, I appreciate the question. In the
wake of Dobbs, I agree the law is quite clear, and I am going
to sound like a broken record, but the President of the United
States has said time and again he will follow the orders that
come down from the Supreme Court.
Senator Hawley. Let me ask you here about one other
religious liberty issue. Are you familiar with Mark Houck? Does
that name ring a bell? Do you know about this case, Mr.
Woodward?
Mr. Squires. I am sorry, Senator, I am not familiar.
[Photograph is displayed.]
Senator Hawley. Well, that is all right. I think we have
got a picture of Mark. Mark Houck is a pro-life demonstrator,
peaceful demonstrator, a Pennsylvania man. Here he is with his
family, his kids. They are at mass there. He is a faithful
Catholic. Mark Houck took one of his boys, pictured here, to an
abortion center to go and walk on the streets, pray, and offer
any counsel to any women who might voluntarily want to receive
it, pray with them, et cetera.
For this, he was arrested by the United States Department
of Justice. They sent a SWAT team to his home in the early
hours of the morning in rural Pennsylvania. They detained his
children. They used the full SWAT regalia, including
semiautomatic weapons, rifles, and so forth, to take him into
custody. He was taken into custody. He was charged like a
criminal under the FACE Act. He was acquitted by the jury,
which is truly remarkable.
I want to emphasize the State of Pennsylvania had the
opportunity to charge Houck. They didn't do it because they
didn't think--liberals in Pennsylvania didn't charge him
because they knew there wasn't a case. The Biden DOJ charged
him anyway, treated him like a terrorist, and a jury acquitted
him, thank the Lord. Now, Mr. Houck is suing the Department of
Justice for what they did under the Biden Administration. So
far, DOJ is opposing his suit. Doesn't this seem like something
to you that should be settled? I mean, shouldn't this man have
his name cleared? I want to emphasize the jury acquitted him.
But shouldn't this man have his name cleared and have DOJ admit
that what the Biden Administration did to him was just dead
wrong?
Mr. Woodward. Senator, in my practice over the last 4
years, I saw firsthand how the Biden Administration weaponized
the Department of Justice, and there is no place for
weaponization at the Department of Justice. I can assure you
that we will look at every single case, every single case, to
ensure that there is no weaponization at the Department of
Justice. I look forward, if confirmed, to working with Deputy
Attorney General Todd Blanche, with Attorney General Pam Bondi.
We will find those cases, and we will resolve them.
Senator Hawley. Good. I am glad to hear that. I think Mr.
Houck deserves to have his name cleared. I think he deserves
more than an apology for what Joe Biden did to him. He deserves
recompense. He deserves restitution. And he deserves to get
what you have gotten for your clients, which is an
acknowledgement that what the Government did to them is wrong.
What the Government did to him is wrong. It was flat-out
religious persecution, nothing but that, Joe Biden trying to
send a signal to every religious believer and every pro-life
believer in this country, don't you dare exercise your beliefs
in public, or we might come with a SWAT team and haul you off
to prison. It is a disgusting abuse of the First Amendment.
Thank goodness a jury acquitted him. Now he deserves to be made
whole, and I hope that you will be part of that.
I see nobody else here. Are we going to let it go?
Well, they tell me that Senator Cruz is on his way, which
means that I can just keep right on questioning. So what do you
think, Mr. Woodward? I am sure you are really enjoying this
line of questioning.
Let me ask you something different. Let me ask you about
President Trump's Executive order on Title IX and men and
women's sports. Something you and I talked about is the need to
see that the President's Executive orders are enforced, that
States are complying with them, that they are complying with
Federal law. Talk to us about the importance of his order
protecting women, getting biological men out of women's sports.
What does the department need to do there? What do you think is
the priority? And tell us why this is so significant.
Mr. Woodward. Thank you for the question, Senator. You
know, this is a deeply personal issue to me. I have a 2-year-
old daughter who has three older brothers. She can hold her
own, but it is a problem. It is an issue that has to be
addressed. The President has taken this head-on as an important
issue in his Administration.
