[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
UNITED STATES DEPARTMENT OF JUSTICE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
APRIL 8, 2014
__________
Serial No. 113-76
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
__________
U.S. GOVERNMENT PRINTING OFFICE
87-497 PDF WASHINGTON : 2014
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
C O N T E N T S
----------
APRIL 8, 2014
Page
OPENING STATEMENTS
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
WITNESS
The Honorable Eric H. Holder, Jr., Attorney General, United
States Department of Justice, Washington, DC
Oral Testimony................................................. 5
Prepared Statement............................................. 8
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary
Letter dated January 23, 2014, to the Honorable Eric H.
Holder, Attorney General of the United States, U.S.
Department of Justice...................................... 24
Letter dated October 15, 2013, to the Honorable Eric H.
Holder, Attorney General of the United States, U.S.
Department of Justice, and the Honorable Jocelyn Samuels,
Acting Assistant Attorney General, Civil Rights Division,
U.S. Department of Justice................................. 28
APPENDIX
Material Submitted for the Hearing Record
Questions for the Record submitted to the Honorable Eric H.
Holder, Jr., Attorney General, United States Department of
Justice, Washington, DC........................................ 82
UNITED STATES DEPARTMENT OF JUSTICE
----------
TUESDAY, APRIL 8, 2014
House of Representatives
Committee on the Judiciary
Washington, DC.
The Committee met, pursuant to call, at 10:04 a.m., in room
2141, Rayburn Office Building, the Honorable Bob Goodlatte
(Chairman of the Committee) presiding.
Present: Representatives Goodlatte, Sensenbrenner, Coble,
Smith of Texas, Chabot, Bachus, Issa, Forbes, King, Franks,
Gohmert, Jordan, Poe, Chaffetz, Marino, Gowdy, Labrador,
Farenthold, Holding, Collins, DeSantis, Smith of Missouri,
Conyers, Nadler, Scott, Lofgren, Jackson Lee, Cohen, Johnson,
Pierluisi, Chu, Deutch, Richmond, DelBene, Garcia, Jeffries,
and Cicilline.
Staff present: (Majority) Shelley Husband, Chief of Staff &
General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief
Counsel; Allison Halataei, Parliamentarian & General Counsel;
Robert Parmiter, Counsel; Caroline Lynch, Counsel; Kelsey
Deterding, Clerk; (Minority) Perry Apelbaum, Staff Director &
Chief Counsel; Danielle Brown, Parliamentarian; and Aaron
Hiller, Counsel.
Mr. Goodlatte. Good morning. The Judiciary Committee will
come to order, and without objection the Chair is authorized to
declare recesses of the Committee at any time.
We welcome everyone to this morning's oversight hearing of
the U.S. Department of Justice, and I will begin by recognizing
myself for an opening statement. Welcome, Attorney General, to
your seventh appearance before the House Judiciary Committee
since your confirmation in 2009. We are happy to have you here
with us today.
Over the last year, we have all witnessed an extraordinary
level of executive overreach by the Obama Administration. Time
after time, this President has pushed the limits on executive
power beyond their constitutional boundaries. He has repeatedly
declared that rather than faithfully executing the laws passed
by the legislative branch, he will ``refuse to take no for an
answer,'' and that ``Where Congress won't act, I will.''
Under my leadership, the House Judiciary Committee has
worked diligently to oppose these broad assertions of executive
power and remind the Administration and the American people
that our Constitution gives Congress the power to make the law
and charges the President with its faithful execution.
Our work continues today because the Department of Justice
has undertaken its own form of overreach in several instances.
This is so despite the fact that legal opinions from the
Justice Department under Presidents Carter, Reagan, George H.W.
Bush, Clinton, and George W. Bush all agree that while the
President does not have a duty to execute laws that he in good
faith determines are unconstitutional, the President may not
refuse to enforce an act of Congress for policy reasons.
Unfortunately, the Department of Justice under Attorney
General Holder has done just that. For example, on October 19,
2009, Attorney General Holder announced that the Justice
Department would stop enforcing the Federal marijuana ban
against persons who comply with State medical marijuana laws.
The Justice Department's decision not to enforce the Controlled
Substances Act in States whose laws violate Federal law is not
a valid exercise of prosecutorial discretion, but a formal
Department-wide policy of selective non-enforcement of an act
of Congress.
On August 12 of this year, the Attorney General directed
all Federal prosecutors to decline to charge the drug quantity
necessary to trigger a mandatory minimum sentence if a
defendant meets certain criteria. The Attorney General's
directive, along with contradicting an act of Congress, puts
his own frontline drug prosecutors in the unenviable position
of either defying their boss or violating their oath of candor
to the court.
Additionally, this Justice Department has continued to play
fast and loose with Federal taxpayer dollars. Every year since
1998, the Justice Department's Inspector General has compiled a
list of the top management and performance challenges facing
the Department, and every year since 1999, including this year,
the issue of grant management has been included.
Rather than learn from its mistakes over that 15-year
period and act to effectively administer its more than 200
grants, the Department has made a number of concerning changes
to some of these programs over the last year. This includes
limiting the universe of grant applicants only to prior grant
recipients under a number of its Violence Against Women
programs. This type of change smacks of cronyism, and it opens
these programs up to potential corruption and malfeasance. It
is also in direct conflict with Congress' intent when it
created competitive grants, not to mention the Department's
stated commitment to promoting new and innovative programs.
Secondly, I am concerned that this Administration has begun
a profound change in how forensic science is studied and how
standards are promulgated without congressional approval or
oversight. The Justice Department has permitted the National
Institute of Standards and Technology, or NIST, to establish
brand new scientific area committees which will replace the
longstanding scientific working groups in forensic science that
have operated for years under the Department of Justice and are
the backbone of forensic science. We have learned that these
new NIST committees are rewriting forensic standards without
input from established SWIG forensics experts contrary to
congressional intent.
Third, last summer, the Department of Justice announced
that it would break from its tradition of having all public
safety officers benefits program claims reviewed by the OJP
General Counsel's Office before an official approval or denial
was made. Instead, the Department has delegated this important
task to a PSOB counsel, who reports to a political appointee.
The PSOB counsel's determination regarding the legality of a
claim can also be overridden by the political head of OJP, and
the Department of Justice has reduced the evidence needed to
establish a claim. These changes will allow payments to be paid
that are not supported by the law, and they highlight the
Department's continued recklessness regarding taxpayer dollars
as well as the continued disregard for the limitations Congress
places on how grant money should be spent.
All of this demonstrates a pattern on the part of the Obama
Administration to ignore or rewrite the very legislation that
places limits on executive branch authority for purely
political purposes. The Justice Department has the
responsibility to provide legal advice, including
constitutional analysis, to the executive branch. I find it
ironic that the Department has chosen on multiple occasions to
act in contravention of the Constitution and congressionally
enacted Federal law. I would be interested in hearing what, if
any, legal guidance the Department, including its Office of
Legal Counsel, has provided to the Administration on these
executive overreaches.
Attorney General Holder, I look forward to hearing your
answers on all of these important topics today as well as on
other significant issues to the Justice Department and the
country.
And it is now my pleasure to recognize the Ranking Member
of the full Committee, the gentleman from Michigan, Mr.
Conyers, for his opening statement.
Mr. Conyers. Thank you, Chairman Goodlatte. Welcome,
Attorney General Holder. In the vast jurisdiction of the
Department of Justice, there are many topics worthy of
discussion today. And I hope that you will get a chance to
accommodate Chairman Goodlatte and the numerous criticisms and
flaws and other things that he raised in his opening statement
because we do want an honest appraisal of this. And I am sure
that you are up to giving us one.
First topics worthy of discussion for me today is your
commitment to enforcing voting rights for all Americans in the
wake of the Shelby County decision. Voter discrimination of all
kinds is alive and well in this country, and it ought to be our
Committee's overwhelming priority to take up House Resolution
3899, the Voting Rights Amendment Act without delay.
Your work in sentencing reform is remarkable. In a country
where nearly half of all Federal inmates are serving time for
drug offenses, the harshest crimes should be reserved for
violent offenders. As you stated before the Sentencing
Commission last month, ``Our focused reliance on incarceration
is not financially sustainable. It comes with human and moral
costs that are impossible to calculate.''
We should note the Department's efforts to engage State and
local agencies, juvenile justice systems, and community leaders
to end the school to prison pipeline and ensure that every
young person has the opportunity to reach his full potential
regardless of the color of his or her skin. And we should
celebrate the Department's commitment to marriage equality as
more and more of this country makes progress in which you have
called one of the defining civil rights challenges of our time.
Mr. Attorney General, your leadership on these and other
issues has been invaluable. Of course throughout your tenure
you have been asked to do all this and more with fewer and
fewer resources. If you can give us any guidance as to the
effect of the draconian Ryan budget proposal on the Department
of Justice, we would like to engage with you on that topic as
well.
I would like to focus the balance of my time on the one
overriding issue of our collective effort to roll back
government surveillance of United States citizens. Much of our
recent debate has focused on how to end the National Security
Agency's bulk collection of telephone records under Section 215
of the USA Patriot Act. Ending that program and correcting the
deeply troubling legal argument at its foundation are of
paramount importance. But the President's proposal and the
proposal advanced by some on the House Intelligence Committee
deals only with Section 215. In other words, they focus on one
program used to access one database collected under one legal
authority.
To me, the problem is far more complicated than that narrow
lens implies, and in his January 17 speech, President Obama
committed to much more. First, the President instructed you,
Mr. Attorney General, to institute reforms that placed
additional restrictions on the government's ability to retain,
search, and use in criminal cases the content of communications
intercepted under Section 702 of the Foreign Intelligence
Surveillance Act.
On March 28 in a letter sent to Senator Wyden, the Director
of National Intelligence, James Clapper, confirmed that the
government mines this data for information about United States
persons. Section 702 implicates content, not metadata, under
any other circumstance. The government would require
individualized suspicion and probable cause to seize these
communications. The FISA amendments were never intended to
authorize back door surveillance of United States persons, and
the Department of Justice should work with this Committee to
correct any impression to the contrary.
The President asked the Attorney General to amend how we
use national security letters so that gag orders will not be
indefinite and will terminate within a fixed time. I view this
modest amendment as a bare minimum change necessary to the NSA
regime in light of what the public now knows about government
surveillance. And yet, this Committee has received no
indication that this reform is under way at the Department of
Justice, and I hope, sir, that we will hear news of this
development in your testimony or soon.
And finally, the President recognized that there is an
inevitable bias within the intelligence community to collect
more information about the world, not less. That bias is
consistent with their mission to maintain national security,
but national security, of course, is not the only value we hold
dear. We must also be vigilant against government overreach and
protect our constitutional rights to privacy and free
association.
In the Congress, this Committee has always been the proper
forum for a discussion about civil rights, especially in the
national security context. In the executive branch, that role
falls to the Department of Justice, and specifically, Mr.
Attorney General, to you. This country would be well served by
your continued leadership on this issue.
In years past, the Department of Justice and the House
Judiciary Committee have worked together to draft, pass, and
implement the Foreign Intelligence Surveillance Act, the USA
Patriot Act, and the FISA Amendments Act. We should renew that
partnership without delay and move the USA Freedom Act through
this Committee with all necessary speed.
I thank you, and I look forward to your testimony, Attorney
General. And I yield back.
Mr. Goodlatte. The Chair thanks the gentleman, and without
objection all other Members' opening statements will be made a
part of the record.
We thank our only witness, the Attorney General, for
joining us today. And, Attorney General, if you would please
rise, we will begin by swearing you in.
[Witness sworn.]
Mr. Goodlatte. Let the record reflect that the Attorney
General responded in the affirmative. Thank you. And we will
begin with our introduction.
On February 3, 2009, General Holder was sworn in as the
82nd Attorney General of the United States. General Holder has
enjoyed a long career in both the public and private sectors.
First joining the Department of Justice through the Attorney
General's Honors Program in 1976, he became one of the
Department's first attorneys to serve in the newly-formed
Public Integrity Section. He went on to serve as a judge of the
Superior Court of the District of Columbia and the U.S.
Attorney for the District of Columbia.
In 1997, General Holder was named by President Clinton to
be the Deputy Attorney General. Prior to becoming Attorney
General, he was a litigation partner at Covington & Burling LLP
here in Washington, D.C. General Holder, a native of New York
City, is a graduate of Columbia University and Columbia Law
School.
Attorney General Holder, we appreciate your presence today
and look forward to your testimony.
TESTIMONY OF THE HONORABLE ERIC H. HOLDER, JR., ATTORNEY
GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, WASHINGTON, DC
Attorney General Holder. Thank you, Mr. Chairman, Ranking
Member Conyers, and also Members of the Committee. I am here
today to speak on behalf of my hardworking colleagues in the
Department offices around the world about our continued
commitment to the cause of justice and the missions that we
share, securing our Nation and protecting the American people.
Now, this is and always will be our top priority, and over the
past year the Department has done important work in this
regard, strengthening our ability to safeguard America's
national security, to disrupt potential terrorist plots, and to
ensure that those who attempt to harm our Nation, its vital
interests, or its people can be held accountable to the fullest
extent of the law.
Last month, the Department achieved a major milestone when
we secured the conviction of Sulaiman Abu Ghaith, the son-in-
law of Osama bin Laden and a senior member of Al-Qaeda, on
terrorism-related charges. This verdict has proven that
proceedings such as these can safely occur in the city I am
proud to call my hometown as in other locations across our
great Nation.
Now, we never doubted the ability of our Article 3 court
system to administer justice swiftly in this case as it has in
hundreds of other cases involving terrorist defendants. And it
would be a good thing for this country finally to put to rest
this political debate that has otherwise questioned the
experience that we have had.
Last week, the Senate Intelligence Committee voted to
declassify key portions of its report into past interrogations
practices. Now, I agree that as much of the report as possible
should be made public, of course allowing for redactions that
are necessary to protect national security. So I was pleased
that the Committee voted to send portions of the report forward
for declassification. Having prohibited these practices upon
taking office, the President believes that bringing this
program into the light will help the American people understand
what happened in the past and help guide us as we move forward
so that no Administration contemplates such a program in the
future.
Beyond our national security work, the Department will
continue to build on the progress we have made in confronting a
range of threats and challenges. The full resources of the
Department and the FBI have been made available to help conduct
a thorough investigation into last week's horrific mass
shooting at Fort Hood. And going forward, my colleagues and I
will do everything possible to achieve justice for our brave
men and women in uniform, and prevent these far too common
tragedies from happening again.
