[Senate Hearing 119-182]
[From the U.S. Government Publishing Office]
S. Hrg. 119-182
CONFIRMATION HEARING ON FEDERAL
APPOINTMENTS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
MARCH 26, 2025
__________
Serial No. J-119-10
__________
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
61-839 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
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OPENING STATEMENTS
Page
Grassley, Hon. Charles E......................................... 1
Durbin, Hon. Richard J........................................... 3
Graham, Hon. Lindsey O........................................... 5
NOMINEES
Davis, Patrick David............................................. 8
Questionnaire................................................ 26
Responses to written questions............................... 55
Additional materials......................................... 69
Eisenberg, John Andrew........................................... 10
Questionnaire................................................ 76
Responses to written questions............................... 100
Additional materials......................................... 129
Shumate, Brett................................................... 7
Questionnaire................................................ 142
Responses to written questions............................... 184
Additional materials......................................... 199
APPENDIX
Items submitted for the record................................... 215
CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
----------
WEDNESDAY, MARCH 26, 2025
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:17 a.m., in
Room 226, Dirksen Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley [presiding], Graham, Lee,
Hawley, Kennedy, Blackburn, Schmitt, Britt, Moody, Durbin,
Klobuchar, Blumenthal, Hirono, Welch, and Schiff.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. Good morning, everybody. I want to
welcome all of you folks to this hearing to consider the name--
the nominations of John Eisenberg to serve as Assistant
Attorney General for National Security, Brett Shumate to serve
as Assistant Attorney General Civil Division, and Patrick
Davis, who I know a little bit--to serve as Assistant Attorney
General for the Office of Legislative Affairs.
Each of the nominees before us today has impressive
qualifications and we are looking forward to hearing from all
of you. I'd like to thank your family and friends for coming
today. And I know how proud they are of your being here in the
position you've been appointed to.
Mr. Eisenberg, you have impressive academic
qualifications--degree from Stanford Mathematics, Yale Law
School, and you clerked in the fourth circuit, and later for
Justice Thomas. Your academic pedigree is coupled with
extensive experience in national security roles from 2004 to
2009.
You served with distinction at the Justice Department
focusing on national security, intelligence, and
counterterrorism. For your service, you received the Attorney
General's Award for Excellence, and two Intelligence Community
legal awards. You then spent time as a partner at Kirkland &
Ellis, and you did that before leaving your successful practice
to serve your country again at the White House.
You served with legal distinction and received awards for
your service as legal advisor to the National Security Council,
Assistant to the President, and Deputy Counsel to the President
for National Security Affairs.
So, there's little doubt that you will bring great
experience and expertise to the National Security Division.
Your nomination has been praised by bipartisan groups of former
Assistant Attorneys General of the National Security Division,
including Matthew Olsen, who served in the Biden
administration.
Mr. Shumate, you're well suited to serve as head of the
Civil Division. You started your legal career clerking with
Judge Edith Jones, fifth circuit, then entered private practice
focusing on civil litigation and administrative law.
In 2017, you were appointed Deputy Assistant Attorney
General for Civil Division Federal Programs Branch. In that
role, you vigorously defended the rule of law and litigated
issues involving Federal agencies and the administration.
After your time at the Justice Department, you returned to
private practice for a better part of a decade, before
returning to the Justice Department earlier this year, as the
Acting Head of that Civil Division. I have no doubt that your
service in Government has prepared you well for the role you
have been nominated for.
Mr. Davis, I just got done saying I know a little bit about
you. So I'm going to take this opportunity to introduce you
before a couple of my colleagues will introduce the other two.
You're no stranger to the role you've been nominated to. As
I well know, you're extremely qualified to serve as head of the
Office of Legislative Affairs.
You started your career in private practice, but you soon
joined the Department of Justice to litigate complex cases in
Federal Program Branch for most of the Obama administration.
While there, you gained an understanding of how the Justice
Department works from the litigator's perspective, and, of
course, you--I'm told you met your wife there, as well.
A little over 6 years later, you joined my staff as an
investigative counsel, and we worked on a lot together on our
search for truth for the American people.
You worked tirelessly to combat the weaponization of
justice and to defend our Nation's laws. You were instrumental
in my investigation that the Planned Parenthood was violating
Federal law. Because of your work, the public could see these
shocking discoveries for what they actually are, rather than
the false narrative.
You also worked with me to show that Crossfire Hurricane
was based on fraudulent, discredited information--actually paid
for by the Democratic National Committee and the Clinton
campaign. As reward for your efforts to uncover the truth, the
Department of Justice secretly subpoenaed your records. You've
been personally targeted for doing the right thing.
When you left my office, you went on to serve the first
Trump administration, where you worked on Congressional
Oversight and the Religious Liberty Task Forces. Since then,
you've gained valuable experience in the House of
Representatives working hard to uncover the truth about COVID-
19 pandemic origins, and the private sector.
But the thread that ties your service together is courage
of your convictions. You stand up for liberty, equal
application of law--values that I know you'll bring in your new
role.
I'm happy to see you go back to the Department, and I know
that you're ready for whatever that Department throws at you.
Indeed, I'm going to throw a thing or two at you, now. As
you're well aware, I am a rather frequent correspondent with
the Department of Justice. And I look forward to you, again, in
the service of the country and maybe fulfilling answers to my
questions.
The three nominees before us have impressive careers and I
look forward to hearing from them today. Now, to Senator
Durbin.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Thanks, Chairman Grassley. Before we hear
from the nominees, I want to take a moment to speak about the
ongoing attacks on the Federal judiciary by President Trump and
his allies.
Last week, President Trump called for the impeachment of a
Federal judge simply because he ruled against the
administration. He characterized that judge as a lunatic. The
President was not alone.
Elon Musk, the unelected Co-President, and the richest
person in the world, has demanded the impeachment of Federal
judges dozens of times. And House Republicans quickly bend a
knee and rush to introduce articles of impeachment. I
understand Members of the Senate are also cheering that effort
on.
In response to this unprecedented attack on the Federal
judiciary, Chief Justice Roberts issued a rare statement. It
read, and I quote, ``For more than two centuries, it has been
established that impeachment is not an appropriate response to
disagreement concerning a judicial decision. The normal
appellate review process exists for that purpose,'' end of
quote.
We cannot afford to wait and see if this President formally
announces he will defy a court order. We must respond to this
dangerous attack on our courts and judges now.
Some right-wing advocate activists have argued that
impeachment is necessary because of the number of injunctions
issued against President Trump compared to other Presidents.
They claim that this is evidence that Federal judges are biased
against this President.
I would suggest there's a simple and more plausible
explanation. The number of injunctions issued against first and
second Trump administrations is evidence of a President who
repeatedly test or violates the law. The danger posed by the
Trump administration's attack on the judiciary is not abstract.
I recall when there was a demonstration outside the home of
a Supreme Court Justice. We heard over and over again that we
should never condone violence in the pursuit of political
goals.
I joined in that cause on a bipartisan basis and hope, too,
that my colleagues on the Committee will do that today. Because
we have a serious attack on the judiciary taking place. It's
not abstract.
The recent invective by the President and his allies has
resulted in increased threats to the lives of judges and their
families. This is unacceptable in a constitutional democracy.
We can debate the value of nationwide injunctions and the
merits of any particular judicial decision. But violence or
threats of violence, whether from the right or the left on the
political spectrum, are never, never acceptable.
I urge all my colleagues on both sides of the aisles to
join me in opposing this ongoing attack on the judiciary.
Unfortunately, Attorney General Bondi, and other officials at
Justice, have repeatedly shown that they will not defend the
separation of powers. Their loyalty lies with the President. It
should lie with the American people and the Constitution.
The loss of an independent Department of Justice is not
only a threat to the rule of law, it makes our country less
safe. This is especially true of our national security. Since
the start of this administration, every senior career National
Security Division Official has been removed from their
position. Every one of them.