The Executive orders speak for themselves. And although I
can't comment on pending litigation that has been brought by
the Department of Justice, we have seen that the Department of
Justice is enforcing the President's Executive orders. To quote
the President, ``We will see you in court.'' Don't follow the
President's Executive order? We will see you in court.
Senator Hawley. And you would send that message to
universities that are currently failing to comply, that are
violating Title IX. To be clear, Title IX protects women's
sports. Title IX creates the right of women to play in sports
that have integrity, where they are protected from danger,
where they are given the same opportunities as male athletes.
These universities that are putting biological men into women's
sports and women's locker rooms are flagrantly violating Title
IX. So your message to those universities is, if you don't
amend your ways, you can expect to face off against the Justice
Department in a court of law.
Mr. Woodward. Senator, absolutely. I mean, it is a
complicated issue. It is often attempted to make this out as an
easy issue, but it is a complicated issue. There are sports for
which it is advantageous, right? Men should not be competing in
women's gymnastics, for example. And so this is not an issue
that is easy to summarize or to make soundbites over. It is
complicated, which is why it is important that the Department
of Justice is paying careful attention to what the law is and
applying the facts to the law.
Senator Hawley. Mr. Gaiser, let me just ask you about
nationwide injunctions for a moment and about the proliferation
of nationwide injunctions. We have seen them explode. They were
first used in the 1960's. Then they are almost never used. Of
course, a nationwide injunction is when you have one individual
district court that purports to bind not just the parties
before the court, but purports to impose its policy, its
ruling, its order on the entire country, including parties not
before the court at all, parties well outside the court's
geographic jurisdiction or otherwise.
Tell us about the importance of reigning in the district
courts to their proper constitutional role, which does not
allow any individual district court to sit in the place of the
Supreme Court and make policy for the Nation. Tell us about the
importance of this.
Mr. Gaiser. Well, thank you very much, Senator Hawley. And
as you are aware, district courts are charged with adjudicating
cases and controversies. And the Supreme Court of the United
States has said that that task looks to the relief sought by
the parties, and its equitable authority extends to the amount
of relief necessary to redress those particular injuries.
And as you are also aware, the Supreme Court is currently
now considering some litigation involving that, so it would be
inappropriate for me to comment on the specifics of that. But I
agree with you that Article III imposes genuine limits and
authorities for district courts, and it is in the text on the
judicial power.
Senator Hawley. Setting aside the litigation currently
before the Supreme Court, do you think that it is appropriate
and maybe necessary for Congress to use our Article I authority
to make clear that an individual district court does not have
the constitutional authority to bind parties that are not
before it or otherwise not within its jurisdiction? I mean, is
that something that we in Congress ought to consider doing?
Mr. Gaiser. Senator, I agree that Congress has an important
role in setting the jurisdiction of the inferior courts that
Congress creates. Those are the creature of this and the
House's work. And so I think this body has an important role to
play and could make a significant contribution to justice being
done as opposed to what I think millions of Americans are
alarmed to see, which is the weaponization of the entire
justice system to oppose the agenda that they enacted by voting
for elected representatives like President Trump.
Senator Hawley. Well, I think we are looking at something
that is very much a constitutional crisis. It is a growing
crisis, and it is a crisis of district court judges that are
way outside the bounds of the Constitution, that are seizing
power that absolutely does not belong to them. And you are
right, Article I, it does give us the authority to establish
those courts in the first instance, to govern those courts. And
in this case, I think it is time for this body to take action
to ensure that those courts stay within their proper
constitutional bounds.
Senator Cruz, I could go on for another 15 minutes, but if
you would like to ask questions, I am happy to recognize you.
They are really enjoying my lengthy, lengthy questions. They
have been praying you would arrive.
The Chair recognizes Senator Cruz.
Senator Cruz. I appreciate the always loquacious Senator
from Missouri, and I hope you did not have to resort to your
own personal poetry to fill the time.
Senator Hawley. That was going to be next.
Senator Cruz. Well, then I apologize for depriving you of
that particular joy.