More than ever before, the Department's law enforcement
work today must connect with new and emerging technology,
including currencies such as bitcoin. Virtual currencies can
pose challenges for law enforcement given the appeal that they
have among those seeking to conceal illegal activity, and this
potential must be closely considered. We are working with our
financial regulatory partners to account for this emerging
technology. Those who favor virtual currencies solely for their
ability to help mask drug trafficking or other elicit conduct
should think twice. The Department is committed to innovating
alongside this new technology in order to ensure investigations
are not impeded by any improvements in criminals' ability to
move funds anonymously.
Now, as virtual currency systems develop, it will be
imperative to law enforcement interests that those systems
comply with applicable anti-money laundering statutes and Know
Your Consumer controls.
Across the board, the Department's comprehensive efforts
reflect our commitment to integrity and equal justice in every
case and in every circumstance, and nowhere is this commitment
stronger than in our work to strengthen America's Federal
criminal justice system. Through the Smart on Crime initiative
that I announced last August, my colleagues and I are taking
action on a number of evidence-based reforms, including
modifications to the Department's charging policies with regard
to mandatory minimum sentences for certain non-violent, low
level drug crimes.
Now, this common sense change will ensure that the toughest
penalties are reserved for the most dangerous or violent drug
traffickers, and I am pleased to note that Members of this
Committee have shown tremendous leadership in the effort to
codify this approach into law. I have been proud to join many
of you in supporting the bipartisan Smarter Sentencing Act
introduced by Representatives Scott and Labrador and co-
sponsored by Ranking Member Conyers, which would give judges
more discretion in determining appropriate sentences for people
convicted of certain Federal drug crimes. And I pledge to keep
working with leaders like you and like Senator Rand Paul and
others to address the collateral consequences of certain
convictions, including felony disenfranchisement policies that
permanently deny formerly incarcerated people their right to
vote.
Now, we will never be able to arrest and incarcerate our
way to becoming a safer Nation. That is why we need to be both
tough and smart in our fight against crime and the conditions
and behaviors that breed crime. And this struggle must extend
beyond our fight to combat gun, gang, and drug-fueled violence
to include civil rights violations, and financial, and
healthcare fraud crimes that harm people and endanger the
livelihoods of hardworking Americans from coast to coast.
Last November, the Justice Department secured a major
victory in this struggle when we obtained a $13 billion
settlement with JPMorgan Chase & Company, the largest
settlement with a single entity in American history, to resolve
Federal and State civil claims related to the company's
mortgage securitization process. As part of our ongoing efforts
to hold accountable those whose conduct contributed to the
mortgage crisis, the Department also filed a lawsuit against
the ratings firm S&P. And with the $1.2 billion agreement we
reached with Toyota last month, the largest criminal penalty
ever imposed on an automotive company, we are making good on
our determination to protect consumers and address fraud in all
of its forms.
So moving forward, my colleagues and I will continue build
upon these and other important efforts, and we will keep
working alongside Members of Congress, including Ranking Member
Conyers, Representative Sensenbrenner, and Representative
Lewis, to address the void that has been left by last year's
Supreme Court decision invalidating one of the Voting Rights
Act's core provisions so that we can help protect that most
basic right of American citizenship.
So I want to thank you once again for the chance to discuss
these and other priorities with you today and for your
continued support of the Justice Department's other critical
efforts. I look forward to working closely with you to build
upon these public safety and law enforcement accomplishments
that my colleagues have made possible in recent years. Thank
you very much.
[The prepared statement of Attorney General Holder
follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Goodlatte. Thank you, General Holder. We will begin the
questioning, and I will start with this. The Department of
Justice is charged with providing legal advice to make sure the
President and executive agencies operate within the bounds of
the law and the Constitution. And, of course, it is not just
the Justice Department. It involves advice regarding our
Nation's healthcare laws, education laws, immigration laws,
welfare laws. Doesn't the take care clause not require the
President to enforce the law even if he does not like the law
in question?
Attorney General Holder. Well, the President has a
constitutional responsibility to enforce the laws. That is
clear. The Justice Department has an equal responsibility to
defend statutes that Congress passes unless the determination
is made, and it happens very infrequently, within the Justice
Department that there is no basis to defend a statute.
Such an event happened with regard to the Defense of
Marriage Act and the ability that we had in a unique
circumstance in the 2nd Circuit to make a determination that a
heightened scrutiny standard should apply to the constitutional
determination of that statute. And on that basis, we made the
decision not to defend the statute. The decision was ultimately
upheld by the Supreme Court.
Mr. Goodlatte. I am concerned about some of the decisions
and some of the directives that have been issued by you and
others in the Department of Justice. Is it your view that there
is any limit to the President's prosecutorial discretion?
Attorney General Holder. Well, I mean, the discretion must
always be exercised in a responsible and constitutional way.
There is a vast amount of discretion I think that a President
has, and, more specifically, that an attorney general has, but
that discretion has to be used in appropriate way so that you
are acting consistent with the aims of the statute, but at the
same time, making sure that you are acting in a way that is
consistent with our values, consistent with the Constitution,
and protecting the American people.
Mr. Goodlatte. Could the President conceivably decide that
with regard to a particular law that the discretion is to not
enforce that law at all, even though the law is on the books?
Attorney General Holder. Well, I mean, ``to not enforce at
all,'' that is a categorical statement, and in a hypothetical
circumstance, it is a difficult question to answer. The
determination, as I was referring to before, not to defend the
constitutionality of the Defense of Marriage Act might fall
into the category that you have described, but it is one, as I
said, that was very controversial at the time. We announced it,
but ultimately it was upheld by the Supreme Court.
Mr. Goodlatte. Currently under the modified Section 215
order with regard to foreign intelligence surveillance, the
government is no longer determining whether there is reasonable
articulable suspicion, or what is called RAS. That target
pertains to foreign terrorism. Those determinations are now
being made by the FISC, the Foreign Intelligence Surveillance
Court. How is that structure being implemented under the
modified order, and how is the FISA Court approving the queries
of the data under the modified under?
Attorney General Holder. Well, I think that we are doing so
pursuant to the orders of the President, which I think are
entirely reasonable. It does not have an impact on our ability
to make very good use of that tool to go to the Court, present
the case to be made using the reasonable articulable suspicion
standard, the Court then authorizes the action that we seek. We
now limit the action that we take to two hops as opposed to
three hops, and I think that the way in which we are now
proceeding is, again, consistent with the President's
direction, but also is consistent with our obligation to keep
the American people safe. It does not have a negative impact on
our ability to make use of that tool.
Mr. Goodlatte. And how is the Court, the FISA Court,
approving those queries of the data under this modified order?
Attorney General Holder. Well, the Court is presented with
a request, a statement by the Department that we feel that
reasonable articulable suspicion has been met, and make a
determination about whether they agree or disagree, and the
order is then signed.
Mr. Goodlatte. Moving to another subject, and that is this
question about the application for grants. The Office on
Violence Against Women, which is within the Department of
Justice's purview, recently announced changes to its grant
solicitation process for Fiscal Year 2014, which limits the
universe of grant applicants prior to grant recipients for a
number of the office's discretionary and competitive grant
programs. Specifically, it is limiting six of those programs to
only applicants who have been prior recipients.
This concerns me greatly, both from the standpoint of the
appearance of favoritism and from the standpoint of not looking
for new and innovative ways to combat violence against women.
And I wonder if you would comment on why this policy has been
permitted to take hold.
Attorney General Holder. I am sorry?
Mr. Goodlatte. I was just giving you an opportunity to
respond to that.
Attorney General Holder. Our grant making is really headed
by our Office of Justice Programs, a woman whose name is Karol
Mason, in whom I have total faith. What we have tried to do
under her and her predecessor, Laurie Robinson, is to seek out
from a variety of places grant proposals, support those
proposals that we think are of potential benefit, and then
actually do something that we do not think has necessarily been
done before, use evidence-based means to determine the
effectiveness of those programs, and on that basis make further
determinations about funding.
I am not aware of any determinations that are made to
exclude from grant making or grant seeking institutions that on
any basis. We take into account those grant applications that
are made, use neutral criteria to determine whether or not they
should be supported, but then, as I said, look after what
happens after the grant is made to see the actions that are
taken, again, on an evidence-based basis decide whether or not
the program should be supported or attempted to be replicated
in other parts of the country.
Mr. Goodlatte. Well, the information that I have is to the
contrary. My time has expired, so if you will, I would like to
pursue that matter with you after this hearing, and we will get
you some specific questions and concerns we have. But I am
concerned that new applicants are being excluded, and that
current applicants are being renewed not in a competitive
environment, and that concerns me.
Attorney General Holder. Mr. Chairman, I will say that I do
not think that is the practice. But to the extent that your
concern is a legitimate one, that is something that I will look
into and I will get back to you. That is not the way I
understand that we are proceeding. But if I am wrong, we will
get back to you and that practice will be corrected.
Mr. Goodlatte. Thank you. The gentleman from Michigan, Mr.
Conyers, is recognized for his questions.
Mr. Conyers. Thank you very much. Thank you for your
statement, Mr. Holder. It is important that we come together in
the Judiciary Committee and work out some of these differences
or misunderstandings as the case may be.
I would like to turn your attention to Section 215, the
Foreign Intelligence Surveillance Act, FISA. And we are going
to try to reach consensus on Section 215, and we will amend
that statute to correct the mistaken argument that relevance
means everything.
Some have suggested that Section 215 could be reformed
without requiring an individualized judicial determination of
relevance or reasonable articulable suspicion before the
government may demand certain business records. Consensus on
our Committee is that prior judicial review is necessary. How
do you stand on that?
Attorney General Holder. Well, I think that the proposal
that the President has made and in the interim steps that we
have taken all are an indication of a basic fact that I think
we have to understand. Section 215, as we know it, is proposed
to be ended by this Administration. That is a simple fact. And
what we would like to put in its place is a system where the
information is stored in a different place. The information is
acquired in a different way. The amount of information that is
actually held by the government is substantially reduced.
I think the debate that we have had as a Nation has been a
good one, and I think that the President's proposal that is
supported unanimously by his national security team is a good
step forward. We want to work with Congress to try to perfect
the proposal. It is, as I said, only a proposal and can
obviously be made better. So we want to work with Congress to
ultimately come up with a statutory change so that we can get
to this new Section 215.
Mr. Conyers. Thank you. But let me see if you feel that we
have to have this relevance before the government may demand
certain business records under 215. On this Committee, there is
a consensus that prior judicial review is necessary. Do you
share that view?
Attorney General Holder. Well, by going to the FISC and
specifying the reasonable articulable suspicion for acquiring
the information, I think we are making a particularized
request. It is something that is more predicate based than
existed in the past, and I think that is a step. I think that,
in fact, really deals with many of the concerns that have been
expressed.
Mr. Conyers. Thank you. On January 17, you and I were both
present at the Department of Justice when President Obama made
a series of commitments to reforming even more than 215, and
asked that the Department of Justice institute reforms that
place additional restrictions on the government's ability to
retain, search, and use criminal cases, communications between
Americans and foreign citizens incidentally collected under
Section 702. Have you or anyone in DoJ considered some of these
reforms and if they are necessary?
Attorney General Holder. Yes. I mean, one of the things
that I am charged with a responsibility of doing along with
Director of National Intelligence Clapper is to look not only
at 215, but the other tools that we have. Section 702 is one of
them. We have begun the process that the President gave us in
that regard. We are not finished with the work that we are
doing. Our hope would be to come to Congress with a proposal
and to work with Congress to make sure that 702, which is
already subject to, extensive oversight by the FISC, the
executive branch, Congress, but just to make sure that we have
the necessary procedures in place so that we are ensuring that
only non-U.S. persons outside the United States are targeted,
to minimize the acquisition, retention, and dissemination of
incidentally acquired information about U.S. persons.
But this a process that we are still engaged in, and I do
not think we are yet in a position where we can come to
Congress with a concrete proposal. Once we are at that point,
as we are with Section 215, we will be coming back to Congress
with that proposal.
Mr. Conyers. Thank you. I have three other questions. I
will send them to you, and we will keep in communication.
I yield back.
Mr. Goodlatte. The Chair thanks the gentleman and
recognizes the gentleman from Wisconsin, Mr. Sensenbrenner, for
5 minutes.
Mr. Sensenbrenner. Thank you very much. Mr. Attorney
General, thank you for coming here. I would like to ask you a
series of questions about the perjury which I believe that the
Director of National Intelligence, James Clapper, gave to the
Senate.
The U.S. Attorneys Manual specifically permits exposure of
information concerning ongoing investigations ``in matters that
have already received substantial publicity.'' Now, Director
Clapper's perjury, in my opinion, has been covered extensively,
and I have articles from The New Yorker, the Washington Post,
Guardian, Salon, the Washington Times, and the Huffington Post.
In light of this, are you willing to discuss whether or not
the Justice Department is investigating Director Clapper for
his statements before the Senate?
Attorney General Holder. I think that we received a letter
from you, Mr. Sensenbrenner. And I think, as we explained in
our response to your letter, I am really not in a position to
confirm whether the Department is investigating any particular
matter. But we are reviewing the material that you and other
Members of the Committee have provided to us, and I can assure
you that we will take any action that is appropriate.
Mr. Sensenbrenner. Well, the first letter I sent you was
several months ago, and, yes, we have received a response to
that. I sent you another letter last week clarifying this. So
let me refresh your memory. Senator Wyden asked Director
Clapper whether the NSA was collecting data about millions of
Americans. Mr. Clapper said, ``No, sir, not wittingly.''
Now, Senator Wyden advised the Director the day before the
hearing that he was going to ask this question. And after
Director Clapper responded in the manner that he did, Senator
Wyden gave him a chance to correct his testimony, which he
refused to do. And then Mr. Clapper told the media that he gave
the ``least untruthful answer.'' I think that we all know that
lying to Congress is a Federal offense, and the only way
Congress and, for that matter, the courts can be able to do
their job is to get truthful testimony and then apply the facts
and apply the law.
Now, my understanding of the offense of perjury is that it
was made under oath, which it was. It was knowingly false,
which Director Clapper admitted, even after he was given a
chance to change the testimony. And it is also material to a
government investigation, which I would assume includes an
investigation that is being made by Congress. Do you personally
believe that Mr. Clapper's testimony fits this description?
Attorney General Holder. Well, as I indicated, we are not
in a position to confirm whether the Department is
investigating any particular matter. But as I said also, we
will take into account in making any determinations that we
make the material that you have submitted to us.
Mr. Sensenbrenner. Is there any circumstance that you would
prosecute a member of the Administration for lying under oath
to Congress?
Attorney General Holder. Sure.
Mr. Sensenbrenner. What would that be?
Attorney General Holder. If the person lied and the
determination was made that all of the other legal requirements
of the perjury statute were met.