Following this purge, one former Justice Department
Officials said, and I quote, ``There's literally no one at
home, the lights are off.'' That is a disturbing statement. It
reflects a serious problem that cannot be easily fixed.
Among today's nominees is John Eisenberg, who dropped by my
office yesterday. We had an opportunity to discuss his
aspiration to be leading the National Security Division. I hope
for the sake of the Nation, that Mr. Eisenberg is willing to
place country above any personal allegiance to any political
figure.
We're also going to hear from Patrick Davis, nominated to
lead the Office of Legislative Affairs. At her confirmation
hearing, Attorney General Bondi committed to Chair Grassley
that she, or her top staff, would, quote, ``personally review
oversight requests from all Members of the Committee,'' and do,
quote, ``everything we can to respond to you.''
I have sent more than 20 overnight oversight requests to
the Trump administration. I have yet to receive a single
meaningful response to the vast majority of them, including
seven to the Justice Department.
When the shoe was on the other foot, and I chaired this
Committee, and they refused to respond to Chairman Grassley's
similar requests, I stood up for him and I would happy to do
so.
Whether you're on one side of the table or the other,
you're entitled to the dignity of a request and professional
treatment. Mr. Davis, I hope that you'll take that to heart.
I'm also concerned about legal arguments Mr. Shumate, who's
been nominated to lead the Civil Division, has made since
returning to the Justice Department. While all attorneys have a
duty to zealously advocate for their clients, which of course
includes the U.S. Government, they must do so within the
confines of the law.
Yet, in defending President Trump's Executive order
restricting birthright citizenship, Mr. Shumate claimed any
judicial order blocking it would be, quote, ``wildly
inappropriate.'' His words. That is an unacceptable position
for a Justice Department Official to take--especially with
respect to an order that is patently unconstitutional.
As the judge presiding over the case stated, and I quote,
``I'm having trouble understanding how a member of the bar
could state unequivocally that this order is constitutional.''
The disintegration of an independent Justice Department
before our very eyes, including the removal of key National
Security and Counterterrorism Officials should be alarming on
both sides of the table. The Department is critical to
protecting America's public safety and protecting the rights
and liberties of all--all Americans.
I hope to learn more about these nominees' commitments to
these efforts and look forward to their testimony. Thank you,
Mr. Chairman.
Chairman Grassley. Thank you. Senator Durbin. Now, to
Senator Graham for introductions.
OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Graham. Well, thank you.
First, yes, let's condemn violence directed at the
judiciary. I'm all for that. Let's make sure that as
politicians that we don't create problems for those and in that
branch of Government. Then I hope that would include the former
Majority Leader going to the Supreme Court and, you know,
hurricanes coming your way, of course it can--Kavanaugh--and
hear much back then, but yes, count me in.
As to this man, John Eisenberg, I have dealt with him. To
the newer Members of the Committee, he served in the prior
Trump administration. I am completely confident you're the
right person at the right time, John. When you look at his
resume and his experience, you could not have chosen better.
The world is literally in a dangerous place. The last--
previous 4 years has been a disaster. Every conflict zone
known, basically, has gotten worse. And we're going to have to
clean up this mess that was created. And I think John Eisenberg
will be a great counsel, not only to Pam Bondi, but to the
President.
A little bit about him. He's a national security expert.
He's joined by his wife, Catherine, his son, Paul, and his
daughter, Sarah. Welcome. He received a B.S. in Mathematics
from Stanford, and a J.D. from Yale--which means he is very
smart, and a bit confused.
[Laughter.]
Senator Graham. He clerked for Chief--Justice Clarence
Thomas from 2003 to 2004. In the first term, he served as the
legal advisor to the National Security Council, Assistant to
the President, and Deputy Counsel to the President for National
Security Affairs. And Trump won. That's where I met John. I
interacted with him a lot.
He's reasoned, he's thoughtful, he's smart. I
enthusiastically endorse this man. In recognition of his
service, he received the Department of Defense Medal for
distinguished public service and the National Intelligence
Superior Service Medal.
He's held senior positions of the Department of Justice,
including Associate Deputy Attorney General in the Office of
the Deputy Attorney General, and Deputy Attorney General in the
Office of Legal Counsel.
His service earned him multiple distinctions, including the
Attorney General's Award for Excellence, and furthering the
interest of U.S. National Security, and the Assistant Attorney
General's Award for Special NIST Initiative, National Security
Division. Long story short, you can't find anybody better
qualified than this man. Thank you.
Chairman Grassley. I'm going to read Senator Cruz's
introductory remarks of Brett Shumate, a nominee for the
Assistant Attorney General for the Civil Division at the
Department of Justice, because Senator Cruz is at another
Committee meeting.
It is a distinct privilege for me, for Senator Cruz, to
introduce the nominee for the position of Assistant Attorney
General for the Civil Division at the Department of Justice,
Brett Shumate.
Before we dive into Brett's impressive professional
qualifications, I'd like to take a moment to highlight the
personal side of his story. Brett is a proud family man. His
wife, Mary, hails from the San Angelo, Texas, and together they
have four children: Finn, Wit, Everett, and Isley, who by all
accounts are the biggest--is that Buc-ee's fans?
[Laughter.]
Chairman Grassley [continuing]. East of the Mississippi.
Brett's in-laws, Mill and Deb Squires, are also proud Texans,
living in Denton.
Brett's parents, Charlie and Barbara Shumate, are here with
us today. Charlie, a Vietnam veteran, recently retired after a
distinguished 50-year career practicing law in Virginia. It's
clear that Brett's strong roots have shaped his dedication to
public service and to his community.
Brett's current role, Acting Assistant Attorney General for
the Civil Division, is not his first rodeo in public service.
In fact, Brett has had a long and distinguished record of
service to the American people.
Brett began his legal career in public service clerking for
the distinguished Judge Edith Jones of the fifth circuit, where
Brett developed a deep understanding of appellate law and a
steadfast commitment to upholding the Constitution.
Brett sharpened his litigation skills in private practice
for a decade, rising through the ranks to become a partner. His
colleagues at his first law firm, Wiley Rein, described him as
a, quote, unquote, ``skilled litigator'' with quote,
``impeccable ethics and integrity,'' end quote.
Brett returned to public service as the Deputy Assistant
Attorney General for the Civil Division Federal Programs
branch, 2017 to 2019, where he was responsible for leading
litigation on behalf of Federal Government in a wide range of
cases.
In his role, he handles some of the most critical and high-
profile cases of the time in healthcare, national security, and
regulatory enforcement. His experience managing complex
litigation and advising Senior Government Officials on
litigation risk and strategy, in this role, makes him well
qualified for this role.
Between 2019 and 2024, Brett returned to private practice,
as a partner at yet another prestigious global law firm, Jones
Day, where he focused on high-stakes regulatory litigation
involving the Government, particularly in telecommunications
and technology sectors.
Once again, his colleagues, more than 200 of them in fact,
commended him to us. They wrote, Brett is, quote, ``an
intelligent and principled lawyer with unwavering integrity,''
and further quoting, ``uncompromising commitment to the rule of
law.''
Most recently, Brett served as Acting Assistant Attorney
General, Civil Division, in DOJ. In this capacity, he quickly
took on leadership responsibilities within the Division,
ensuring that the Department of Justice remains effective in
carrying out its essential duties. Brett's work in this role
gives us clear proof of his capability to guide the Division
through significant legal challenges.
It is this exact expertise on the job that led President
Trump to nominate him to serve as Assistant Attorney General,
Civil Division, on a permanent basis.
With his unique blend of experience in both private
practice and public service, particularly in the Civil Division
of the Department of Justice, Brett is exceptionally well
prepared to lead this vital Division.
His track record in handling regulatory litigation,
providing strategic legal consult to Government Officials, and
defending the administration's legal priorities across multiple
sectors demonstrates that he has the expertise and leadership
quality needed for this important role.