Let me start by welcoming today's nominees. Mr. Squires,
Mr. Edlow, Mr. Gaiser, Mr. Woodward, I am grateful that the
President has nominated each of you to step into these critical
roles at such a pivotal time for the Trump Administration.
Over the past several months, President Trump has governed
with clarity, purpose, and boldness. He has issued Executive
orders to do what the American people demanded at the ballot
box, eliminate crime in our streets, secure the southern
border, and put the Federal Government firmly back on the side
of law-abiding citizens.
Under his leadership, the Department of Justice is no
longer targeting political opponents. It is targeting violent
criminals and criminal cartels. It is restoring order to a
system that for years was being used to punish dissent and to
reward lawlessness. Attorney General Pam Bondi is advancing
that mission with energy and resolve.
But make no mistake, the far-left resistance is organized,
lawless, and aggressive. Far-left activist groups are flooding
the courts in D.C., Boston, and San Francisco with lawsuits
designed not to win on the law, but to block the President's
agenda through judicial activism. And too many judges are going
along with it. In just the last 4 months, more nationwide
injunctions have been issued by lone district judges than in
the entire 20th century.
Let me repeat that. In 4 months, we have seen more
nationwide injunctions than America had seen in the entire 20th
century. That is not oversight. That is obstruction. That is
activism. One plaintiff in one courtroom is now able to freeze
Federal policy for 340 million Americans. This is not justice.
It is political sabotage from the bench. And it is happening
because the left can't win at the ballot box. It turns out
releasing murderers, rapists, and child molesters, releasing
gang members, is not a popular policy with the voters. But with
left-wing radical judges, that's a different story.
That is why your nominations matter. The Administration
needs serious, principled leaders, men and women who know the
law, who have the backbone to carry it out in the face of
political pressure. And the American people deserve a DOJ, a
USCIS, and a USPTO that defends their rights, secures their
communities, and follows the Constitution, not simply the edict
of activist judges. Each of you has a critical role to play in
that.
Mr. Woodward, you've defended clients in some of the most
politically charged cases in the country. If confirmed, how
will you ensure that the DOJ's Civil Division resists political
pressure, not just from the outside but from within, and
returns to equal enforcement of the law?
Mr. Woodward. Senator, thank you for the question. Thank
you also for the opportunity to meet in advance of this
hearing. It is an important question, and I don't want my
answer to be taken lightly, but I am not at all intimidated by
political pressure. As I have demonstrated through my career,
people have taken issue with lots of the work that I have done.
And for me, what is important is ensuring that the law is
upheld, that the Constitution is respected. And I can assure
you, Senator, that if confirmed, I will make sure that the
Department of Justice does just that, that we root out the
weaponization that has been so long embedded therein. We will
find it. We will eliminate it. It will cease to exist.
Senator Cruz. You have seen firsthand how prosecutions can
be weaponized. What safeguards do you intend to implement to
prevent civil enforcement from becoming a political tool?
Mr. Woodward. Senator, I appreciate that question. As
counselor to the Attorney General, I am already working with
the Attorney General to build those safeguards in. There are
hundreds and hundreds of cases that are litigated by the
Department of Justice. We need to know what they are. We need
to identify them. We need to be prepared to understand what the
arguments are. I will work very closely with the deputies that
have been confirmed by the Senate and that are acting in that
capacity. We will find those cases. We will organize.
One of the reasons I would be so blessed to come to the
department is to help organize that litigation. It is something
that I have done in the past at my law firm and at the law firm
that I worked before that. I am confident that I can do it if
you give me the chance.
Senator Cruz. The associate attorney general oversees the
Civil Division, Civil Rights, Antitrust, and other major
components. What is your top priority for restoring public
trust in those divisions?
Mr. Woodward. Senator, again, I hope I am not making light
of the question because the answer is easy. Follow the law.
Senator Cruz. Mr. Gaiser, you clerked for three of the most
respected constitutionalists in the Federal judiciary, Judge
Edith Jones, Judge Neomi Rao, and Justice Samuel Alito. All
three are friends of mine. All three I respect deeply. How did
those experiences shape your legal philosophy, particularly
regarding the role of the executive branch in faithfully
executing the law?