Mr. Sensenbrenner. Well, Director Clapper has admitted that
he has lied, and I outlined the elements to convict someone of
perjury. And I will remind you it is being made under oath, it
was knowingly false, and it is material to a government
investigation. Now, if you want to delay this or sweep this
under the carpet, would it not be pointless for Congress to
pass new laws limiting data collection if the Justice
Department is at liberty and other officials are at liberty to
lie about enforcing them?
Attorney General Holder. I am not sure I totally understand
the question, but I can tell you this. We take our
responsibility seriously to investigate allegations of perjury.
There have been prosecutions brought by this Department over
the years in that regard. With regard to this specific matter,
it is something, as I said, that we are looking at the
materials that have been presented to us, and action will be
taken that is appropriate.
Mr. Sensenbrenner. I seem to recall back 25 years ago
during Iran-Contra there were prosecutions, and the only way
Colonel North and the person who is superior ended up getting
off is because Congress was a little too eager to provide them
immunity. And there was immunized testimony that was used in
the prosecution. Here there is no immunity that has been given
at all, and I am interested in making sure that everybody knows
that they have to tell the truth when they appear before
Congress. And what more do you need besides an admission from
General Clapper that he lied? ``I gave the least untruthful
answer.'' My time is up.
Mr. Goodlatte. The Chair thanks the gentleman, and
recognizes the gentleman from New York, Mr. Nadler, for 5
minutes.
Mr. Nadler. Thank you, Mr. Chairman. First, let me state to
the Attorney General that I share your commitment to trying
suspected terrorists in our Article 3 courts, and I applaud and
congratulate you and the Department for the successful
prosecution of Osama bin Laden's son-in-law, Sulaiman Abu
Ghaith, I think the pronunciation is. That conviction came 13
months after his arrest, and he now faces potential life in
prison.
By contrast, Khalid Sheikh Muhammad and his four co-
defendants have been in custody for more than a decade, and it
remains uncertain when, if ever, the Military Commission System
will finally be able to get around to a trial. I hope with the
conviction of Abu Ghaith that we can stop wasting time and
money on the so far unsuccessful Military Tribunal System and
secure the convictions of the guilty terrorists in our Article
3 courts. And I want to thank you again for restating today
your commitment to that system.
Now, following the failure of many savings and loan
institutions in the late 1980's, special government task forces
referred 1,100 cases to prosecutors resulting in more than 800
bank officials going to jail. By stark contrast, no senior
executive at any large financial institution at the heart of
the 2008 financial crisis has been charged or prosecuted.
Just last month, the DoJ Inspector General concluded that
the FBI ranked financial crime as the lowest criminal threat in
the aftermath of the 2008 financial crisis, did not use some of
the additional funding that Congress provided to pursue
mortgage fraud for this purpose, and that DoJ mistakenly
inflated its results in mortgage fraud prosecutions by some 90
percent. That report is very troubling.
My question is, why did the DoJ or the FBI not devote the
same kind of resources that were devoted to the savings and
loan crisis in the 80's? What steps are you now taking to
investigate whether money allocated by Congress to pursue
mortgage fraud was misspent? And what other steps are you now
taking in response to the IG's report? And finally, in light of
this experience of the total failure to prosecute or even
investigate high-ranking bank officials for the fraud that led
to the 2008 crash, what steps are you taking to ensure that the
full range of possible criminal charges would be investigated
with regard to General Motors and its faulty ignition switches
that reportedly have resulted in at least 13 deaths years after
they knew about them?
Attorney General Holder. Well, with regard to the OIG
report, I just take exception to a lot of the conclusions that
are contained therein. If you look at the report itself, the
number of mortgage fraud convictions nearly doubled from Fiscal
Year 2009 to 2010, from 555 to 1,087, and then increased
further in Fiscal Year 2011 to 1,118. And this, I think,
reflects a really rapid mobilization on the part of the
Department to combat mortgage fraud during this critical
period.
If you look at, as I said, some of the results that we have
had over the past year and a half or so, including that $13
billion resolution with JPMorgan, that makes clear, I think,
our determination to hold people accountable. The national
mortgage settlement resulted in $20 billion in relief and
assistance going to more than 600,000 families. And if you look
at more generally our history of holding accountable
institutions and individuals who were connected to this
financial fraud, beginning in 2013 we have gotten guilty pleas
from the following financial industry institutions: UBS, RBS,
SAC Capital, Weigand. With respect to prosecutions of
individuals, we have charged individuals from the following
companies: JPMorgan, Goldman Sachs, Morgan Stanley, Credit
Suites, UBS, RBL Bank, ICAP, Galleon, SAC Capital, Stanford
Financial Group.
So the notion that somehow or other we have not been doing
what we should have been doing with regard to the mortgage
fraud problem, the financial industry in general, is a nice
talking point. And I do not mean to say that is what you are
saying, but it used by some as a talking point. It seems to be
inconsistent with the facts.
Mr. Nadler. Well, thank you, but it is essentially what I
am saying. I think going after a company which can pay a fine
paid by the shareholders is not the same as prosecuting someone
other than small fries, prosecuting the higher ups in these
companies who okayed this. But let me get onto my next
question.
The review group appointed by the President to review the
Section 215 bulk collection of telephone metadata concluded,
among other things, that a single legal standard should apply
to NSLs and Section 215 because otherwise you simply switch
from one to the other. Do you agree, and I hope you can brief
us on this because I have one more question. Do you agree that
we should follow this recommendation, that we should make these
standards for NSLs as for 215?
Attorney General Holder. Well, I think that, you know, we
have to understand the different nature of these. NSLs were a
tool to obtain really narrowly defined types of records from a
narrow set of institutions. By contrast, 215 will ask the
government to obtain many tangible things. And because 215 has
a much wider breadth of materials that can be obtained, the
need for judicial supervision, I think, is more obvious.
NSLs, you get information that is used to build cases in
the same way that you use grand jury subpoenas that frankly do
not involve judicial supervision.
Mr. Nadler. So you do not agree? So you do not agree with
the recommendation of the President's Review Commission?
Attorney General Holder. I have stated my position, yes.
Mr. Nadler. Okay. My last question is, the President when
he campaigned back in 2008 said he was going to rein the use of
the State secrets doctrine. And he has mildly done that by
saying only higher ups in the Department can approve it, and
they will use it more sparingly. But you still use the State
secrets doctrine to object to a case as an answer to a
complaint and completely stop a case from being heard. And this
means that people cannot get their cases into court, that
rights cannot be vindicated, that the judicial system cannot
even consider many allegations.
A 9th Circuit panel said that the problem with this was
that the executive cannot be its own judge, and under this
system, the executive is its own judge. I would observe that
this insulates the executive from any accountability for its
actions because it classifies some of its own actions, and then
blocks any judicial review by incantation of the magic word
``State secret.''
Do you think that it is proper or wise in a democracy to
trust the executive branch with such absolutely unreviewable
power over our liberties in such a way that rights can be
violated and no one can get into court to challenge those
rights.
Mr. Goodlatte. The time of the gentleman has expired. The
Attorney General will be permitted to answer the question.
Attorney General Holder. Well, we have really fundamentally
changed the whole invocation of the State's secret privilege. I
put in place a series of measures so that a determination can
only be made after review by a high-level committee and
ultimately by sign off by the Deputy Attorney General and by
myself, understanding that we were never to use the State
secrets privilege to hide things that were embarrassing or to
hide government misconduct. There is a reality we have to also
face, though, that there are certain cases that bring into or
potentially bring into the public realm things that would harm
the national security.
I would also note that I am not sure what opinion you are
referring to, but in another opinion, a 9th Circuit judge or a
district court judge in the 9th Circuit noted very approvingly
of the changes that we had made in the Justice Department with
regard to how we deal with the whole question of the invocation
of the State secrets privilege. And I am actually proud of the
work that we have done. I think that we justify every time that
we have used it, and it has been used extremely sparingly by
this Administration.
Mr. Goodlatte. The Chair recognizes the gentleman from
North Carolina, Mr. Coble, for 5 minutes.
Mr. Coble. Thank you, Mr. Chairman. General, good to you
have you back on the Hill. In August of 2013, the Justice
Department announced it would not challenge recently-passed
State laws legalizing the production, trafficking, possession,
and recreational use of marijuana. Subsequently, DoJ issued
guidance to banks regarding the proceeds of illegal marijuana
trafficking.
In issuing the guidance, you said that ``there is a public
safety component to this because the dispensaries have lots of
cash.'' General, what is the only public safety issue that the
dispensaries have an excessive amount of cash? Well, let me
continue that. Is there also not a public safety issue
involving the trafficking, distribution of a substance that is
still illegal under Federal law?
Attorney General Holder. Well, the notion that somehow we
have retreated from our enforcement of the Controlled
Substances Act with regard to marijuana is not accurate. What
we have done is to clarify in a, I guess, pronouncement that
the Deputy Attorney General set out eight factors that we take
into consideration before we use our limited resources with
regard to marijuana and enforcement of the marijuana laws. That
is not inconsistent with, I think, the way in which the Justice
Department was acting before.
Low level possessors of marijuana were never Federal cases
in any case. The things that we are talking about now involve
trafficking in marijuana that goes to minors, drug driving,
where violence is involved, where cartels are involved, so that
we remain committed to enforcement of the marijuana laws when
it involves those eight factors.
Mr. Coble. In the responses to the questions for the record
from our last hearing, which we received last week, which is
actually 11 months after you last appeared here, you stated
that ``Congress has determined that marijuana is a dangerous
drug, and that the illegal distribution and sale of marijuana
is a serious crime that provides a significant source of
revenue to large-scale criminal enterprises, gangs, and
cartels. It is the responsibility of the Department of Justice
to enforce the Controlled Substances Act in all States.''
General, given your apparent commitment to enforcing
Federal law, why is the Department now encouraging banks to
help dispensaries launder money? Now, this may be subject to
interpretation, but I think even though transactions may well
have been legal in the two States with which we are familiar,
it can still--well, strike that. Let me say it in a different
way. Given the Federal exposure, that could well amount to
money laundering, could it not?
Attorney General Holder. I am sorry. I did not hear the end
of your statement.
Mr. Coble. Pardon?
Attorney General Holder. I just did not hear the end of
your question.
Mr. Coble. I said admittedly they could well be subject to
interpretation, but Federal involvement in these proceeds,
which were legally exchanged at the time of purchase. Could
that not amount to money laundering?
Attorney General Holder. We decided in the statement that
we issued was to deal with what I described was, and I think
you quoted in my letter, a public safety concern where as a
result of the changes made in Washington and in Colorado you
have institutions that would have large amounts of cash on
hand. And so, we wanted to come up with ways in which that cash
would not necessarily be in one place subject to robbery,
whatever, violence, and would be allowed to be placed into
banks. And that is why those rules were changed.
Ultimately, it is for the individual banks to make
determinations about whether or not they want to accept those
deposits given the eight factors that we have set out in our
overall marijuana enforcement policy.
Mr. Coble. Well, many people, General, in response to
Colorado and Washington seemed to make it clear these are legal
transactions. Well, they are legal transactions at the State
level, but they continue to be illegal activity, in my opinion,
at the Federal level. Do you concur with that?
Attorney General Holder. Well, again, there are a lot of
things that are technically violative of the Federal law. We do
not prosecute every violation of Federal law. We do not have
the capacity to do that. And so, what we try to do is make
determinations about how we use our limited resources. Those
eight factors set out the things that from our perspective are
most important about our marijuana enforcement efforts.
I think that we will still be good stewards of the
Controlled Substances Act. We will prevent marijuana from
getting into the hands of minors. We will prevent violence in
the trafficking and sale of marijuana, prevent the cartels from
profiting. Those are the factors. Those are the things that I
think are worthy of Federal consideration.
Mr. Coble. Thank you, General. Chairman, I see my red light
has illuminated. I yield back my time.
Mr. Goodlatte. The Chair recognizes the gentlewoman from
California, Ms. Lofgren, for 5 minutes.
Ms. Lofgren. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General, for being here today. I want to follow up on
some of the questions that have already been posed relative to
surveillance. We have had a lot of conversation in the country
about phone records, but I want to talk about Section 215 and
214, for that matter.
Is it your view that other data held by third parties, for
example, financial records, or emails, or records of what an
individual searches for on the internet, that are held by third
parties is in the same legal posture--I am not suggesting it is
being done--but as a legal matter is in the same posture as
phone records?
Attorney General Holder. Well, do you mean to compare it to
the bulk telephony program that existed?
Ms. Lofgren. Yes. I mean, the government's view is that it
is constitutional to collect bulk phone records because they
are business records. There are other records that are held by
third parties, for example--emails, searches of the internet,
financial records--that are, I believe, covered under 215. I am
just trying to probe whether that is your understanding as
well.
Attorney General Holder. Well, under the way in which we
are trying to reform 215, the notion is that a request has to
be supported by reasonable, articulable suspicion.
Ms. Lofgren. But you are not answering my question. My
question is, are these other records in the same legal posture
as the phone records? I mean, it is either yes or no.
Attorney General Holder. I am not sure I am understanding
your question. I mean, obviously they are governed by the same
law, so----
Ms. Lofgren. Okay. So then you have answered my question.
Thank you. I want to talk about Section 702. Mr. Clapper sent a
letter to Ron Wyden on March 28 indicating that there have been
queries of U.S. persons of communications that he says were
lawfully acquired under Section 702.
Now, in taking a look at what the FISA Court said just a
few years ago, in 2011 they observed that the NSA acquires more
than 250 million internet communications each year pursuant to
Section 702. That was in 2011. I want to probe how it could be
that we would collect this data looking at foreign persons on a
51 percent basis of confidence that the person is abroad, and
then feel free to query for U.S. persons. How does that comply
with the Fourth Amendment in your judgment?
Attorney General Holder. Well, I certainly think that
everything that has been done is consistent with the Fourth
Amendment, but that really only goes part of the way. The
President has said, you know, just because we can do certain
things does not necessarily mean that we should do them. Now,
we have looked at 215. We proposed modifications, as I have
indicated. We are looking at Section 702, and I think we are
going to have modifications that we are going to propose there
as well.
Ms. Lofgren. Let me ask you in terms of whether you think
we have legal or constitutional limits in receiving information
on American citizens in the United States that have been
collected or obtained from our allies, for example, Britain, or
Canada, or Australia's security forces. Is there any
prohibition constitutionally in our receiving information from
allied agencies?
Attorney General Holder. I am not sure there is a
constitutional prohibition, but we do have good relationships
with our allies. We share information with them when that is
appropriate.
Ms. Lofgren. Let me ask you in terms of other public data,
we are in a situation in this country and really in the world
where there is a digital record made of us wherever we go. I
mean, you walk down the street, every ATM machine has a camera.