Senator Cruz ends by saying, I look forward to hearing from
Brett today, and strongly encourage my colleagues on the
Committee to support Brett's nomination to be the next
Assistant Attorney General, Civil Division, Department of
Justice. Thank you.
Now, you folks that have just been introduced, would you
please rise so I can minister the oath?
[Nominees are sworn in.]
Chairman Grassley. I got affirmative action--answer from
each of them, and I think we'll start out with Brett and you
can have your opening statement and introduce family and
friends. And that is same for all of you.
STATEMENT OF BRETT SHUMATE, NOMINEE TO SERVE AS ASSISTANT
ATTORNEY GENERAL, CIVIL DIVISION
Mr. Shumate. Thank you, Chairman Grassley, and Ranking
Member Durbin, and to the entire Committee for extending the
privilege of appearing before you today.
My wife, Mary, and our four kids are here today sitting
behind me. Mary will always be a proud Texan no matter how many
years we live in DC, and she supported me in sacrifice for my
career for over 20 years.
My mom and dad are here as well. My father, Charlie,
retired a few years ago, as you mentioned Chairman Grassley,
after practicing law for 50 years, and serving his country in
Vietnam. It's an honor for me to follow in his footsteps.
I'd also like to thank President Trump and Attorney General
Bondi for this nomination, which comes with the awesome
responsibility of running the Civil Division, the largest
litigating component at the Department of Justice.
I've had the great fortune of working with many wonderful
mentors throughout my career. My first job out of law school
was clerking for Judge Edith Jones at the Fifth Circuit Court
of Appeals. I'm also grateful to so many friends at Wiley Rein
for the mentorship in the early years of my career. At Jones
Day, I had the privilege of working with many outstanding
lawyers, including Don McGahn and Noel Francisco. I'm grateful
to them for their support and guidance during my 5 years at the
firm.
I've also been incredibly blessed to work with many
outstanding lawyers and staff at the Department of Justice over
the years. In fact, one of the best parts of the Civil Division
is being able to work side by side with the career attorneys
and staff who work incredibly hard and are dedicated to serving
the American people.
I had the privilege of serving as a deputy in the Civil
Division from 2017 to 2019. During my time running the Federal
Programs branch, I worked for two outstanding leaders in Chad
Readler and Jody Hunt. It would be an honor for me to follow in
their footsteps, if I'm confirmed to lead the Civil Division.
Most people are familiar with the Civil Division because of
the important work it does defending Federal policies in the
lower courts. But it does so much more.
The Civil Division also uses the False Claims Act and other
enforcement authorities to identify waste, fraud, and abuse in
Federal programs. It also does important work protecting
consumers from elder abuse, illegal drugs, and fraud schemes.
I look forward to doing this important work of the Civil
Division, if I'm confirmed. Thank you for considering my
nomination. I look forward to answering your questions today.
Chairman Grassley. Very short, thank you.
[Laughter.]
Chairman Grassley. Mr. Davis.
STATEMENT OF PATRICK DAVID DAVIS, NOMINEE
TO SERVE AS ASSISTANT ATTORNEY GENERAL,
OFFICE OF LEGISLATIVE AFFAIRS
Mr. Davis. Thank you, Chairman Grassley, Ranking Member
Durbin, and Members of the Committee for holding this hearing
to consider our nominations. Thank you, as well, Chairman
Grassley, for your kind introduction. I also want to thank
President Trump for nominating me. It was an honor to serve as
an appointee in his first term, and I'm eager to contribute to
his second.
I'm lucky to have my family here supporting me, and I'd
like to introduce them. First, my wife, Catherine, who is a
judge on the Court of Federal Claims. A little over 5 years
ago, she sat here for her own confirmation hearing before the
Committee. Next is my daughter, Evelyn, who's in the second
grade, and my son Henry, who's in the fifth.
My parents, Dave and Pam Davis, have flown in from Nebraska
to be here, and my in-laws, Todd and Meg Mason, have driven
down from Pennsylvania to be with us today, too. I'm truly
blessed to have such a wonderful family, and I'm profoundly
thankful for their love and support.
Having spent years as an oversight attorney for Chairman
Grassley, it's humbling to be in this hearing room once again
this time as a nominee. The lessons I learned during those
years, along with ones from my prior times in the Justice
Department and throughout my career, have helped prepare me to
lead the Office of Legislative Affairs, if confirmed.
Under the Justice Department's regulations, the Assistant
Attorney General for the Office of Legislative Affairs is
entrusted with the duty of maintaining liaison between the
Department and Congress, reviewing, coordinating, and
submitting departmental legislative reports, and coordinating
the preparation and submission of proposed departmental
legislation among other responsibilities. I believe my
professional experience lends itself well to these tasks, and
I've seen many related issues from both sides.
I have been a career DOJ line attorney and a political
appointee in DOJ's management. I've been a Judiciary Committee
staffer engaged in oversight of the Department, and I've also
been on the receiving end of congressional oversight.
On both this Committee and the House Intelligence
Committee, I've examined numerous legislative reports submitted
by the Department, and at the Department in the first Trump
administration. I signed off on submitting many such reports.
I've also conducted congressional oversight from both the
Majority and the Minority, and seen those differences, as well.
All of this is to say, I've worked extensively in both Congress
and the Department of Justice, and I have a deep respect for
their respective roles in our system of Government.
If confirmed, I would be honored to be given the
responsibility to maintain and hopefully strengthen the working
relationship between the two.
To that end, I look forward to the opportunity to engage
with the Committee, to advance important legislation to address
our Nation's ongoing challenges, and to benefit the American
people. I'm also acutely aware of the importance of the
Department being responsive to oversight inquiries from the
Committee, both from the Majority and the Minority.
If confirmed, I'm committed to being transparent to the
fullest extent consistent with the constitutional and statutory
obligations of the Department. Where the Department appears to
have been deficient in its oversight responses, I will seek to
review the policies, procedures, and decisions that have caused
the issues, consult with the relevant officials within the
Department, and pursue appropriate corrections.
When there are conflicts between the Department and
Congress, the courts have recognized that each has an implicit
constitutional mandate to seek optimal accommodation through a
realistic evaluation of the needs of the conflicting branches
in the particular situation, and to work, not in a purely
adversarial manner, but instead with a spirit of dynamic
compromise to promote a resolution.
I believe my experience in both branches will help me be an
honest facilitator of that compromise process. As the Chairman
has often said, sunlight is the best disinfectant. I hope to
help let the light in.
Chairman Grassley, Ranking Member Durbin, and Members of
the Committee, I've been privileged to spend nearly all my
professional life in Government service and I hope you'll see
fit to confirm me for this next role to continue serving the
American people this time as an Assistant Attorney General.
Thank you for your time and your consideration.
Chairman Grassley. Thank you, Mr. Davis. Mr. Eisenberg.
STATEMENT OF JOHN ANDREW EISENBERG, NOMINEE
TO SERVE AS ASSISTANT ATTORNEY GENERAL,
NATIONAL SECURITY DIVISION
Mr. Eisenberg. I would like to begin by thanking you,
Chairman Grassley, and you, Ranking Member Durbin, for holding
this hearing. I'd also like to thank Senator Graham, who's now
invisible, unfortunately, for his gracious introduction,
especially what since my family was here. I would also like to
thank President Trump for the honor of this nomination.
I have some of my family here today and I'd like to
introduce them. I'm so fortunate to have the love of my life
and my best friend here, my wife Catherine. Where'd you go? Hi.
Somehow, she manages to have a full-time job and take care of
everyone else in the family as well. It's no exaggeration to
say I would not be here without her. Her support and
encouragement throughout most of my adult life, and during the
hardest times, has made all the good things possible and all
the rest livable.
My wife is joined by my son, Paul, and my daughter, Sarah.
My youngest daughter, Evie, can't be with us today. She has
something called 22q. It's a microdeletion on chromosome 22,
which causes developmental delays, among a lot of other things.