Mr. Gaiser. Thank you so much for that question, Senator
Cruz. When you are a law clerk, your first task is to do your
best to state the law in a way that the judge can use your
work. And you are not the decider. You are there to do
research, to provide your independent, candid, and honest view
of the law. And should I be so fortunate to be confirmed as the
assistant attorney general of the Office of Legal Counsel, that
would be my primary aim, to always provide the best reading of
the law and the best legal advice that I can give based on the
questions that the Office of Legal Counsel receives.
Senator Cruz. Thank you. And, Mr. Squires, the PTAB was
created to improve patent quality and to provide a faster,
cost-effective alternative to litigation. But in recent years,
many small inventors and startups have expressed concern that
it disproportionately favors large challengers and undermines
the value of their patents, that it is effectively an arm of
big tech. What is your assessment of those concerns, and do you
believe the system is functioning as Congress intended?
Mr. Squires. Thank you for the question, Senator. I think
if you look at the data, the concerns are in plain sight. The
IPRs themselves have a 68 percent defect rate, if you will. If
the American patent system is a factory, 68 percent of the
products we put out are found effective in a later proceeding.
So the way to address it is to have patents, if I can
harken back to my opening statement, born strong. We need to be
able to incentivize getting the prior art in at the examination
stage or closely thereafter, and having the improved quality, I
think, will alleviate many concerns.
There is also a concern I have with IPRs that if, in fact,
there is this prior art out there and validating patents at
these great rates, is it or is it not getting back into the
system and the examination on the front end so it can be
applied when the applicants are asking for rights?
Senator Cruz. Okay. And a final question to Mr. Gaiser and
Mr. Woodward. I talked about the avalanche of nationwide
injunctions we are seeing from individual district judges. How
concerned are you about these nationwide injunctions, and what
can be done to ensure that judges stay in their proper lane
rather than trying to subvert the authority of the President
and the will of the people who elected him?
Mr. Gaiser, we will start with you.
Mr. Gaiser. Well, thank you, Senator Cruz. As Solicitor
General of Ohio, I have the privilege of defending Ohio's laws
against statewide injunctions that are sometimes sought. And I
always make the same argument, that courts are empowered to
offer relief no broader than necessary or burdensome than
necessary to redress the injury of those who are properly
parties before the court. I think courts should follow that
guidance, which the U.S. Supreme Court has long established,
and dates back all the way to the Anglo-American legal
tradition in equity.
Senator Cruz. Mr. Woodward?
Mr. Woodward. Senator, I am very, very concerned. It should
not be the case that a President duly elected then has to
convince 600 individual judges to enforce the policy
prerogatives of that Administration. This is a bipartisan
problem. This is a problem that has persisted, as you observe,
for some time now. It is a problem before the Supreme Court,
and, of course, it is the policy of the Department of Justice
not to comment on ongoing litigation. But, candidly, it is a
problem I am not sure the Supreme Court will solve. You know,
as I look in the Constitution, Article III doesn't seem to have
any discussion of nationwide injunctions in it, and so it is a
dubious one to be sure.
Let me be clear, however, is that it is not a problem I am
unafraid to face. If confirmed, we will take on all of the
litigation in these courts. We will defend the President's
prerogatives, and, as a criminal defense attorney, I can tell
you that I am used to losing in the district court. We make our
record, and that is why God invented the court of appeals.
Senator Cruz. Amen.
Let me thank each of the nominees. Thank you for being here
today.
Written questions to the nominees may be submitted for the
record until May 28 at 5 p.m. And with that, this hearing is
adjourned.
[Whereupon, at 12:37 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
A P P E N D I X
The following submissions are available at:
https://www.govinfo.gov/content/pkg/CHRG-119shrg61819/pdf/CHRG-119shrg
61819-add1.pdf
Submitted by Ranking Member Durbin:
Reproductive Rights Organizations Opposition to Gaiser, statement 2
[all]