Every 7-Eleven has a camera. What is the Department's view in
terms of the need for a judicial review to obtain those digital
records and to data mine them for information about American
citizens?
Attorney General Holder. I think the Department has
different standards depending on the nature of the information
that is sought, the privacy implications that are at play or
that are a part of the determination. We try to do things in a
way that are consistent with our obligations obviously under
the Fourth Amendment, but go beyond that so that we do not turn
ourselves into a state that we do not want to ultimately be.
And so, there are different----
Ms. Lofgren. But the question is, does the Department feel
that you have to get a warrant or not to obtain and data mine
such information?
Attorney General Holder. When you say ``data mine,'' that
is a very broad thing. I mean, it depends really on the nature
of that which we seek. I mean, if you go back, you know, when I
was a young prosecutor and you wanted to get mail covers, for
instance, you know. There are a whole variety of things that
you can do with and without the courts, and that is still the
case.
Ms. Lofgren. Well, I see my time has expired, Mr. Chairman.
I am going to follow up, if I may, with you, Mr. Attorney
General, with some specific questions that I hope I can get
answers to. And I thank you very much.
Mr. Goodlatte. And we hope the Attorney General will
respond to those questions. And the Chair now recognizes the
gentleman from Ohio, Mr. Chabot, for 5 minutes.
Mr. Chabot. Thank you very much, Mr. Chairman. Thank you,
Mr. Attorney General. On July 25, 2013, 15 Members of this
Committee wrote you to inquire whether the Department of
Justice was consulted regarding the constitutionality of the
Administration's decision to delay the employer mandate, and if
so, what the Department's position was regarding its
constitutionality. This Committee still has not received a
satisfactory response.
Now, you stated publicly on the record to Senator Mike Lee
of Utah at a Senate Judiciary Committee hearing held on January
29, 2014, about 2 months ago, that the Justice Department had
indeed provided such a legal analysis. Now, at that same
hearing, you speculated publicly regarding what you recalled
was contained in that legal analysis. Since you have previously
speculated publicly on these issues, and since you have had
time since that meeting back on January 29, 2014, the Senate
hearing, to refresh your memory regarding the specific nature
of that legal analysis, could you now please describe the
specific nature of that legal analysis on the Affordable Care
Act?
Attorney General Holder. Well, I would say this. Chairman
Goodlatte sent me a letter that I had a chance to review that
contained within it my colloquy with Senator Lee. I believe it
was Senator Lee. It seemed to me that that was a conversation
that was more general than the one that you have discussed. But
in any case, the Department generally does not disclose the
content of confidential legal advice to the President or other
government decision makers. The Department of Treasury has
previously explained to Congress what the legal basis was for
the decision to delay the enforcement of the employer mandate,
and I think that I would refer you to that document.
Mr. Chabot. So when 15 Members of this Committee send you a
request based on the legal analysis of something as significant
as that, do you not think we deserve a response?
Attorney General Holder. I apologize if there has not been
a response to that inquiry, but I think, yes, that is certainly
worthy of a response. Certainly it would contain what I just
told you.
Mr. Chabot. All right. Thank you. Let me move on then. The
President made the unilateral decision to delay the Affordable
Care Act's employer mandate for 1 year despite clear statutory
language instructing that the penalties associated with the
mandate shall apply--and this is a quote--``shall apply 2
months beginning after December 31, 2013.'' Now, when Congress
puts effective dates in laws, do we need to further state that
the effect cannot be waived or modified by the executive
branch, or is the President required to follow the law and also
follow the dates that are set by Congress?
Attorney General Holder. Well, the President has the duty
obviously to follow the law.
Mr. Chabot. Would that not include the dates that are
contained in the law? There was not anything, I do not think,
confusing about them or contradictory about them. It says a
specific date. Does the President not have to follow that law?
Attorney General Holder. Well, it would depend on the
statute. It would depend on the statutory interpretation.
Mr. Chabot. Okay. Well, the statute we are talking about
was the Affordable Care Act or Obamacare, as some people refer
to it. So that is the one we are talking about. It is not some
hypothetical law. That is the law.
Attorney General Holder. Yes, and as I indicated, the
Treasury Department had looked at it and determined that there
was a legal basis for the----
Mr. Chabot. Well, you are his legal advisor, and I am
asking you should he not follow the law when it says specific
dates. And my question was, or if that is not the way the
President going to operate, are we going to have to put in
there what I stated, that the effective date cannot be waived
or modified by the executive branch, meaning the President. Do
we have to put that language in there from now on, or should
that not be assumed that the President does not have to change
it if we do not put that language in there?
Attorney General Holder. Far be it from me to tell you how
to do your jobs. I can only talk about the statutes that
actually exist and the ones that come into either the
Department or other branches of the executive----
Mr. Chabot. All right. Thank you. I am almost out of town,
so let me give you one quick one. As Attorney General, you are
charged with faithfully executing the law. In remarks to the
States attorneys general in February, you exhorted them to be
suspicious of State laws that define marriage as the union of
one man and one woman. Why when you are the top law enforcement
official in the country would you tell your counterparts in the
50 States not to defend laws constitutionally passed by those
States, regardless of whether you agree with that policy or
not?
Attorney General Holder. Well, with all due respect,
Congressman, I think you have gotten some really bad
information. I did not say that people needed to be suspicious
of particular laws.
Mr. Chabot. Well, I am paraphrasing what you said, but I
think----
Attorney General Holder. Well, that is not a great
paraphrase.
Mr. Chabot. Okay. Well----
Attorney General Holder. What I said----
Mr. Chabot. We will go back and look at the language.
Attorney General Holder. That is fine. I mean, what I was
said that decisions to not defend statutes cannot be based on
politics or policy. There have to be----
Mr. Chabot. You guys would never do that----
Mr. Goodlatte. The time of the gentleman has expired.
Attorney General Holder. Well, I mean----
Mr. Goodlatte. The Attorney General can finish his answer.
Attorney General Holder. I was going to say that there have
to be bases in law, constitutional concerns. The example I
used, I remember, in conversations with--I cannot exactly
remember who--in 1953, the Congress passed a law that said that
separate but equal was appropriate. And if I had been asked----
Mr. Chabot. There was a Fugitive Slave Law at one time----
Mr. Goodlatte. The time of the gentleman has expired. The
Chair recognizes the gentlewoman from Texas, Ms. Jackson Lee,
for 5 minutes.
Attorney General Holder. I would not have defended that one
either.
Ms. Jackson Lee. Let me thank the General for your presence
and your service and just the number of vast changes that are
for the good that we have been able to experience. A number of
my colleagues have asked about the NSA, and I am going to
either write a letter on that or ask the question if I get
enough time. And I ask unanimous consent to introduce this
letter into the record, Mr. Chairman, that I sent to Mr. Holder
in January of 2014.
Mr. Goodlatte. Without objection, it will be made a part of
the record.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Ms. Jackson Lee. If you would, General Holder,
unfortunately Jasper, Texas has had another incident. Jasper,
Texas, the home of the late James Byrd, Jr., who was violently
murdered in 1998. Another young man by the name of Alfred
Wright, a 28-year-old African-American honors graduate from the
University of Memphis, whose body was found 19 days after first
reported missing, and the community had allegedly been
searching for 17 days. His body was somewhat mutilated, but
certainly did not look like it had been in the wild, if you
will, for 17 or 19 days. He stopped his truck. It was
overheated. He was in front of a store, and all of a sudden he
went missing.
We have, as I understand it, a Justice Department
investigation, but there has been no word whatsoever. There has
been a lot of chatter, a lot of upsetness by the family
members, a lot of emotion. And so, my question is, how speedily
can we move that investigation? And I would also encourage,
even though I understand we cannot taint an investigation, but
I would appreciate if there would be some dialogue. I do not
believe that dialogue with those who represent those
individuals is a violation of the investigation. Mr. General?
Attorney General Holder. Yes, we will certainly take into
account the letter that you have indicated, the letter that you
have talked about. I was just checking to make sure with my
memory, but the U.S. Attorney is actually looking at this
matter. I am not in a position to discuss this further at this
time, but I have been told that the U.S. Attorney has been in
touch with the family. But it is something that we are taking
seriously.
Ms. Jackson Lee. And I appreciate it. And if I could get a
briefing through DoJ here in Washington, that is, General--I
understand the specifics cannot be discussed--it would be very
helpful.
Attorney General Holder. Okay. We will share what we can
appropriately.
Ms. Jackson Lee. Thank you. Let me move quickly to another
letter that I sent on October 15, 2013. I ask unanimous consent
to introduce this into the record, Mr. Chairman. This letter
involves a shooting in Bellaire, Texas. And unfortunately, a
young man, a family owned a home, and he was confronted by
police on his own steps and shot on his own steps under the
allegation that he had stolen a car. He happened to live in a
majority neighborhood, meaning a neighborhood that did not look
like him.
The unfortunate part about it is that it ended his very
promising baseball career. The problem is that a response came
back that there was not going to be an investigation probably
because incidences are not reported frequently out of Bellaire,
Texas. There was a suggestion of practice and pattern. I would
like the Justice Department to get back with me on how that
could be pursued because the fact that you have one incident
means that it is a community that does not report police
abuses, and you have a situation that has not been addressed.
This is Mr. Toller, and this case was sent to you.
Attorney General Holder. Okay.
Ms. Jackson Lee. Thank you. I ask unanimous consent to put
this in the record, Mr. Chairman.
Mr. Goodlatte. Without objection, it will be made a part of
the record.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Ms. Jackson Lee. Another letter that I am going to pursue
questioning on, and thank you very much. February 5, three
Members of this Committee sent a letter to major leaders of
civil rights organizations to comment on the clemency process
that is now being put in place. Mr. General, could you
emphasize how important this process is based upon the change
in law that this Committee had on the crack cocaine, and how is
it being implemented with the Federal Bureau of Prisons? How
successful do you think it is? How much more work do we need to
reach these individuals who are doing it?
And let me ask this follow-up question so that I will not
be left out. I am going to send you a letter regarding the
investigation of the high speed trading and just to understand
what the basis of the law is on that. But the other question I
want answered besides the clemency is, there is a proposed
merger between Comcast and Time Warner. You have been vigorous
before on antitrust issues. I want to know how vigorous you are
going to be in this very massive and impactful potential
merger.
On the clemency, please, Mr. Attorney General. Again, thank
you for your work.
Attorney General Holder. The clemency matter or clemency
process that you talked about is something that is of concern
to us. We have required in our budget the ability to hire seven
new people for our Pardon Attorneys' Office that would include
four attorneys so that we can process these matters at a
greater rate. We have also begun an initiative to identify
additional clemency candidates who are similarly situated to
the ones that the President granted clemency to, the eight or
so, I believe, a few months or so ago.
There are people who do not have ties to gangs or cartels.
They are not threats to public safety. They have sentences that
I think that we would all generally agree are excessive in
nature and where clemency is something that should be
considered. The Deputy Attorney General gave a speech in New
York where he sought the help of the private bar in addition to
the resources that we have sought so that we could try to make
this clemency process a better and more fulsome one.
Mr. Goodlatte. The time of the gentlewoman has expired.
Ms. Jackson Lee. Mr. Chairman. Mr. Chairman, could he just
take 10 seconds on Time Warner, please? I ask unanimous
consent.
Mr. Goodlatte. The time of the gentlewoman has expired. The
Attorney General may answer that question in writing.
It is now the opportunity of the gentleman from Alabama,
Mr. Bachus, to be recognized for 5 minutes.
Mr. Bachus. Thank you, Attorney General. I hope you are
feeling better.
Attorney General Holder. I am getting there.
Mr. Bachus. Good. Good. When you appeared here last May, I
asked you about the Associated Press case. You were not able to
supply any details because you said you had recused yourself
early on. I asked you if there was the date of that or whether
it was a formal process, and you said there was no record of
it. And I at that time indicated to you, and I think you
probably agreed with me, that there should be a need when you
recuse yourself from a case to have a formal written entry.
Have you all adopted such a policy?
Attorney General Holder. Well, I guess I am not sure that
we have formally done so, but in my own mind I thought that to
the extent that I recuse myself in other matters, I would do so
and put a writing together of some sort that would indicate
what the basis was for that recusal.
Mr. Bachus. I know you just indicated it was a conflict of
interest or the appearance of a conflict of interest. But do
you not believe that because of that and other cases that it is
essential that there actually be a formal process where you
submit or whether there is something in writing with a date and
time on it?
Attorney General Holder. Yes. I think you raised it during
the hearing last year. And I said then, I think it is a good
idea. My only concern was I----
Mr. Bachus. Well, I mean, as opposed to a good idea. Why
does the Justice Department not adopt a formal process and do
that, you know, particularly in that you are required by law to
sign off on any subpoena involving the media? So I just think
particularly in a matter like that that there ought to be a
formal recusal. I am just going to again renew my request that
you do that, inform us if and when you do it.
Attorney General Holder. Okay. That is fine.
Mr. Bachus. You know, since that time, I became aware in a
press conference about that same time you said the Associated
Press case was one of the worst leaks you have seen throughout
your career. Do you still believe that?
Attorney General Holder. Yes.
Mr. Bachus. It is my understanding from everything we have
seen now that the information they published on Monday was
going to be the subject of an announcement by the White House
early Tuesday morning, and this was something that happened a
year or two before in Yemen. I am just wondering why a day's
delay with something that the White House was going to announce
the next day, why would it have been so serious to secretly
subpoena from Verizon all of the records. Am I wrong? Was the
White House not going to reveal this information the very next
day?
Attorney General Holder. Well, I hope we are talking about
the same leak. But what I was discussing was something that had
a negative impact on our ability to--I cannot talk about this
maybe too much--but to get----
Mr. Bachus. Well, that case is closed, is it not, the AP
case?
Attorney General Holder. Yes, but we still have to talk
about methods----
Mr. Bachus. Well, if it is closed----
Attorney General Holder [continuing]. That were
potentially----
Mr. Bachus. Well, am I wrong that the White House was going
to disclose the information disclosed in the article the very
next day, and they had asked the AP to delay it one more day?
Attorney General Holder. But that is only after the fact
the leak had existed. Had there been no leak, there would----
Mr. Bachus. I do not think there has been any public--okay.
All right. Well, but what I am saying is the White House was
going to reveal that information the very next day.
Attorney General Holder. As I remember it, the plan was not
to reveal it on any day, but for the fact that the leak had
already occurred.
Mr. Bachus. All right. You know, one time I also asked you,
and I think it was informally, whether or not there were any
other media outlets during that period of time or since that
time--well, let us just say during that period of time--that
were targeted by the Justice Department other than the Rosen
case and the AP case. And you said you were not sure. Were
there others?
Attorney General Holder. Do I----
Mr. Bachus. Were there other media outlets which were
targeted?