Evie is an inspiration to everyone who knows her, though. She
doesn't let her disabilities get in the way. And she greets
just about every day with delight. Paul and Sarah are not bad,
either.
[Laughter.]
Mr. Eisenberg. Catherine, Paul, Sarah, and Evie are the
joys of my life. Without them, life itself would be
unimaginable to me. I learned the importance of family from my
mother, who at all of 5 feet tall, was the most powerful person
I had ever met in my life. And I think that still holds. No one
wanted to mess with Rhoda. Because of her, my sister, Nancy,
and my brother, Ethan, and I couldn't be closer. We talk
virtually every day. We try to see each other as much as we
can.
While my mother passed away more than a decade ago, I'm
fortunate to have both a father and a stepfather who are very
supportive of me. I also know, have a very small number of
friends who I count as family. And they know who they are, and
I thank them for their support.
I would also like to say something about the colleagues,
too many to name here, I have had the privilege of working
alongside in my many years in Government service, and during my
private practice times. I'm truly blessed to have worked with
so many who are the embodiment of dedication, blazing
intelligence, and integrity. Serving with each of them has been
an honor, and I am grateful just to know these people.
National security is the thread that runs through my
professional life. I was in Alexandria on September 11th, 2001,
when terrorists attacked our Nation, resulting in the deaths of
some 3000 people, in coordinated attacks on the World Trade
Center and the Pentagon.
I think it's hard for people who weren't adults in 2001 to
understand the effect these attacks had on many of us. It's
easy to forget the follow-on attacks were thought to be very
likely, and at times imminent. Indeed, our success in fighting
other attacks of that magnitude, led many to wonder if the
threat was overblown.
But for me, I will never forget that day. I heard the
explosion coming from a commercial airliner colliding with the
Pentagon. I saw the smoke rising from that building.
My wife couldn't come home from her office in Washington
for hours because the necessary Metro lines went through the
Pentagon--and the Pentagon was still on fire.
I saw F-16s trailing commercial airliners, and even private
aircraft. I suppose escorting them away from anything that they
considered a target. But my country really had become a
battlefield.
In my past Government jobs, I have focused on national
security. The events of September 11th instilled in me the need
to be part of a response to terrorism. My more recent
Government service has shown me the importance of protecting
the Nation from myriad other threats.
I am deeply committed to the rule of law and the
Constitution. But I also believe that the Government has a
solemn obligation to do what it can within those limits, to
protect the Nation and its people.
I was in the Department of Justice when it stood up the
National Security Division, and I was part of a team that
helped propose and implement necessary changes to bring NSD
into the world.
It would be a great honor to lead that Division and the
dedicated public servants who go to work every day in NSD, and
who do so because they share the vision of which I spoke, that
of protecting the Nation.
To everyone in NSD, I look forward to working together,
should I be confirmed, to protect this great Nation and its
people from the range of national security threats facing them.
I look forward to your answering your questions.
Chairman Grassley. Thank you, all, for your statements.
I'm going to start with Mr. Eisenberg, and as he knows and
everybody on this Committee knows, protecting whistleblowers is
very important to me.
I want to ask about a 2022 Department of Defense IG report
claiming that you retaliated against Eugene Vindman, for
reporting President Trump's 2019 call with President Zelensky.
I have serious concerns about the political motivations
underlying the whole issue, and I have questions about the
report itself. But I want to hear from you directly. How do you
respond to the charge that you retaliated against Mr. Vindman?
Mr. Eisenberg. Thank you, Mr. Chairman, for that question.
First, I wholeheartedly deny the allegations. I'm just not that
kind of a person. I would never let anything other than the
facts of someone's performing, enter into an evaluation. If I
had done so, I would not be here seeking this office.
If--I'll let you know one other thing, at the beginning. I
was in the White House at the time. All of these events
happened within that confine, and so virtually everything is
subject to Executive privilege. When the Office of the
Inspector General called my lawyer to say that they wanted to
interview me, my attorney advised me that we would need the
permission of both the then current Biden administration and
the former Trump administration. That's because they were the
holders of the privilege, of that Executive privilege.
My attorneys called them and sought that permission, but we
didn't get permission until after the report, which sort of
came out of the blue to us. We didn't get that permission until
after that report dropped.
Consequently, the Office of the Inspector General was
wholly without anybody telling that side of the story and I did
not. And none of the other people that had allegations against
them in that report were able to sit for an interview.
Now that stuff, that material is, in general, subject to
Executive privilege, but I feel like I could give a few
examples of why my evaluation of Mr. Vindman changed just based
on what's in the IG report, which is now public.
As an initial matter, it's clear that I told Mr. Vindman at
some point, that in order to go to meetings over a certain
level or about certain topics, he needed to get permission from
either me or my deputy.
But then we find out that Mr. Vindman would add himself to
meetings, which means he was trying to get into that meeting.
Even if I had made no determination or actually a determination
that he shouldn't be there. Meetings like this aren't like
standard meetings within a company trying to figure out how
much product to make this year. Those meetings have some of the
most sensitive information that the United States Government
has, and the deliberations in those meetings can often be
extraordinarily sensitive in and of itself.
So, you only send somebody to a meeting if they have
something to add to that meeting. Otherwise, you're exposing
someone to classified information despite the fact that there's
no reason for it. And we're not supposed to do that.
We even found out, subsequently, that, that Mr. Vindman
went to a meeting after I had told him expressly not to go to
that meeting. At another time, we found out that Mr. Vindman
was seeking reimbursement for his brother's travel expenses to
Ukraine. Both my deputy and I told Mr. Vindman that he couldn't
do that, that there was an obvious conflict of interest.
Nevertheless, we heard that Mr. Vindman continued to do that.
Relatedly, we heard that--and this is in the IG report as
well, we heard that Mr. Vindman--we heard a particular witness
reported that Mr. Vindman turned red in the face when he met,
you know, some resistance to getting money on behalf of his
brother. I wouldn't tolerate that in my office if someone goes
and tries to intimidate, yells, or anything. It's critically
important that, especially lawyers in the NSC, act like, like
lawyers. That's not everything by any stretch. But it's the
stuff I can glean from the public report.
Chairman Grassley. Mr. Shumate, I've got an opening
statement, I'm going to just quote Justice Elena Kagan on
nationwide injunctions, quote, ``It just can't be right that
one history judge can stop nationwide policy in its tracks and
leave it stopped for years it takes to go through the normal
process,'' end quote. What is your perspective on the use of
nationwide injunctions? And is there a role for Congress to
play in ending the practice?
Mr. Shumate. Thank you, Mr. Chairman for that question. I
agree with that sentiment. We've seen an unprecedented number
of nationwide or universal injunctions just in the first 2
months of the first--of the Trump administration. The
Department's position has been consistent across
administrations that district--single district court judges do
not have the power to issue nationwide or universal relief.
Our position flows from Article III of the Constitution,
which limits courts to deciding the case or controversy before
them, and courts are supposed to apply doctrines, like standing
and reviewability and scope of relief, to award relief to the
party before them and redress that injury, not go beyond the
parties. But we've seen district court judges grant relief far
beyond the parties to those cases, to enjoin the executive
branch nationwide or universally.
And in terms of whether there's a role for Congress to
play, yes, Senator, the Constitution creates one Supreme Court
but vests in Congress the authority to ordain and establish the
lower courts.
And over time, Congress has certainly created courts,
eliminated courts, created jurisdiction, limited jurisdiction,
and created special review procedures for review of Agency
action, whether it's three-judge courts or direct review in the
courts of appeals. So certainly, there is a role for Congress
to play, Senator.
Chairman Grassley. Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman. The Justice
Department is currently defending the Trump administration in a
number of lawsuits, challenging Executive actions taken by the
President and Officials of the administration. Federal judges,
both Republican and Democratic appointees, have enjoined some
of these actions holding they're illegal or unconstitutional.
Alarmingly, President Trump, his allies, and even some
nominees before the Committee, have responded by questioning
whether the executive branch must follow court orders.
If confirmed, the three of you will hold key positions at
the Justice Department, and you will take an oath to uphold and
defend the Constitution.
So, I'm going to ask a question which could merit a yes-or-
no answer, and I hope it will. Do you believe--I'll ask each of
you, do you believe a litigant, including the executive branch
or President, can lawfully defy a court order? Mr. Shumate. You
want to turn that----
Mr. Shumate. Thank you for the question. I will always
advise a client, whether in private practice or in Government,
to comply with court orders. And if our client disagrees with
the court order, we can appeal, seek a stay. And I think that's
exactly what I've heard the President say, comply with court
orders and appeal if disagree with them.
Senator Durbin. Mr. Davis?
Mr. Davis. Thank you, Mr. Ranking Member Durbin. Yes, I
would say parties to litigation should always follow lawful
orders that bind them.
Senator Durbin. Mr. Eisenberg?
Mr. Eisenberg. I agree with both of my colleagues.
Senator Durbin. Thank you.
Mr. Eisenberg, earlier this week, we learned about a
shocking security breach in which the Defense Secretary Hegseth
and other Cabinet Officials, discussed highly sensitive
military plans over a commercial messaging app known as Signal.
Classified and otherwise highly sensitive national security
information must be handled in accordance with strict security
protocol, including the use of secure facilities and
communication channel.
Willful or negligent disclosure of mishandling of such
information is a criminal violation of the Espionage Act. Do
you agree that the Justice Department must thoroughly and
impartially investigate this breach? And if criminal violations
have occurred, that the Department must fairly and impartially
prosecute those responsible?
Mr. Eisenberg. I agree that the Department should take
whatever appropriate action there is. I don't know enough about
what actually happened to say what that action would be.
Senator Durbin. I'm asking whether you believe it should be
investigated by the Justice Department.
Mr. Eisenberg. In my view, it depends on the facts. Like,
if the facts are completely different than has been reported--I
just--I don't know what the facts actually are and I wouldn't
want to opine on that until I knew what they were.
Senator Durbin. Mr. Shumate, last year you participated in
a Federalist Society panel discussion about the President's
ability to remove heads of independent agencies. Do you recall
that?
Mr. Shumate. Yes, I do, Senator.
Senator Durbin. During that discussion, you argued that,
quote, ``Nearly all modern independent agencies are
unconstitutional because of protections dictating that Agency
heads can only be removed for cause.'' Do you remember that
position?
Mr. Shumate. Yes, Senator.
Senator Durbin. You appear to suggest that a host of
independent agencies should be subject to the whims of the
White House, despite Congress' constitutional authority to
create these bipartisan independent commissions. So, do you
stand by your argument that removal protections render
independent agencies unconstitutional?
Mr. Shumate. Thank you for the question, Senator. As I
recall, I was appearing as a lawyer at a law firm who currently
had a case before the courts, where I was taking a position
arguing that removal protections for a certain Agency were
unconstitutional. And I was appearing advocating for the courts
to rule in my favor in that case and advocating for my client's
position.
Now in my role at the Department of Justice I represent the
interest of the United States. There is pending litigation
regarding removal protections and whether those restrictions
are constitutional, so I wouldn't want to go beyond what the
Department has already said in those cases, Senator.
Senator Durbin. The view you expressed last year directly
contradicts the Supreme Court's decision, in Humphrey's
Executor, a 90-year-old precedent holding that removal
protections for independent Agency heads are constitutional.
In February, the Trump administration informed me that it
will seek to have this precedent overturned. Did you
participate in any conversations with any Justice Department or
White House Official about this plan to overturn Humphrey's
Executor?
Mr. Shumate. Senator, in my role as the Acting Head of the
Civil Division, I had many conversations with many folks within
Government about many topics.
But I don't think it'd be appropriate for me to discuss who
I spoke with or what advice I gave on any particular matter to
protect the deliberative process, and to encourage individuals
across the Government to reach out to the Civil Division and
seek our advice on particular matters, without fear that those
conversations will be disclosed publicly.
Senator Durbin. But I didn't ask you that. I didn't ask you
who you spoke with or what you said. I asked if you
participated in conversations about this case being overturned?
Mr. Shumate. Senator, again, I don't think it'd be
appropriate for me to disclose what matters I advised on at the
Department. I advise on many matters. I want to encourage folks
throughout the Government to reach out to the Civil Division to
solicit our opinions, without fear that those conversations
will be disclosed.
Senator Durbin. Mr. Chairman, may I ask one other question?
Chairman Glassley. Yes.
Senator Durbin. Mr. Chairman, I'd like to ask Mr. Shumate,
last night, the President was asked as to whether or not the
rioters on January 6th should be compensated.
That's a matter that would fall in the jurisdiction, I
believe, of your responsibility in the Civil Section. Do you
think the January 6th rioters should be compensated?
Mr. Shumate. Senator, I'm not familiar with those comments
that the President may or may not have made last night. We have
many pending cases in the Civil Division, including tort suits.
It wouldn't be appropriate for me to commit to any particular
resolution of any of those cases without talking to other folks
within the Department.
Senator Durbin. Well, I come down on the side of the law
enforcement officials who keep you and me safe--and your family
as well at this moment, who were attacked by these rioters. And
I do not believe they're entitled to any compensation for their
action. Thank you, Mr. Chairman.
Chairman Glassley. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Thanks to the three
of you for being here today and free willingness to serve.
Mr. Eisenberg, I'd like to start with you, if I could.
During her confirmation hearing, Attorney General Bondi and I
had a conversation about FISA Section 702, and about the use of
what I sometimes refer to, for lack of a better word, as de
facto warrantless backdoor searches--meaning searches of U.S.
persons through a U.S. person identifier, known to be a U.S.
person identifier, to search the databases containing
incidentally collected content communications involving U.S.
persons, U.S. citizens and, and others here at the United
States, lawful permanent residence, and so forth.
And I asked Attorney General Bondi, specifically, whether
she would agree with me that these defacto warrantless backdoor
searches are concerning, in that context. She responded in the
affirmative with the word yes.
That leads me to my question, would you agree that these
backdoor searches of incidentally collected communications
involving American citizens are concerning?
Mr. Eisenberg. Thanks for the question, Senator Lee. I
certainly agree that it does raise issues that, you know, if
you search a database, a substantially large database. I don't,
at this point, however, know what protections are in place. I'm
not currently in NSD.
So, if I were confirmed, I would talk to the experts in the
NSD about what exactly they do, and I would then talk to the
Attorney General and help come up, you know, with perhaps
different procedures, if those are warranted.
Senator Lee. I appreciate that. And I would add here that
for the entirety of the 14 years that I've been a United States
Senator, the whole time I've served on this Committee, I, and
others, including people on both sides of the aisle, including
Senator Durbin, over the years, we've raised concerns with
this, on each occasion.
We've had officials from the FBI tell us, don't worry,
we've got procedures in place. You don't need to worry about
additional legislation. We've got it covered.
And in each instance when they come back, they usually tell
us, okay, yes, we discovered there have been some abuses. But
now we've really got it covered.
The bottom line is, I do believe Congress needs to act
here. I think we needed additional protections because those
internal protections haven't worked because we're trying to ram
a giant square peg into a round hole. It doesn't work. In my
view, it is not compatible with a letter or the spirit of the
Fourth Amendment to allow those sorts of things.
Now, Mr. Eisenberg, you've spent much of your career in
national security law. With that, you've got vast experience
with the FISA Court and the FISA Court of Review. What reforms,
if any, do you think, perhaps, ought to be made to the FISA
Court or the FISA process?
Mr. Eisenberg. Thanks for the question, Senator. I think
this is something that I need to study as soon as I get into
NSD, if in fact I'm confirmed.