Attorney General Holder. Other media----
Mr. Bachus. We know of the Rosen case. We know of the AP
case. Were there other examples where media outlets were
secretly targeted?
Attorney General Holder. Oh, I see what you mean. I would
not agree that any media outlets were targeted. What happened
in at least a couple of those cases was determinations were
made to try to get information. We went through a process after
that firestorm. I met----
Mr. Bachus. I know about that in July, but what I am asking
you, were any other media targeted by secret request to Verizon
or others to look at their information other than the
Associated Press and the Rosen case, which we know of because
that was revealed. Are there any others?
Attorney General Holder. As I said, the processes that we
had in place to the extent that we thought or I made the
determination that changes need to be made have, in fact, been
made. We had a good series of meetings with media----
Mr. Bachus. Well, did you have any----
Mr. Goodlatte. The time of the gentleman has expired. The
Chair recognizes the gentleman from Virginia, Mr. Scott, for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman. Thank you, Mr. Attorney
General, for being with us today. I had a question about
torture, and just simply we have heard that torture worked in
certain situations. Do you get retroactive immunity if it
worked for conducting illegal torture?
Attorney General Holder. Do you get retroactive immunity if
you do what?
Mr. Scott. If it worked. You got good information. What is
the legal significance of getting good information if it
worked?
Attorney General Holder. I am not sure I understand the
question.
Mr. Scott. Well, some people say it worked; therefore, what
otherwise would have been illegal torture was okay. Is it okay
if it worked?
Attorney General Holder. If somebody had engaged in
practices--torture--that violated Federal law, the fact that it
worked would not be a bar to potential criminal liability.
Mr. Scott. Thank you. If you call it ``enhanced
interrogation,'' does that make it okay?
Attorney General Holder. No. Slapping a label on something
does not change things.
Mr. Scott. Thank you. I want to switch subjects to
mandatory minimums. You mentioned legislation that is pending.
What can the executive branch do to alleviate the egregious
harm inflicted by an unjust mandatory minimum?
Attorney General Holder. Well, what I have tried to do
through our Smart on Crime initiative is to make sure that our
people in the field, our assistant U.S. attorneys, are using
their discretion in appropriate ways only to bring cases that
ought to be in the Federal system, only to charge mandatory
minimum sentences where they are appropriate given the nature
of the conduct of the defendant who is before a particular
assistant U.S. attorney. And I have great faith in the men and
women of the Department to make those determinations in an
appropriate way.
Mr. Scott. Are you recommending that the executive branch
use the power of pardon to deal with some of these cases, too?
Attorney General Holder. Yes. As I replied to somebody else
previously, we think that the clemency process--the President
agrees with this--that the clemency process has to be a part of
this overall look at our criminal justice system.
Mr. Scott. Thank you. The Youth Promise Act, I think you
are familiar with it, which requires localities to come
together, first of all, to assess how much they are spending on
incarceration and other things that would be prevented with a
good, comprehensive, evidence-based, locally-tailored program,
and as money is being saved, to reinvest the money to keep the
programs going. Has the Department of Justice taken a position
on the Youth Promise Act?
Attorney General Holder. I believe we are supportive of it,
yes? We are supportive of the Youth Promise Act.
Mr. Scott. Thank you. And on voting rights, we are all
disappointed by the Shelby decision, and we are trying to fix
it. What can we do to cover jurisdictions where there is not a
formal finding of prior finding of recent discrimination? Is
there any way that we can cover jurisdictions without that
finding?
Attorney General Holder. Well, I think what we shared with
the Members of this Committee and other Members of Congress was
a regulatory framework in which over a set period of time, a
number of violations could make the particular State or
jurisdiction subject to Justice Department review if there was
a desire to change a voting procedure. And I think that would
respond to the Supreme Court's concern expressed in the Shelby
case.
Mr. Scott. Could we have someone be required to have a
process pre-cleared if it is a suspect change if there is no
prior finding of discrimination?
Attorney General Holder. Well, beyond what we had proposed,
there are other parts of the Voting Rights Act that allow the
Department to look at individualized actions that a particular
State or jurisdiction might take. Those are cases that are not
easily proven.
Mr. Scott. But in terms of pre-clearance, is there any way
that you can stick them with pre-clearance if you do not
connect that with prior findings of discrimination under the
Shelby case?
Attorney General Holder. I think it would be difficult. And
I think what we tried to come up with was a process by which
the gambit of the Voting Rights Act would be spread beyond
those States that had been covered before, and would focus on a
requisite number of violations over a set period of time that
would move over the years so they would not become old in
nature.
Mr. Scott. And what can be done to improve the injunctive
process?
Mr. Goodlatte. The time of the gentleman has expired. The
Attorney General can answer briefly the gentleman's question.
Attorney General Holder. The question was----
Mr. Scott. Maybe if you could do it for the record, if you
could comment on how we can improve the process of injunction
so that localities do not have to suffer irreparable harm. If
you could respond to that for the record, I would appreciate
it.
Attorney General Holder. Okay.
Mr. Goodlatte. The Chair thanks the gentleman, and the
Attorney General----
Attorney General Holder. Mr. Chairman, I am having a hard
time sometimes hearing some of the questions. I am not sure if
maybe the mikes are not on or something.
Mr. Goodlatte. We will check that. And in the meantime the
Chair recognizes the gentleman from California, Mr. Issa, for 5
minutes.
Mr. Issa. Thank you, Mr. Chairman. Mr. Attorney General,
can you hear me okay?
Attorney General Holder. I can always hear you. [Laughter.]
Mr. Issa. Thank you, Mr. Attorney General. Mr. Attorney
General, I think you would agree that the importance and
sanctity of the Inspector General Act is one that is important
to all of government. Would you agree?
Attorney General Holder. The sanctity?
Mr. Issa. The sanctity, the independence of the Inspectors
General Act----
Attorney General Holder. Oh, okay. Sure.
Mr. Issa [continuing]. Is clearly an intent of Congress as
signed into law, and you would agree with that.
Attorney General Holder. Yes. To have a good inspector
general, you need some degree of independence.
Mr. Issa. And Michael Horowitz, your inspector general, you
would agree that, in fact, he is a good inspector general?
Attorney General Holder. Yes, he is a very good inspector
general. I have known Mike for a good number of years.
Mr. Issa. Well, last week Mike said at the Senate
Appropriation Subcommittee that essentially, I will paraphrase,
he has been interfered with. He has had to go specifically to
you or your deputy to get permission to have access to records,
and that has taken time, although he has ultimately gotten it.
Can you tell me why you would require your inspector general to
go through a process to get specific access to materials on his
investigations and the delays that come with it?
Attorney General Holder. Well, first, I think it is
important to note that, as he acknowledged, that the IG has
gotten all the documents they believe were necessary----
Mr. Issa. He said in time in the two particular cases which
he felt were helpful to you that you approved it, but is it not
a form of soft intimidation by any stretch of the imagination
to force an independent individual who is supposed to have
unfettered access to these documents in their investigations,
which could even include an investigation of high-ranking
individuals working for you? To have to ask for that by
definition requires him to disclose and to essentially beg for
permission to have access to documents. Is that not correct?
Attorney General Holder. Yes. This is not a policy choice
that has been made by me or any other attorney general. There
are legal restrictions as to what the Department can do with
certain sensitive information that is unique to the Justice
Department, such as wiretap information, or grand jury
information that require the Attorney General or perhaps the
Deputy Attorney General to grant the inspector general access
to that information. It is a legal restriction.
Mr. Issa. But you can grant him broad access just as you
grant certain individuals broad access. It is not something
where he needs to apply or needs to go through a process, is
it?
Attorney General Holder. I am not sure exactly what the
process is, but I do not think it is anything that has had a
negative impact on any investigation that he has tried to
conduct.
Mr. Issa. Well, it has had a negative impact. It has caused
delays. Ultimately he was granted in the two examples where he
went through the process, but, well, I think it speaks for
itself that this is not the treatment that IGs normally find,
and it is one that is inconsistent with the act.
I would like to next go to Director B. Todd Jones'
testimony last week before my other Committee in which,
although he admitted that under Department of Justice
observation that the ATF had used mentally disabled persons
with some consistency around the country in their
investigations, often having to train them, for example, on
what a machine gun was, and then send them out to buy the
machine gun after they taught them what it was, and then
arrested them for buying it. He said that, in fact, his agents
were not able to tell that somebody had an IQ of 50, and as a
result it really was not something that was a target. It just
happened.
First of all, have you looked into this pattern by ATF of
using mentally disabled individuals in their investigations?
Attorney General Holder. Yes, I am familiar with that, and
what I guess you are referring to are these storefront
operations.
Mr. Issa. Correct.
Attorney General Holder. I am greatly troubled by them. The
head of ATF has asked the inspector to look at these. There are
no longer any storefront operations that are in existence. And
the conduct that you talk about, from my perspective, is very
troubling.
Mr. Issa. I appreciate that. Would it be possible to have
the Civil Rights Division be the one that leads looking at the
question of the use of the mentally disabled?
Attorney General Holder. Well, I am sure the IG will look
at it and make determinations, and then they typically will
make recommendations----
Mr. Issa. And I appreciate the IG's independence in this
matter. Lastly, the investigation into the IRS' targeting of
conservative groups, my understanding is it is being done in
the Civil Rights Division. Is that correct?
Attorney General Holder. It is being what?
Mr. Issa. It is being done under the Civil Rights Division.
Attorney General Holder. No, it is being done by the Civil
Rights Division, the Criminal Division, the FBI, and the
Inspector General of the Treasury Department.
Mr. Issa. Why would it not be appropriate to be done under
Public Integrity, which is an organization you once were very
involved in, that, in fact, is sort of considered to be one of
the premiere? And why would they not have the lead?
Attorney General Holder. Well, the Public Integrity Section
is involved.
Mr. Issa. And would it appropriate for them to have the
lead since ultimately the actions of Lois Lerner and others
clearly go to the question of public integrity?
Attorney General Holder. I mean, it is hard to say who
precisely has the lead. I mean, as I have been briefed on this,
the person that----
Mr. Issa. Well, you have never told us who is doing it, so
it is kind of hard for us to know who has the lead, too.
Attorney General Holder. Well, no. As I said, Criminal,
Civil Rights, FBI, Treasury IG. As I look at the investigation
and think of who is in the lead, I think of the Criminal
Division as having the primary responsibility. And I talk to
the Assistant Attorney General of the Criminal Division, but
the people who are doing the work on the ground for the
Criminal Division are the people from the Public Integrity
Section.
Mr. Issa. And do you have access to 6103 information in
order to further your investigation?
Attorney General Holder. Tax information?
Mr. Issa. As necessary. Have you been granted as necessary
to tax information that would allow you to know the individuals
that were targeted and so on?
Attorney General Holder. Well, I am not sure I have had
that degree of granularity, but I have access to tax
information pursuant to the investigations that we conduct.
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Issa. Thank you.
Mr. Goodlatte. The Chair recognizes the gentleman from
Tennessee, Mr. Cohen, for 5 minutes.
Mr. Cohen. Thank you, sir, and, General Holder, I have
great regard for you, but I have got some questions. We will do
a lightening round if you do not mind because I have got a lot
of issues, as you well now.
First of all, is all politics is local. Shelby County,
Tennessee, Memphis, has an election coming up. Early voting
starts April 16, a primary election and then a general election
in August. We have had a whole list of problems with the
Election Commission. We have written you over the last couple
of weeks, Pastor Kenneth Whalum in Memphis and myself. And we
will have a letter, which my staff member will give to one of
your staff members.
We would just like to have your assurance that you will
look into having monitors because there have been elections
thrown out because they let people vote that should not have
been allowed to vote in certain elections. And people have been
refused the right to vote and all kinds of problems. Can you
assure us that you will looking into having monitors in Shelby
County to see that the elections are done fairly?
Attorney General Holder. We will look at that. In fact, I
think we received a letter from you last week regarding an
upcoming election in Shelby County, and we are reviewing that
information. But we will look at anything else that you provide
to us.
Mr. Cohen. Thank you. Well, Pastor Whalum had called up,
and he has been speaking to an individual in your office, and
he had not gotten the letter. And it has been 2 weeks, and
going through the legislative liaison sometimes take time. But
thank you.
Going to policy, as you well know, I am very concerned
about our drug policy in our country and the way it affects
minorities and the way it takes away people's liberties by
incarcerating them. I appreciate what you have done, and some
of the statements you have made have been most forward moving,
and I have appreciated them. But you recently talked about
changing marijuana from Schedule 1 and said you would work with
Congress, and Congress should take the lead.
Let me suggest to you that it is my understanding under
Title 21 that you have the authority to initiate a request to
the Secretary of Health and Human Services to do a study to
look into marijuana and Schedule 1, and that you could then
change it. In my humble opinion, and I think the majority of
the people in this country, there is no way that marijuana
should be Schedule 1 because it is not in the same class as
heroin and LSD as it in the Code, which breeds contempt for our
laws.
And there is certainly a medical basis. Dr. Sanjay Gupta
has shown this in his broadcasting that people have voted in in
20 States for multiple sclerosis, for children with epilepsy
and seizures, so it has medical benefit. And to be Schedule 1
it says it has no medical benefit. Well, that is just
fallacious. And the fact that it says that there is a high
susceptibility or likelihood of abuse, it is nothing like
heroin. That is absurd.
So I would like to ask you, why will you not act, as the
President suggested, and I predict Congress will not act in
this area because Congress is generally like tortoises. Until
it is really clear, they are not going to put their head out
there. But the Administration has acted on the Immigration Act
and the Environment Policy Act, and wages, and minimum wages,
et cetera. Why will the Administration not act with the pen and
the phone to help people out with taking this out of Schedule 1
so it can be studied because we are all in favor of research?
Attorney General Holder. Well, I think that we actually
have acted in a responsible way in how we have made the
determination, how we are going to use our limited resources.
The policies that I have announced as part of the Smart on
Crime initiative, the directions that I have given to people in
the field I think reflect a sensitivity to, again, the resource
restraints that we have, the division between Federal and local
law enforcement responsibilities. And I think that we have
acted appropriately.
Mr. Cohen. And those areas you certainly have, but on
Schedule 1 all you have to do is to ask the Secretary to make a
scientific and medical evaluation, and after that then you can
go further and make a determination on whether it should be
Schedule 1. Schedule 1 says you cannot do any research on it.
Why will you not ask the Secretary under Title 21, Chapter 13,
to initiate that program to get marijuana out of Schedule 1? It
is obviously not Schedule 1.
Attorney General Holder. Well, what is obvious to one is
perhaps not to another. I think, as I said, that given the
responsibilities that I have----
Mr. Cohen. Well, let me ask you this. The Secretary would
make that study to determine it. Why not initiate the
opportunity for the Secretary to make the study and base it on
science? And until you do that, it is not going to happen.