In my view, it has to be possible to do better in order to
at least assure the American people that the sorts of privacy
protections that are in place are actually working. But as to
the actual details, I think I need to get in there first if I'm
confirmed.
Senator Lee. Gotcha. Mr. Shumate, let's turn to you. For a
long time, I've been troubled with Congress' chronic delegation
of the lawmaking power. As you know, Article I, Section 1,
makes Congress the sole sovereign lawmaking authority within
the Federal Government. Article I, Section 7, makes that doubly
clear by saying you cannot make a Federal law without both
Houses of Congress passing the same legislation--bicameral
passage, followed by presentment to the President for signature
veto or acquiescence.
Congress has deviated from that, and the courts have been
unwilling to enforce that part of Article I, Section 7, for
reasons that escaped me, while acknowledging that the non-
delegation principle exists, they just refuse to enforce it.
Now, in your Senate Judiciary Questionnaire, you listed a
case that you worked on called Allstates Refractory Contractors
v. Su. In that--in that case, you challenged the
constitutionality of the OSHA Statute.
What can you tell us about your involvement in that case,
and what your involvement in that case sort of taught you, or
what you gleaned from that, as far as Congress' ability to
delegate its lawmaking power?
Mr. Shumate. Thank you for the question, Senator. Yes. So
that case reinforced for me the importance of Article I, the
vesting of legislative power in the Congress.
And in that case, we were representing a client, Allstate,
which is a general contractor in Toledo, Ohio, that was
challenging OSHA Statute, which under the non-delegation
doctrine, which is a long-standing doctrine in Supreme Court
precedent that says that Congress can't delegate its
legislative power to the executive branch. And under the OSHA
Statute, Congress has allowed OSHA to promulgate numerous
safety regulations that impacted my client.
And so, in that case, we were challenging the statute on
its face as a violation of the non-delegation doctrine. We
thought we had pretty good arguments, we went up to the sixth
circuit. The sixth circuit upheld the statute in a 2-to-1
decision, and the Supreme Court denied cert, in that case. So,
it reinforced for me, Senator, the importance of the structural
separation of powers, and that each branch stay within their
proper role.
Senator Lee. Indeed, I see my time's expired. And I'll note
as you say, that this is not merely a hypothetical problem. A
hundred thousand pages of new regulatory text issued last year.
By some estimates those hundred thousand pages of new
regulatory texts put in place entirely by unelected
unaccountable bureaucrats, costing the American economy $1.5
trillion annually. Think about that. That's a problem. Thank
you, Mr. Chairman.
Chairman Glassley. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. As part of my
responsibility to determine the fitness of all nominees who
come before any of my Committees, I ask the following two
initial questions, and if we can start with Mr. Shumate and 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. Shumate. No.
Mr. Davis. No, Senator.
Senator Hirono. Mr. Eisenberg?
Mr. Eisenberg. No, Senator.
Senator Hirono. Have you ever faced discipline or entered
into a settlement relating to this kind of conduct?
Mr. Shumate. No, Senator.
Mr. Davis. No, Senator.
Mr. Eisenberg. No, Senator.
Senator Hirono. This is for Mr. Eisenberg. There have been
calls, including from the authors of Project 2025, which I
think is generally seen as a blueprint for this administration.
But Project 2025 calls for the revival of the National
Security Division of DOJ to revive the so-called China
Initiative. If confirmed as head of the National Security
Division, do you plan on reviving the China Initiative? Yes or
no?
Mr. Eisenberg. I plan on looking at whether something like
that should be stood up again. But I don't have any concrete
plans about that.
Senator Hirono. Do you have any concerns about bringing
back that Initiative? Do you have any awareness of what that
Initiative led to?
[Voice heard off microphone.] I'm sorry.
Senator Hirono. In terms of the litigation that arose from
the China Initiative during the first Trump administration?
Just tell me yes or no, if you have an awareness.
Mr. Eisenberg. I did hear of some of it. Yes.
Senator Hirono. Okay. Let me just say that the program was
supposedly about countering Chinese government espionage and
intellectual property theft. But it drifted far from that
purpose.
Instead, it focused largely on university professors, most
of them of Chinese heritage, who had alleged paperwork errors
in grant applications in the Department of Justice, which
usually has a really great track record and convicting the
defendants, many of whom plead guilty.
But in the case of the China Initiative, the conviction
rate was very low, practically non-existent. So, for the dozens
of cases against basically Chinese professors that the DOJ
brought, most of them were tossed out for lack of evidence. And
we know that the China Initiative was misguided, a waste of
resources, and seemingly based more on the ethnicity of
defendants--whose lives were in many ways of just destroyed by
DOJ going after them, than on the crimes they supposedly
committed.
So, I would say that if you're going to look into
reinitiating the China Initiative, I would look at the history
of this Initiative and do not go there.
For Mr. Shumate, you defended President Trump's birthright
citizenship order as though by waiving an Executive order he
could get rid of the provisions of the Fourteenth Amendment.
You defended that order to get rid of birthright
citizenship and the judge that decided the case, called the
argument that this order that Trump made ``blatantly
unconstitutional.'' And the judge had difficulty understanding
how any lawyer could make the argument that you were making.
And three courts of appeals have refused DOJ's request to
stay. So there are some pending TROs, that the administration
then went to the Supreme Court.
And the Supreme Court has not weighed in yet, and set a
leisurely briefing schedule suggesting that the Supreme Court
doesn't consider the Government's defense of the order to be
worthy of quick consideration.
Which makes me wonder whether you are prepared to argue
before these courts, what one court said blatantly
unconstitutional order. So, Mr. Shumate, is that what you're
going to keep doing?
Mr. Shumate. Senator, thank you for the question. Since
that first hearing that Senator Durbin referenced earlier
today, the Department has filed many briefs explaining its view
of the Fourteenth Amendment and the legality of the President's
birthright order. Because it's pending litigation, it wouldn't
be appropriate for me to discuss the merits of the litigation.
Senator Hirono. I think--you know what? I have to say, Mr.
Shumate, that this is one order that was--that there's just a
lot of precedent for birthright citizenship. And for you all to
spend your time and resources going after this as a way to make
a political point, basically, is not the way that I would
expect the Justice Department to comport itself. Thank you, Mr.
Chairman.
Chairman Grassley. Senator Kennedy.
Senator Kennedy. Mr. Shumate, what's a universal
injunction?
Mr. Shumate. Senator, a universal injunction is what we
call an order from a court enjoining the Government in a way
that goes beyond the parties to the case, but applies
nationwide, or in some cases universally, to enjoin the
Government.
Senator Kennedy. Is it sometimes referred to as a
nationwide injunction?
Mr. Shumate. Yes, it is, Senator.
Senator Kennedy. Okay. What's the statutory basis for a
Federal judge issuing an order that affects people, other than
the parties before the court?
Mr. Shumate. I'm not aware of a statutory basis, Senator.
Senator Kennedy. There is no statutory basis. Is there?
Mr. Shumate. No, Senator.
Senator Kennedy. What's the United States Supreme Court
opinion which interprets the Constitution in a way that allows
a Federal district court judge to do this? Can you name me that
case?
Mr. Shumate. I'm not aware of one, Senator.
Senator Kennedy. There isn't one. Is there?
Mr. Shumate. I'm not aware of one, Senator.
Senator Kennedy. Now, explain to me how this works. You
have a plaintiff and you have a defendant. And the plaintiff
files a lawsuit and goes in front of a Federal judge. A Federal
judge has certain jurisdiction in personam and subject matter
over the parties, the people, the plaintiff, and the defendant.
They're the only two people in court. How can a judge, a
Federal judge, issue an order that affects everybody else,
other than those in front of him or her? How is that possible?
Mr. Shumate. It shouldn't be possible, Senator. But
district courts do it all the time. I think on the theory that
the courts need to enjoin a Federal policy from going into
effect, and they often will enjoin it as nationwide, so all
non-parties are protected by that injunction.
Senator Kennedy. I thought that if you wanted to affect
parties who aren't in court, you had to file a class action.
Mr. Shumate. That's correct here, Senator.
Senator Kennedy. So why don't the Federal judges, instead
of issuing a universal injunction with no legal basis, tell
Depart--the plaintiff, look, you got to go file a class action
if you want to impact parties who aren't subject to my court.
Mr. Shumate. Senator, the Department of Justice makes that
argument all the time in our briefs. I think in many cases,
class actions would be inappropriate. They wouldn't--the
plaintiffs couldn't satisfy Rule 23 to establish a class.
Senator Kennedy. So, they couldn't?
Mr. Shumate. Correct.
Senator Kennedy. So, they prefer to ask for a universal
injunction?
Mr. Shumate. Yes.
Senator Kennedy. Okay. Does this--does this encourage forum
shopping?
Mr. Shumate. Yes, Senator. Not only did it encourage forum
shopping, but also district shopping and filing multiple
strategic lawsuits to pick, find one judge that will enjoin a
single policy nationwide where, you know, if you have five
lawsuits, one of only one of those five cases needs to be
successful.
Senator Kennedy. And--and--and both--both sides--all sides
have used this as a way to forum shop. Haven't they?
Mr. Shumate. I think plaintiffs, regardless of
administrations, will often file cases in the most favorable
forum. Yes.
Senator Kennedy. Okay. We've established that there's no
basis in statute and no basis in Supreme Court precedent for
universal injunction.
How about a common law? And this universal injunction is
basically an equitable remedy. Did this exist in common law
courts in England, on which our law is based?
Mr. Shumate. I don't believe so, Senator. I think we--the
Government has cited cases from the Supreme Court that says,
you know, courts are really bound by the scope of relief that a
court in equity would've granted back in England before the
founding. And the courts, at that time, would grant relief to
the parties in the case not far beyond the point.
Senator Kennedy. You--a universal injunction as a remedy is
unknown in English common law. Is it not?
Mr. Shumate. I haven't done the research that far back. But
I'm not aware of that.
Senator Kennedy. I have. It's unknown. Wasn't part of
equity.
Only about 28, I'm sorry, only about 27, universal
injunctions were issued in the 20th century. Does that sound
about right?
Mr. Shumate. That sounds about right, Senator.
Senator Kennedy. But 86 of them were issued against
President Trump in his first term. Is that correct?
Mr. Shumate. I don't know the specific number. But they
were a high number.
Senator Kennedy. And so far in President Trump's second
term, 30 universal injunctions have been issued against him.
Have they not?
Mr. Shumate. Senator, I don't have a specific number. But
that sounds about right.
Senator Kennedy. Most of--universal injunction has become a
weapon against the Trump administration. Has it not?
Mr. Shumate. Yes.
Senator Kennedy. And tell me again, in my last 10 seconds,
tell me the basis of Article--the basis for universal
injunction in Article III. I read Article III which defines
judicial power. Where does it mention universal injunction?
Mr. Shumate. It does not, Senator. It says courts are to
decide the case or controversy before them, which is based on
the parties to the case.
Senator Kennedy. So, the Congress could act and say, look,
Federal judges, you render a decision to a plaintiff or a
defendant, but you can't impact people outside of your
courtroom other than through a class action. That's why God
created class actions. Isn't it?
Mr. Shumate. Yes, Senator.
Senator Kennedy. Thank you, Mr. Chairman.
Chairman Grassley. You know how important oversight is to
me. And I gave Bondi a binder of 144 oversight letters that I
sent during the Biden Justice Department. And I know that's a
big job for you to fulfill that.
But I'd like to give priority for your committing to
providing responsive document requests as opposed to just
answering any particular letter right now. Because a few of
them asked for that. And for Mr. Shumate----
Senator Kennedy. Mr. Chairman, I have a question, too, for
Mr. Davis if we're stalling for time.
[Laughter.]
Chairman Grassley. Okay. The False Claims Act is a very
important priority for me because in 1986, I spearheaded
legislation to substantially strengthen its civil provisions.
That's the qui tam provisions in it. It has since brought $78
billion back into the Treasury--I think $3.9, just last year.
More recently, I introduced a False Claims Amendment Act, a
bipartisan bill that would fix loopholes that allow fraudsters
to avoid accountability. If you're confirmed, will you pledge
to vigorously enforce the False Claims Act and devote adequate
resources to investigating and prosecuting False Claims cases?
Mr. Shumate. Yes, Senator. Absolutely. The False Claims Act
is an essential tool that the Department uses to root out
fraud, waste, and abuse. Qui tam relators are an essential
component of that.
As you know, the Department generates billions of dollars
in revenue every year for the Treasury, through the False
Claims Act. If I'm confirmed, I will aggressively enforce the
False Claims Act and work with the outstanding folks in the
Fraud Section.
Chairman Grassley. I know after 9 years of one case being
filed and it went into discovery, somebody in the previous
administration just stopped it. We can't let things like that
happen. If you're going for 9 years and going into discovery,
you can't let some political person step in and stop the claim.
Just is one example of some things that have been wrong.
Senator Schiff.
Senator Schiff. Thank you, Mr. Chairman. Mr. Eisenberg, you
served during the first administration as a NSC legal advisor.
In that capacity, you must have participated in dozens, if not
hundreds of principles meetings organized by the National
Security Advisor. Did you conduct any of those meetings by text
chat that involved military strike plans?
Mr. Eisenberg. No. I don't believe so.
Senator Schiff. So, the entire first 4 years, the Trump
administration, you never had a text chat conversation about
plans to strike targets using an unencrypted or using a
commercial app?
Mr. Eisenberg. Well, I'm not aware of any, such as
considered, anyhow.
Senator Schiff. And you didn't do that because that
would've been a terrible national security breach of protocol.
Would it not?
Mr. Eisenberg. I would have to know a lot more to know
whether that would be a breach.
Senator Schiff. Would you really need to know more than a
conversation about military targets, the time of the attack,
the location of the targets, the ordinance being used?
Mr. Eisenberg. Sure. You'd want to know whether the device
is up to a certain level so that it could, I mean, you might
make one that that can----
Senator Schiff. Okay. We're talking about a commercial app
like Signal. Would it ever be appropriate to discuss imminent
plans to strike military targets on a commercial app?
Mr. Eisenberg. I still think it's very difficult to answer
that question in the abstract. I mean, I can think of
circumstances in which you could, sure.
Senator Schiff. Oh, well, give us a circumstance in which
you can talk about an imminent military attack, unknown to the
public, where it would be appropriate to do so on a commercial
app.
Mr. Eisenberg. Okay. Something absolutely urgent happens
and it needs to go right now. And your normal communication
systems don't work. I mean, there's an example where you would
have to--you may have to do something like that.
Senator Schiff. And where you have access to classified
facilities, it would be completely inappropriate. Wouldn't it?
Mr. Eisenberg. I still need to know more.
Senator Schiff. Really? Wow. And you want to lead the
National Security Department, Department at the DOJ and you
would need to know more?
Mr. Eisenberg. Yes, Senator. I'd like to lead the, the NSD
and I think I'm exceptionally qualified to do so.
Senator Schiff. And do you--do you fail to believe the NSA
and the DOD when they say that the use of commercial apps like
Signal is a security threat and inappropriate for confidential
or sensitive data?
Mr. Eisenberg. I haven't heard about either of those
entities, Senator.
Senator Schiff. So, you don't have any idea what the view
of the Intelligence Community is about the use of commercial
apps to conduct Government business involving classified or
sensitive national security information. You have no idea what
the position is?
Mr. Eisenberg. No, I'm sure the position is that, in
general, that should never happen.
Senator Schiff. Okay. So, what happened in this Signal chat
should never have happened. Do you agree with that?
Mr. Eisenberg. No, as I said before, I would need to know
more.
Senator Schiff. Have you read the Signal chat?