Attorney General Holder. Well, as I said, within the world
in which I have primary responsibility, I think we have acted
in a way that is appropriate.
Mr. Cohen. In those areas you have. ``The Attorney General
shall before initiating proceedings under Subsection A to
remove a drug or other substance entirely, shall request from
the Secretary a scientific and medical evaluation.'' That is
all you have to do is request it. That does not take away from
your limited resources.
Attorney General Holder. Well, as I said, I am satisfied
with what we have done.
Mr. Cohen. Commutations. You know I am interested in those
issues as well. Have you looked at having a group of
commutations to people who were convicted under crack, under
the old determination of 100 to one instead of the 18 to one
because of the fairness in sentencing law, and having all of
those people in a group commutation be put forward?
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Cohen. Can he answer the question?
Mr. Goodlatte. The Attorney General will be permitted to
answer the question.
Attorney General Holder. Well, I do not think that we would
be looking for group commutation. We would be looking for
individuals who would be deserving of clemency or commutations
given the nature of their conduct, their lack of ties to
violence or to drug dealing gangs or cartels. We have begun an
initiative to identify additional clemency recipients. This is
something that I know is important to the President, and we are
trying to come up with ways in which we can make individualized
determinations about who should receive clemency.
Mr. Cohen. Thank you.
Mr. Goodlatte. The Chair recognizes the gentleman from
Virginia, Mr. Forbes, for 5 minutes.
Mr. Forbes. Thank you, Mr. Chairman. And, Mr. Attorney
General, thank you for taking time to be with us today. I think
it comes as no surprise that a great many members of this body,
I think, a great many individuals across the country believe
and are very concerned about the overreach they perceive coming
from your office, the IRS, and the White House. And we had
perhaps a suggestion today that the House Budget may in some
way curtail that. If, in fact, that is the case, then many of
us who were going to vote for that budget will now not just
vote for it, but embrace it wholeheartedly because we get so
frustrated in not being able to get answers and to control some
of that overreach.
One of the areas is what you have been just talking about,
the clemency situation and pardons. And I know your Deputy
Attorney General, Mr. Cole, on January 30th actually solicited
petitions for pardon and for clemency in the speech that he
gave to the New York State Bar Association. And he referenced
the fact of overcrowding in our prisons. He also then mentioned
that some of these individuals are truly dangerous people who
threaten the safety of our communities and need to be taken off
the streets for a long time.
But I guess my first question is, can you give me any
precedent of previous Attorneys General's Offices who have
solicited petitions for pardons or clemency limited to a
particular category of crime? In other words, he did not
mention individuals who might have been convicted of white-
collar crime, or campaign finance laws, or a host of other
areas that have been overcriminalized, who also do the
overcrowding that we are very concerned with, but have a much
lower recidivism rate.
Attorney General Holder. Well, we have a Pardon Attorney's
Office that deals with a whole range of Federal crimes for
which people have been convicted and then seek relief.
Mr. Forbes. I understand that, but the concern for us is he
actively was soliciting. He was actually asking the Bar
Association to bring forward those petitions, but he only
talked about drug offenses. He did not mention any of those
others. And my question is, is there any precedent that you
know of that any other Administration has ever solicited
petitions for clemency or pardon limited to one particular
category of crime?
Attorney General Holder. I think what the Deputy Attorney
General was responding to, and which I support--I am not
putting it on him; I support this--is that we are dealing with
a particular problem, and that is I think the pendulum swung a
little too far in the 80's. I mean, I was the U.S. attorney
here in Washington, D.C. when this was the murder capital of
the country. And we went, I think, a little too far with regard
to some of the sentences----
Mr. Forbes. Can I ask you about that then, if I can,
because one of the things he goes on to list is this. He says,
``We're looking for petitions for individuals who had,'' and
these are his quotes, ``nonviolent, low-level drug offenders
who were not leaders or had significant ties to gangs or
cartels, without an extensive criminal history, who face life
or near life sentences.''
And my question to you is, give me an example of someone
who would fall in that category, because as I am sure you know,
under 183553(f), that category would not have been subjected to
mandatory minimums anyway. And that was put into law in 1984,
and prior to that time anybody convicted would be subject to
parole. So give me an example of someone who would have been a
nonviolent, low-level drug offender, not a leader or involved
in organized gangs or cartels, no extensive criminal history
who would have been facing a life or near life sentence.
Attorney General Holder. A drug mule who would bring drugs
from New York and got stopped at the bus terminal here in
Washington, D.C. with a whole bunch of drugs in a bag could get
charged not only with the possession of those drugs, which
would have resulted in a huge sentence, but could have been
charged with as being part of a conspiracy with all of the
drugs that were involved with that conspiracy. And although
that person did not engage in a violent crime and was nothing
more than a drug mule, could have gotten a life sentence.
Mr. Forbes. Well, he could have, but he would not have had
a mandatory life sentence, would he? And my final thing, Mr.
Attorney----
Attorney General Holder. Well, all right, if you get 60 or
70 years, that is not technically a life sentence----
Mr. Forbes. Well, Mr. Attorney General, my time is about to
expire.
Attorney General Holder. That, in effect, is a life
sentence.
Mr. Forbes. But here is my question.
Attorney General Holder. Which is why it is a life sentence
or near life sentence.
Mr. Forbes. Is it not true the prosecutor, the jury, and
the judge who were actually handling that case would have had a
much better opportunity to determine that sentence than
somebody in your office 5 years down the road?
Attorney General Holder. Well, except that the jury and the
judge's hands were tied at that time by the sentencing
guidelines or by mandatory minimums that were tied to the
amounts that were involved as opposed to the conduct that a
particular person engaged in. And that is the wrong that we are
trying to redress.
Mr. Forbes. Well, I think if you look again and give me
some examples--I know my time is about to expire--that would
not have complied under 183553(f), which would have gotten them
out of those mandatory sentences. And with that, Mr. Chairman,
I yield back.
Mr. Bachus [presiding]. I thank the gentleman from
Virginia. At this time we recognize Mr. Johnson, the gentleman
from Georgia.
Mr. Johnson. Thank you, Mr. Chairman. General Holder, good
to see you today, sir. The U.S. has the highest incarceration
rate in the world, and $27.4 billion is your budget request for
the Department of Justice for 2015. And $8.4 billion of that
$27.4 billion is for Federal prisons and detention facilities,
is it not?
Attorney General Holder. I believe that is correct. I do
not know.
Mr. Johnson. So about a third of your budget is to
incarcerate people at the highest rate in the world, not just
the civilized world, but in the world. That is disturbing. And
of the people who are incarcerated, about 40 percent of them
are African-Americans, is that a fact? Would you disagree with
that?
Attorney General Holder. I think that number is about
right. I do not have the precise number.
Mr. Johnson. And about 20 percent are Hispanics.
Attorney General Holder. I believe that that is also
correct.
Mr. Johnson. Yes. But now, has that line item in the
budget, that $8.4 billion for Federal prisons, has it been
increasing or decreasing?
Attorney General Holder. It has been increasing. You are
correct that about a third of our budget now goes to our Bureau
of Prisons, and given the state of our system, that is
deservedly so. We have to support the people who work in those
facilities. But as we spend more money as it has increased over
the years, it means that we have less money to hire agents,
prosecutors, or to provide grant money to our State and local
partners. There is a finite amount of money that we have, and
the more and more that goes to our Federal Bureau of Prisons,
the less we have to do all the other things that people want
the Justice Department to do.
Mr. Johnson. And as it goes to the Federal Bureau of
Prisons, what percentage of those funds go to private for-
profit detention facilities?
Attorney General Holder. I do not know the number of that,
but we can get you a percentage.
Mr. Johnson. Approximately, would it be about a third or a
fourth, half?
Attorney General Holder. I simply do not know. I will have
to get you that information. I do not know.
Mr. Johnson. I think that is pretty important. Do the
private for-profit facilities house Federal detainees and
inmates at a higher cost than the Federal Government can do it
or at a lower cost in general?
Attorney General Holder. Again, I am not just familiar with
what our relationship is in terms of numbers or the funding
stream that goes to any private facilities that we might use. I
just do not know the answer to that.
Mr. Johnson. Well, let me ask you this. Your agency is
responsible for investigating and prosecuting not just blue
collar criminals, but white-collar criminals as well. But with
the white-collar criminals, corporate theft, let us take, for
instance, those corporations that have a much greater ability
to fight back because they have resources. Has the fact that
your Agency's budget been trimmed over the past 3, 4, 5 years,
this trimming of your budget or cutting of it actually, has it
affected your ability to go after these corporate criminals?
Attorney General Holder. I would say to date, no. But I
will tell you that if sequestration were to reappear in 2015,
'16, whenever it might show up again, the capacity of the
Justice Department to do that which the American people expects
us to do from a range of things, from national security, to
white-collar enforcement, to violent crime enforcement would be
negative impacted. We have to at all cost--at all cost--avoid
the mistake that was sequestration.
Mr. Bachus. I thank the gentleman from Georgia. And at this
time we will hear from the gentleman from Iowa, Mr. King, for 5
minutes.
Mr. King. Thank you, Mr. Chairman. Attorney General, thanks
for your testimony. I appreciate you coming here. I recall a
previous exchange in a previous hearing between us, and I
believe I asked the question to the effect of your priorities,
are they directed by the President into your office or are you
an independent department. And I believe your response was
generally I am independent. I do not take direct direction from
the President, and it is your job to provide equal justice
under the law. That would be generally the response that I
recall. And I note you are nodding your head in relative
agreement.
Attorney General Holder. I have been here too long. You
guys can quote too many things that I have said previously,
but, yes. [Laughter.]
I think that is right. That is right.
Mr. King. Well, and I want to make sure I represent it
accurately. I think that is an appropriate response.
Attorney General Holder. That is fine. That is fine.
Mr. King. And so, I would like to just go through a list of
some of the things that pop into my head that I am thinking
about here. One of them is relatively new. It has been back in
the news fairly recently, and that is the Senator Ted Stevens
issue. And I understand that that prosecution took place before
you took office, but it has been reported as recently as March
that an FBI agent was severely disciplined, and that discipline
was imposed for improper actions in the investigation and
prosecution of Senator Ted Stevens.
Now, I think it is clear that it is very likely he lost his
Senate seat over that investigation, over that conviction, and
then subsequently was killed in a plane crash. That is one
piece about the discipline within the FBI that I would like to
hear about.
Second is, the overreach by allegedly Carmen Ortiz in the
case of Aaron Swartz, who committed suicide. The third one
would be we have seen as the knockout game has been reported at
least in the news to be primarily Black on White crime. I do
not know of any prosecutions there except for the Federal
investigation and the prosecution of Conrad Barrett, who was
the anomaly as far as I am reading the news, as a White on
Black crime of the knockout game.
Next, Dinesh D'Souza allegedly transferred $20,000 that
showed up in a U.S. Senate campaign targeted for this
investigation. I would presume there are thousands in America
who are likely engaged in similar acts are unprosecuted.
Governor Bob McDonnell for the charges brought against him. Now
five former U.S. attorneys general have come out in Virginia
and said they think this is overreach and outside the
definition of the law. And then I am thinking about Governor
Chris Christie, who, when the situation known as Bridgegate
came up, within a week there were Federal investigators
investigating the Hurricane Sandy issue.
Now, those are just things that I put down here while I am
sitting here listening to the testimony. Here is the other
side. Black Panthers' prosecution is cancelled about the time
you took office. Tom Perez, the Assistant General Attorney at
the time, now Secretary of Labor, sat just nearly where you are
and said he had provided the lowest penalty allowable under
law. We know that was not true. It was the smallest de minimus
penalty provided under law.
You have heard Jim Sensenbrenner bring up the James Clapper
issue in his testimony, the conflicting testimony under oath. I
am thinking of another governor, Governor John Corzine, a
billion dollars missing in Global Crossing. I do not know of a
prosecution there that is taking place. Lois Lerner, I think
she would be a candidate.
Then I am thinking of entire classes of people that have
been exempted by this Administration down to the point of I
understand this is immigration enforcement. However, 99.92
percent of those who have been removed are not removed because
they are unlawfully present. Only .08 percent are for that
narrow little reason because classes of people have been
created by this Administration exempted from the law, at least
in fact.
And then marijuana companies exempted from enforcement of
the law as well as essentially a suspension of the Federal
enforcement of marijuana laws. We have talked about DOMA. I
take us to voter fraud and the Texas issue where Texas says I
want a voter ID. They get labeled as a poll tax and a racist
plot.
My question really is, have you prosecuted anyone in this
Administration? Have you impaneled a grand jury, have you
investigated anyone in this Administration, because it looks to
me that those folks that are on the other side of the aisle are
getting extra scrutiny, and those on your side on your aisle
are getting no scrutiny.
Attorney General Holder. First, I am not going to comment
on any cases that are pending. I will simply say that we have
followed the facts and the law in making our prosecutive
determinations and making our investigatory decisions. This is
an Administration, this is a Justice Department that I have
run, and I am proud of. The men and women who are the career
employees in the Department for lesser periods of time make
their decisions based only on the facts in the law and conduct
themselves in the way that is in the best traditions of this
Department.
And I will put my record up against any other attorney
general, any other Justice Department. And any hint that we
have engaged in anything that is partisan or inappropriate in
nature, I totally 1,000 percent reject.
Mr. King. But you have not really responded to the question
of whether you have investigated or----
Mr. Bachus. I thank the gentleman.
Mr. King [continuing]. Or indicted a member of the
Administration.
Mr. Bachus. Mr. King----
Mr. King. That would be an unresponsive response I would
assert.
Mr. Bachus. Time has expired. Thank you. At this time, I
would recognize the at large Member from Puerto Rico, Mr.
Pierluisi, for 5 minutes.
Mr. Pierluisi. Thank you, Mr. Chairman. It is good to see
you again, General. I have two questions. I would like to ask
them both, and then give you an opportunity to respond.
The first issue is DoJ's response to drug-related violence
in Puerto Rico. The Consolidated Appropriations Act approved in
January requires ONDCP to coordinate the preparation and
publication of a Caribbean border counter narcotics strategy
with a focus on Puerto Rico and the USVI. The strategy will
outline the steps that the Federal Government is taking and
recommend additional steps it should take to reduce the supply
of drugs entering Puerto Rico and the USVI, and to lower
violence associated with the drug trade in the two territories.