Mr. Eisenberg. I have not yet.
Senator Schiff. You have not read it. Are you desiring to
be willfully blind to what just happened?
Mr. Eisenberg. No. I was trying to prepare for this
hearing, among other things.
Senator Schiff. And you didn't anticipate you'd be asked
about this? Or is it because you anticipated you would be asked
about this--you didn't want to inform yourself of this
incredible breach of national security?
Mr. Eisenberg. There are millions of things going on in the
world at any given time. So I just didn't happen to learn about
this one.
Senator Schiff. Oh, I see. There are millions of things
going on. Yes, I'm sure there are millions of things going on
in the world.
But this happens to be probably the biggest national
security story of the month which included a lot of other
national security stories--including a war in the Middle East
and including capitulation to Putin and Russia. But you just
happen to neglect to read this one. Is that what we are led to
believe?
Mr. Eisenberg. I just happen not to read it, that's all.
Senator Schiff. Well, let me ask you this. If you're using
a commercial app to discuss the identity of targets, their
locations, and that information were to become public, it could
compromise those operations. Couldn't it?
Mr. Eisenberg. It depends on what the operation is and
where in the operation----
Senator Schiff. Well, let's say an operation to strike
targets in Yemen Houthis targets that identify, say, a top
missile operative and the location of the girlfriend's
building, those kinds of specific details discussed on a
commercial app could jeopardize that operation if it became
public.
Mr. Eisenberg. Yes.
Senator Schiff. Isn't that true?
Mr. Eisenberg. It depends on the circumstances and well----
Senator Schiff. Well, I just gave you the circumstances,
Mr. Eisenberg. And that's why I'm not going to answer a
hypothetical question.
Senator Schiff. Well, it's not hypothetical. I wish to hell
it were hypothetical. This just happened. This was shared with
a journalist on a commercial app.
You need more information than that? Well, how about
discussing denigrating our European Allies on a commercial app?
Could that have diplomatic fallout?
Mr. Eisenberg. I--I don't know of the circumstances.
Senator Schiff. Really? So, the Vice President's
conversations on this app, others joining in and disparaging
Europe, this is completely new information to you? You're
unaware? You can't comment on whether that could interfere with
our relationship with our closest Allies?
Mr. Eisenberg. No, I heard of the incident. I just, at this
point, hadn't had time to look at it closely.
Senator Schiff. Yes.
Mr. Eisenberg. I'm a lawyer, sir, and before I make
decisions and form opinions, I need to look at the facts
carefully.
Senator Schiff. Yes. And you don't hide from the facts, as
a lawyer.
Mr. Eisenberg. Absolutely----
Senator Schiff. And if you want to head the National
Security Division at the Department of Justice, you don't stick
your head in the sand when we've had a serious breach of our
national security so that you don't have to answer
uncomfortable questions.
Mr. Eisenberg. That's not----
Senator Schiff. Mr. Chairman, I yield back.
Chairman Grassley. Senator Schmitt.
Senator Schmitt. Thank you, Mr. Chairman. I do find it
interesting that my Democrat colleagues are so enraged by this
non-story and had nothing to say when we had a President who
literally couldn't put two sentences together for 2 years.
President Autopen was the Commander-in-Chief. No
questions--no questions about his inability to construct
sentences, let alone foreign policy. But here we are with a
fake story.
But this is what happens when you have a party that has
reached--actually not rock bottom yet--not rock bottom yet--but
they got nothing, zero, no issues, no leader, fringe issues
define them.
So, they're going to glom onto the story of the day. And
quite frankly, it's embarrassing for them.
Just like, by the way, these calls to, you know, come out
against violence. The only district court rulings, the only
thing that's been talked about are political solutions.
The only person I remember standing in front of the Supreme
Court calling for a whirlwind on Justice Kavanaugh and other
Supreme Court Justices that were fouled up by assassination
attempts of Supreme Court Justices, that were fouled up by
violent protests outside their homes where they had to move out
of their homes, was Chuck Schumer. And as long as we're
denouncing violence, how about firebombing Tesla dealerships?
This--this anarchic kind of strain runs through the left.
And to my Democrat friends, I feel bad for you because your
party has been captured by a radical element that is pro-Hamas,
that is pro-violence, that is firebombing, you know, Tesla
dealerships because they don't like that Elon Musk has actually
found the grift out and is cutting it out. The NGO's that have
laundered money for Democrat causes for years, it's all coming
to an end and they don't know how to handle it.
So, anyway, as far as sort of some of these rulings, I
would point out that in the most recent case with the
Venezuelan thugs who've now been imprisoned in El Salvador, the
apex of Presidential power is, as Justice Jackson wrote in the
Youngstown Steel case, in his concurrence, is that the apex,
when you have congressional delegation, or core Article II
powers, as Commander-in-Chief.
And the district court in citing the Alien Enemies Act,
where whether wartime or invasion or predatory incursion, the
act--the President is acting within his authority, the district
court has no more authority to tell the President he can't do
that than they can, speaking of national security, directing
troop movements or missile strikes.
So, when we talk about separation of powers, it does go
both ways. It does go both ways. And there's been this
obsession with getting all of you on the record about following
court orders.
The President of the United States has said he will follow
court orders time and time again. But it's this desire to just
stir up something because they have nothing. That's what's
going on here.
I did want to ask, with the time that I left--have left,
Mr. Davis, you have done a lot of great work investigating a
lot of things. The origins of COVID, I'm just curious. So, when
I was Attorney General of Missouri, we actually sued Communist
China for unleashing the COVID pandemic. We received a $24
billion default judgment recently.
But when that--when we filed that lawsuit, it was
interesting, the reaction. You were called a racist if you
implied any way that it leaked out of Wuhan, which was very
obvious to most people.
And now the Intelligence Community, who, for some reason
resisted that conclusion for such a long time, has basically
said that's what happened.
What do you think as you were investigating this, what was
behind that? What was behind this resistance to all the
evidence and the obvious nature of the origins of COVID?
Mr. Davis. Thank you, Senator, for that question, and I
appreciated speaking with you yesterday. That was great.
The report that I authored on the House Intelligence
Committee about the origins of COVID unfortunately is still
classified. So, I can't really get into the specifics of what
it found.
We did do an unclassified summary, which, just given the
nature of the underlying information, was unfortunately not
terribly revelatory.
I would note that when then-President Biden instructed the
Intelligence Community to do a sort of comprehensive review on
the COVID origins, the subsequent report they put out and the
declassified version of it, there were serious flaws with. And
I think those flaws you've seen, you've mentioned that
individual components have changed their public view.
But I do think that until there's more transparency about
what was going on within those elements of the Intelligence
Community, the people won't really know the full story,
unfortunately.
Senator Schmitt. Thank you. Well, it's also interesting
that Fauci played a very significant role in this and maybe
we'll be hearing from him in some Committee hearings sometime
soon, too. Thank you, Mr. Chairman.
Senator Schmitt [presiding]. Okay. So, Mr. Eisenberg, Mr.
Shumate, Mr. Davis, thank you for your testimony today, and to
your family and friends who've made the visit. We thank you as
well. It's a momentous day I know in your lives, and we're
excited about what's to come.
For everyone's information, written questions to Mr.
Eisenberg and Mr. Shumate can be submitted for the record until
April 2nd at 5 p.m. Written questions to Mr. Davis can be
submitted for the record until tomorrow, March 27th, at 5 p.m.
I'll ask the nominees to answer and return the questions to
the Committee as soon as possible so that we can quickly
schedule your confirmation votes.
With that, this hearing is adjourned. Thank you.
[Whereupon, at 11:35 a.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
A P P E N D I X
The following submission is available at:
https://www.govinfo.gov/content/pkg/CHRG-119shrg61839/pdf/CHRG-
119shrg
61839-add1.pdf
Submitted by Ranking Member Durbin:
Alliance for Justice, letter, March 26, 2025..................... 2
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