Now, a strategy is essential, but it is not enough. The
strategy must be implemented with the right resources and
personnel. I have made no secret of the fact that I think DoJ's
response to the crisis in Puerto Rico has not been sufficiently
robust. Unlike DHS, DoJ has been reluctant to surge personnel
to Puerto Rico. At the same time, DoJ does deserve credit for
executing an MOU with the Puerto Rico Department of Justice so
that certain crimes that would otherwise be tried in State
court are tried in Federal court instead, often using State
prosecutors deputized by DoJ for that purpose.
So my first question is, are you satisfied DoJ has the
appropriate level of personnel from the DEA, FBI, ATF, and the
U.S. Attorney's Office in Puerto Rico to combat trafficking and
violent crime in light of the severity of the problem there?
The second issue I am raising involves again the
Consolidated Appropriations Act because it includes a provision
which I fought long and hard to secure that provides funding to
the Puerto Rico Elections Commission to conduct the first
federally sponsored plebiscite in Puerto Rico's history. This
language is a response to a 2012 plebiscite in which a majority
of voters said they do not want Puerto Rico to remain a
territory, and more voters expressed a desire for statehood
than any other option.
As you confirmed to Mr. Serrano at a hearing last week, the
law requires DoJ to ensure that voter education materials and
the ballot prepared by the Elections Commission in Puerto Rico
are compatible with U.S. law and policy. The law also states
that the purpose of the plebiscite is to resolve Puerto Rico's
status once and for all.
I have introduced legislation that proposes to structure
the federally sponsored plebiscite as a straightforward vote on
the admission of Puerto Rico as a state as was done in Alaska
and Hawaii. This structure is eminently fair. Those who support
statehood can vote yes and those who oppose it for any reason
can vote no. My bill has 130 co-sponsors and a Senate companion
bill has been introduced. As I see it, structuring the
plebiscite as a vote on Puerto Rico's admission as a state is
consistent with U.S. law because statehood is a
constitutionally valid status that would resolve Puerto Rico's
political future. Do you agree?
Attorney General Holder. Well, with regard to the question
of resources, I think that, you know, given the flows that we
see of drugs through the Caribbean, through the Virgin Islands,
through Puerto Rico, the levels of violence that we see in
Puerto Rico, there is clearly a need for additional resources.
We are a resource strained institution, we simply are. And we
have tried to the best we could.
I was in Puerto Rico in July of 2013 and announced a
consent decree with the police department there. I met with the
governor to try to talk about ways in which we might be of
greater assistance, and we are trying to do what we can. But
unfortunately, we have to be creative. I wish I had more
resources, and if we did those would be places where I think we
could make great use of those additional resources.
When it comes to the voting initiative, as I indicated, I
guess, to Congressman Serrano, the role of the Department is
really limited to reviewing, I guess, those documents and
determining whether the documents put out by the State Election
Commission of Puerto Rico are compatible with the Constitution,
the laws, and policies of the United States. There is a $2.5, I
guess, million carve-out Byrne JAG grant for this objective,
but we are not really engaged in the, I would say, the guts of
the effort as much as just to oversee to make sure that the
materials are appropriate that are handed out.
Mr. Pierluisi. Can I quickly say, but would you not agree
that if the vote involves an up or down vote on statehood, that
you would have to say that that is consistent with U.S. law?
There is nothing wrong with that in terms of U.S. law and
policy?
Mr. Bachus. I will give the Attorney General----
Attorney General Holder. If that were an issue that were
presented to us, I mean, that is one that obviously we would
seek to answer. But the task that we have been given is really
to just make sure that these materials are consistent with our
constitutional laws and policies. That is the only involvement,
I think, that we have, at least at this point.
Mr. Pierluisi. And would that----
Mr. Bachus. I thank the gentleman from Puerto Rico. And at
this time I will recognize the gentleman from Arizona, Mr.
Franks, for 5 minutes.
Mr. Franks. Well, thank you, Mr. Chairman. And, General
Holder, thank you for being here. General Holder, you have
risen in law enforcement to the very pinnacle of that
profession, and those of us here on this panel have spent a lot
of our lives in search and in the cause of the right laws and
respect for the rule of law. And I would hope that there would
be, in light of that, on both our parts, a strong consensus and
a common respect for this thing called the rule of law. And yet
earlier, Steve Chabot, Congressman Chabot, mentioned that the
Affordable Care Act's employer mandate was delayed by this
Administration for a year despite statutory language
instructing that penalties associated with the mandate ``shall
apply''--I am going to say it very clearly--``shall apply 2
months beginning after December 31, 2013.''
Now, your testimony was that the Treasury Department had
come up with some legal interpretation that that did not apply.
And I do not know whether that is dumbfounding or just
heartbreaking. I mean, I really do not. If we cannot read that
language clearly, then I think we are in trouble. So my next
question to you may be superfluous. It may be a hopeful and
hopeless exercise here.
But my question is the Religious Freedom Act, Religious
Freedom Restoration Act, declares that the Federal Government
may not substantially burden a person's exercise of religion
unless it had a ``compelling reason'' to do so. Now, you and I
know what those words mean. So my question is, are the Federal
agencies like yours or Federal agencies in general bound by
statutory requirements put in place by Congress, like the
Religious Freedom Restoration Act requirements I just
described? Are they bound by those requirements put in place by
Congress when they promulgate regulations?
Attorney General Holder. Sure. I mean, if there are
statutory mandates from Congress, those are the kinds of things
that have to be used when we are proposing rules, regulations,
things of that nature.
Mr. Franks. All right. Then my next question is, did HHS
consider the Religious Freedom Restoration Act and comply with
it when it promulgated the HHS mandate which requires many
religious employers to arrange and pay for employee health
insurance that covers abortion-inducing drugs, contraceptives,
and sterilization? Did they comply with that statute?
Attorney General Holder. Well, I think the way in which the
act was put together is consistent with the act, the way in
which the religious organizations could express their concerns
and the options that they had. I mean, this is something that
is actually the subject matter of an ongoing case, and I do not
want to get too much into it. But I think that the policy that
the Administration has taken is consistent with the act that
you referenced.
Mr. Franks. I do not know. I mean, it sounds like we are on
two different planets if that is the case. But let me ask you
then, did the Department of Justice, including you or the
Office of Legal Counsel, before any of the cases came about--I
am not asking you to touch on any existing litigation--but
before any of this occurred, did you provide any legal
opinions, written or oral, regarding the religious employer
exception to the HHS mandate?
Attorney General Holder. Well, I had said previously the
Department generally does not disclose the----
Mr. Franks. But before all of that. I am trying to get
ahead of that because we wrote you a letter like this, and the
response we got back, we could not have been able to tie the
two together it was that unresponsive.
Attorney General Holder. I am sorry, ``the response did
not?'' I did not hear you. You said----
Mr. Franks. We wrote you a letter and your response was a
total non-response, much like this. I mean, I am saying before
the litigation ever occurred, did you ever come up--it is not a
hard one, Mr. Attorney General.
Attorney General Holder. It is not a hard answer. The
Department does not generally disclose the content of
confidential legal advice to the President or other
governmental decision makers. It is something that not only
this Department does, but other Departments of Justice. It is a
policy we have always followed.
Mr. Franks. Well, I am not countering that policy, but
asking you if you had done anything prior to that that were
legal opinions regarding the religious employer exception
before any case was filed. I mean, I do not think you are going
to answer the question. But could you provide any copies of any
opinions addressing the application of Religious Freedom
Restoration Act to the Federal Government, including any
opinions by the Office of Legal Counsel, that address the need
or a lack thereof for the religious employer exception? Do you
have anything like that you could provide to us that would not
be related to any litigation, but that would give us some idea
of what your opinion of this statute is?
Attorney General Holder. Well, as I indicated, it is not
our practice to disclose the content of the legal advice that
we give. To the extent that there are legal questions, you
could ask HHS what was the basis for their legal determination
to promulgate a regulation that is of concern to you.
Mr. Bachus. I thank the gentleman----
Mr. Franks. Unfortunately religious--thank you, Mr.
Chairman.
Mr. Bachus. I thank the gentleman from Arizona. At this
time, I will recognize the gentlelady from California, Mrs.
Chu, for 5 minutes.
Ms. Chu. Thank you, Mr. Chair. Mr. Holder, the DoJ's
existing guidance on racial profiling issued in 2003 outlines
provisions to ban some forms of profiling. However, the
guidance does not apply to profiling based on religion and
national origin. This is problematic because profiling based on
religion or nationality is significantly increasing.
Now, it is my understanding that DoJ has been engaged in a
review of its guidance throughout the past few years. In April
2012, over 70 members of the House and Senate sent you a letter
about this issue. When you testified before this Committee last
year, you indicated that DoJ was nearing the end of the review,
but still we have yet to see the updated guidance. What is the
status of the review, and how will you address the issue of
racial profiling based on religion and national origin?
Attorney General Holder. Well, that review has, in fact,
been underway for, as you say, an extended period of time.
Well, I will say just maybe a little too long, but I think we
are near the end of that process. We have made a great deal of
progress, and my hope would be that we be able to complete the
review in the relatively near future, and that we will be in a
position to share with Members of Congress and the American
people the result of that review. This is something that will
happen on my watch.
Ms. Chu. Do you have a time? Exactly when will this happen?
Attorney General Holder. I am not sure that I can say
exactly when, but I can say that we are far closer to the end
now than we were before. I mean, this has been a painstaking
process, but I am hopeful that we will be at an end relatively
soon.
Ms. Chu. As you know, many people are anticipating it, so
we look forward to this. I understand that the racial profiling
guidance includes a broad exception for counterterrorism
investigation and national security. Yet there have been
reported instances where the FBI has targeted mosques or
profiled Muslims for little reason other than their faith. This
occurred in San Francisco under the so-called Mosque Outreach
Program in which the FBI collected information on the religious
views and practices of Muslims in northern California and
shared their surveillance with other government agencies, but
without any apparent evidence of wrongdoing to target it.
So of course it would be a great step forward if the DoJ
guidance on racial profiling were amended to include a ban on
discrimination on the basis of religion or national origin. But
I am concerned about the national security exception eroding
any such protections. Will the revisions under discussion
include any changes to the national security exemption, and how
will the DoJ ensure that the rights of innocent Americans are
protected?
Attorney General Holder. Well, I mean, I will say that it
will be for others to decide whether the changes are
appropriate, go far enough, do not go far enough. But the
national security exception has been the focus of the effort
that has been underway, as I said, for this extremely long
period of time. And once announced, that will be the primary
topic that will be discussed with regard to what the Justice
Department has responsibility for.
Ms. Chu. Okay. Well, switching gears, I would like to ask
about the DoJ's Executive Office of Immigration Review. Mr.
Holder, since so many non-citizens in immigration courts do not
have attorneys and lack a basic understanding of the
immigration court processes, what steps are the Executive
Office of Immigration Review proposing to give non-citizens
better access to information so they can move through court
proceedings more expeditiously without sacrificing due process?
Attorney General Holder. We are trying to make our EOR
system better. We have a backlog of about 358,000 cases. It is
a 56 percent increase from 2009. Our budget request asks for
additional immigration judge teams so that we can get this
backlog down to a better level. We are also trying to come up
with ways in which make sure that people who find themselves in
the system have adequate representation, doing a variety of
things in that regard. We are trying to deal with the problem
of unaccompanied minors. There are a whole range of cases, a
whole range of issues, that we are trying to deal with.
We are trying to be, again, as creative as we can, though
we simply need at some level, we just need more money to put in
place these teams to reduce the backlog, to otherwise find ways
in which we can come up with this program to deal with people
who have mental health issues, to deal with unaccompanied
minors, and then deal with the other problem of people who
appear and do not have either counsel or do not have adequate
counsel. These are all issues that are problematic.
And I point out again the need for a comprehensive
immigration reform package that would deal with a whole variety
of other things, but would help us a great deal with regard to
what the Justice Department component is of the problem.
Ms. Chu. Thank you. I yield back.
Mr. Goodlatte [presiding]. The Chair thanks the
gentlewoman, and recognizes the gentleman from Texas, Mr.
Gohmert, for 5 minutes.
Mr. Gohmert. Thank you, Mr. Chairman. General Holder, back
April 27, 2011, at my request, the Chairman of this Committee,
Lamar Smith, sent a letter to the Justice Department asking for
the documents in the Holy Land Foundation that had been used to
prosecute them. And since then we have had an ongoing back and
forth, most recently in a letter June 13, 2013, asking for the
documents. And I was fairly specific to make it clear that I
got the documents that the Department of Justice handed over to
people convicted of supporting terrorism.
They are terrorists. We have given them the documents, the
Justice Department has, and my information is that they have
now been put on disk and sent to Illinois. So we know they are
easily provided, just not to Members of Congress. But in the
response after 7 months approximately from my letter in June, I
am told, well, here is a link that will have nearly 500
publicly available exhibits that were admitted into evidence,
and then was also told to check the public access to court
electronic records.
Attorney General, I have read in the 5th Circuit opinion
about 9,600 summaries of transcripts of conversations that the
Justice Department had that were made available to attorneys
for the terrorists. I still do not understand why your
Department can provide documents to terrorists' lawyers, to
four out of eight of the terrorists, and not provide them to
Members of Congress.
All I am asking again is could we please get the documents
that have been put on disks of the 9,600 summaries of
transcripts and the documents that are produced to the
terrorists and not some link, but documents that you made
available or your Department made available to the terrorists.
I renew my request.
Attorney General Holder. Well, I think what we promised to
do is to provide you and your staff with----
Mr. Gohmert. Sir, I have read you what your Department
promised, and it is inadequate. And I realize that contempt is
not a big deal to our Attorney General, but it is important
that we have proper oversight.
Attorney General Holder. You do not go there, buddy. You do
not want to go there, okay?
Mr. Gohmert. I do not want to go there?
Attorney General Holder. No.
Mr. Gohmert. About the contempt?
Attorney General Holder. You should not assume that is not
a big deal to me. I think that it was inappropriate. I think it
was unjust. But never think that that was not a big deal to me.
Do not ever think that.
Mr. Gohmert. Well, I am just looking for evidence, and
normally we are known by our fruits. And there been no
indications that it was a big deal because your Department has
still not been forthcoming in producing the documents that were
the subject of the contempt.
Attorney General Holder. You never wanted the documents.
Mr. Gohmert. But let me move on. There have been other
questions asked about----
Attorney General Holder [continuing]. With regard to
contempt. The documents that we were prepared to make available
then we are prepared to make available now that would have
obviated the whole need. This was all about the gun lobby and a
desire to have----
Mr. Gohmert. Sir, we have been trying to get to the bottom
of Fast and Furious where----
Attorney General Holder. That is what it is all about.
Mr. Gohmert [continuing]. People died, where at least a
couple hundred Mexicans died, and we cannot get the information
to get to the bottom of that. So I do not need lectures from
you about contempt----
Attorney General Holder. And I do not need lectures from
you either.
Mr. Gohmert [continuing]. Because it is very difficult to
deal with asking questions. As a former judge, I never have
asked questions of someone who has been held in contempt. We
waited until the contempt was purged and then we asked
questions.
Let me ask you, do you think someone who believes marriage
is between a man and a woman violates the civil rights of a
same sex couple?
Attorney General Holder. Somebody's personal belief?
Mr. Gohmert. Yes.
Attorney General Holder. No.
Mr. Gohmert. How about if they have a business and they
believe that?
Attorney General Holder. If they have a business? If a
business has a----
Mr. Gohmert. If it is a private business and the owners of
the private business believe marriage is between and a woman,
are they violating a same sex couple's civil rights, in your
opinion?
Attorney General Holder. Well, that obviously a matter that
is under consideration by the courts, and we have taken a
position on that. I would not want to get into something that
is, as I said, a pending matter.
Mr. Gohmert. Well, it is your opinion that matters on
whether you tell attorneys general how to act in the States or
how you approach businesses or individuals that have this
biblical view that the President had when he was a senator in
2008. So I thought it was rather important. Well, let me ask
you----
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Gohmert. Unfortunately.
Mr. Goodlatte. The Chair recognizes the gentleman----
Attorney General Holder. Good luck with your asparagus.
Mr. Goodlatte. The Chair recognizes the gentleman from
Florida, Mr. Deutch for 5 minutes.
Mr. Deutch. Thank you, Mr. Chairman. And, Mr. Attorney
General, thank you for being here. Under your leadership,
General Holder, the DoJ has reached historic settlements with
major banks and institutions. There is the $13 billion
settlement with JPMorgan for its packaging and reselling of
toxic mortgages leading up to the financial crisis. There was
the $25 billion agreement with the Nation's five largest
mortgage servicers for widespread foreclosure abuses. There was
another $2 billion settlement with JPMorgan for its role as
chief banker in Bernie Madoff's multimillion Ponzi scheme, and
a $1.9 billion deferred prosecution agreement with HSBC Bank
for laundering money for Mexican drug cartels and conducting
transactions with Cuba, Iran, Libya, and Burma.
But I want to return to something that Mr. Nadler brought
up earlier, and I would like to also return, I gather as has
been a theme this morning, to another hearing that was held
before this Committee, in this case 3 years ago when we first
learned that the DoJ was launching a billion dollar lawsuit
against Deutsche Bank and Mortgage IT for repeatedly defrauding
taxpayers when seeking insurance for bad mortgages. As you
know, that billion dollar suit was eventually solved in a $200
million settlement.
And we had an exchange that although it is awkward, I just
feel it is necessary to walk through. I had asked whether the
Department would pursue criminal charges that could result in
jail time for the heads of these larger banks and services, and
you responded that ``If there are individuals who have taken
actions that would warrant individual liability, that is
something that we would pursue.''
So I pointed out that under Sarbanes-Oxley, the statute
provided for knowingly make false claims, one would be subject
to fines of a million dollars, imprisonment of up to 10 years.
If the claims were willful, the violations were willful, fines
of $5 million and jail time of up to 20 years. And I asked if
that would be the basis for potential claims, to which you
responded, ``There are other statutes that we could bring, some
as old and tried and true as wire fraud and mail fraud. There
are a whole variety of tools that we have, including those that
you have mentioned, and we will try to make use of all of those
as we continue these investigations.''
I then asked that given the vast array of potential claims
that could be brought that would bring the potential of
criminal violations, when would we expect to see the cases
filed, to which you said, ``All I can tell you is we are
looking seriously. We are going to pursue them aggressively,
and as soon as we can make a determination and share that with
the American people, we will. The possibility that those cases
could be brought is certainly the case. We are in the process
of looking them, and it is possible that criminal prosecutions
will result.''
It is now 2014, and not a single high-level executive with
these financial institutions have faced criminal prosecutions.
In fact, many of the settlements that DoJ has reached with
these companies have absolved the individuals of ever answering
to criminal charges.
Now, the settlements that I referred to focused on actions
by individuals at firms whose actions nearly brought down the
United States economy. They are not minor infractions. They did
not happen by accident. And it is difficult to believe that
this illegal activity happened without the knowledge of any
executive at any of these financial institutions. Indeed, it is
difficult for many Americans to have full faith in our criminal
justice system when none of the principals, none of the
decision makers of these companies have been prosecuted, have
been taken to court, have been tried before a jury.
And I would just quote one more quote from Judge Jed
Rakoff, Senior U.S. District Court judge, who said, ``Companies
do not commit crimes. Only their agents do. And while a company
might get the benefit of some such crimes, prosecuting the
company would inevitably punish directly or indirectly the many
employees and shareholders who were totally innocent. Moreover,
under the law of most U.S. jurisdictions, a company cannot be
criminally liable unless at least one managerial agent has
committed the crime in question. So why not prosecute the agent
who actually committed the crime?''
We have seen many large settlements, General Holder, some
to resolve the claims of illegal actions. But as Judge Rakoff
points out, companies do not commit crimes, only their agents
do. And to date, we have not seen any criminal convictions of
executives in those companies. And I will ask what I asked 3
years ago. Is the Department pursuing or going to pursue
criminal claims against the people at these companies that
committed the crimes that were the basis of the large
settlements that were reached, the crimes that many Americans--
many Americans--are still recovering from today?
Attorney General Holder. Well, it is still the position of
the Justice Department that there is no institution that is too
big to prosecute, no person who is too important to prosecute.
As I indicated in a previous answer, there have been
individuals prosecuted from JPMorgan, Goldman Sachs, Morgan
Stanley Credit Suites, UBS, RBL Bank, ICAP, Galleon, SAC,
Stanford Financial Group, all cases that have been brought
against not those companies, but against individuals.
The $13 billion agreement that we worked out with JPMorgan
Chase has a carve-out that allows us to pursue criminal charges
against individuals. And so, when we have capacity to make
cases, we will make them.
Mr. Deutch. General Holder, but in all of those cases that
you listed, I appreciate those claims against individuals. But
to date, none of the executives, none of the decision makers at
any of these companies have been held accountable.
Mr. Collins [presiding]. The gentleman's time has expired.
The Chair now recognizes the gentleman from Ohio, Mr. Jordan.
Mr. Jordan. I thank the gentleman. Mr. Holder, I sent you
in the last several months six letters to you and agencies in
the Justice Department, specifically ATF and FBI, asking for
answers to basic questions--and I would stress ``basic
questions''--about your criminal investigation into the IRS
targeting of conservative groups, conduct that you called
outrageous and unacceptable last May, and the investigation
that you launched last May.
And we have had countless legal experts tell us that giving
answers to these questions, not what witnesses may have said,
not what they convey, not to questions you ask, just basic
information, that countless legal experts tell us this is more
than appropriate to get this kind of general, basic
information.
So I just want to ask you just four quick questions. Bill
Taylor, the attorney for Ms. Lerner, it has been reported in
the press that he indicated she actually sat down with an
interview at the Justice Department or with the Justice
Department. So I just want to know a few things. When did you
interview Lois Lerner, where did the interview take place, who
was the personnel who conducted the interview at the Justice
Department, and at any time during the interview did she
exercise her Fifth Amendment rights and refuse to answer
questions?
Attorney General Holder. Because this is an ongoing matter,
I am not going to answer those questions.
Mr. Jordan. You cannot even answer--well, let me ask you
this. Did you interview Lois Lerner?
Attorney General Holder. As I said, this is an ongoing
matter, and I am not going to comment on an ongoing matter.
Mr. Jordan. So her attorney has reported that you did. You
will not confirm that that, in fact, took place?
Attorney General Holder. As I said, I am going to talk
about an ongoing investigation. The Justice Department is not
in the habit of talking about who was interviewed----
Mr. Jordan. But this is part that always frustrates me. I
am not asking you to tell me what she said. I am just saying
did you talk to her. Just give me the date. Did you do it last
May when you started the investigation? Did you interview her
in June? Did you interview her in July? Did you interview this
January? When did you do it?
Attorney General Holder. Well, as I said, this is an
ongoing matter that the Justice Department is actively
pursuing, and as such, it would be inappropriate to comment on
what it is that we are doing.
Mr. Jordan. How is telling this Committee and, more
importantly, the American people, the date you interviewed Ms.
Lerner, if, in fact, you did that, and where that took place--
at her house, at the Justice Department, someplace you met? How
is that going to compromise an investigation?
Attorney General Holder. You do not understand the nature
of what it is that we are doing. You cannot because you are not
a part of the investigation.
Mr. Jordan. Well, what some of us have made a big issue
about is the fact Barbara Bosserman, who we have interviewed,
have told us that she is the lead investigator. You were
willing to tell Senator Cruz when he questioned you about that
fact. You were willing to tell him she is not the lead
investigator. So you were willing to give some specific
information about the process and who is conducting and who is
doing what, so it seems to me you opened the door to some of
these basic questions when you said she is not the lead
investigator on this investigation. So I am asking you just
basic things, too, like did, in fact, you talk to Lois Lerner,
or if it is not Barbara Bosserman who is the lead investigator,
who is?
Attorney General Holder. You seem to think a door has been
opened. I do not think any door has been opened at all, and I
think the answers that I have given are consistent with what I
have----
Mr. Jordan. Let me ask you about one other thing then. Did
someone from the Justice Department leak to the Wall Street
Journal that no criminal charges will be filed in the IRS
investigation case?
Attorney General Holder. I have no idea who told that to
the Wall Street Journal.
Mr. Jordan. This is from a January 13, 2014 report in the
Wall Street Journal. ``The Federal Bureau of Investigation does
not plan to file criminal charges over the IRS heightened
scrutiny of conservative groups, law enforcement official
said.'' Do you know who said that?
Attorney General Holder. No.
Mr. Jordan. Have you investigated who leaked that
information to the Wall Street Journal?
Attorney General Holder. Not to date.
Mr. Jordan. You have not? A year ago in front of the Senate
Judiciary Committee, you said this, ``We have tried more leak
cases, brought more leak cases during the course of this
Administration than any other Administration.'' So leaks are
pretty important to the Justice Department, and you have not
investigated the leak to the Wall Street Journal that no one is
going to be prosecuted in the IRS targeting scandal?
Attorney General Holder. If you look at all the leaks that
occur----
Mr. Jordan. No, I am asking about this leak. Have you
investigated this leak?
Attorney General Holder. Can I answer the question?
Mr. Jordan. I am asking you a specific question. You said
earlier you have not investigated it. I am asking you just to
confirm you have not investigated the leak to the Wall Street
Journal that no one is going to be prosecuted in the targeting
of conservative groups case with the IRS.
Attorney General Holder. As I said, if you look at all the
leaks that happen in Washington, D.C. in connection with a
whole variety of cases----
Mr. Jordan. Mr. Attorney General, with all due respect,
have you investigated that leak?
Attorney General Holder [continuing]. We have looked at--I
answered the question. We have looked at a number of cases. The
cases that we have focused on in terms of leaks have generally
been the ones that have dealt with national security. When I
talked about the bringing of more cases, those were national
security cases. When it comes to the disclosure of
investigative matters, that is something that is
reprehensible----
Mr. Jordan. Are you saying this is not important?
Attorney General Holder [continuing]. But it is not
necessarily something that we investigate in every instance.
Mr. Jordan. Just for the record, just for the Committee,
just for the American people, can you answer one more time,
have you investigated the leak to the Wall Street Journal that
no one is going to be prosecuted in the IRS investigation?
Attorney General Holder. Well, especially when you deal
with----
Mr. Jordan. It is a yes or no.
Attorney General Holder. No, no, I am not going to answer
that way. Especially when you deal with information that has no
basis in fact. What would be the basis if somebody is providing
information about a determination that has not been made?
Mr. Jordan. If I could real quickly, Mr. Chairman.
Mr. Collins. The gentleman's time has expired. The
gentleman from Louisiana, Mr. Richmond, is recognized.
Mr. Richmond. Thank you, Mr. Chairman. First, let me thank
you, Attorney General Holder and Secretary Duncan for your
support of the school discipline initiative, which I think is
going to do wonders in communities across the country and curb
our school to prison pipeline.
Let me start with something that is not necessarily under
your entire tenure, but it overlaps. And there was an article
that detailed more than 650 cases of misconduct in the last 12
years in the U.S. Attorney's Office with Federal prosecutors
and so forth, which highlights the fact that OPR falls under
you. And if you remember our issues in Louisiana, more
specifically, Eastern District with our U.S. attorney stepping
down, the first assistant, the second assistant.
We have asked for the report to be made public. It has not
been made public. And my question becomes your stance on the
Senate bill, which would put it under the Inspector General in
an independent area outside the Office of the Attorney General,
which we plan to file a corresponding bill. So could you give
me your feedback on that?
Attorney General Holder. I am not supportive of any action
that would put under the Inspector General that which now is
the responsibility of the Office of Professional
Responsibility. OPR has had, I think, a long and distinguished
history of looking at these matters, recommending where
appropriate punishment that has been carried out. They have a
unique expertise. There are specific matters that I think only
an OPR can handle. I have great respect for the Inspector
General's Office, but I do not think that the merger of those
functions would be in the best interest of the Justice
Department.
Mr. Richmond. Well, could I ask a question then? Why would
we not make the OPR reports and the findings of misconduct
automatically public when they conclude investigations and so
forth? So that would be my general question.
Attorney General Holder. Yes, and we are prohibited from
doing so by a number of things, but chiefly by the Privacy Act.
We do not have the ability because of the strictures of the
Privacy Act to make available or to make public some of the
findings we have done. We have tried to be more transparent
over the years in producing summaries of the reports that we
have made available. We sometimes share the reports with
Congress and then Congress has the capacity to do with the
report what it will in a way that we in the executive branch do
not.
Mr. Richmond. So if we request a report, we can get it?
Attorney General Holder. I believe that that is generally
true. A Committee Chair has to make the request.
Mr. Richmond. Okay. What about the findings of
prosecutorial misconduct or any prosecutorial infractions that
are reported to the State Bar Associations, but not reported
publicly? Can those be made public?
Attorney General Holder. I am not sure how individual bars
work or what we do with regard to referrals to the bars. I will
have to look into that.
Mr. Richmond. And let me just say, I am a lawyer, but
prosecutorial misconduct and things like that I think should be
public. And part of my concern today is that the Department of
Justice can leak and say whatever it wants when it wants. And
let us just look at the mayor's race in D.C., I am not
commenting on anybody's guilt or innocence, but to have your
name tied into a Federal investigation 3 weeks before your
election, and to say that it leads toward you I think affects
the electoral process.
And if our assistant U.S. attorneys can do things like
that, then I think they have to be held to the same standard
when they become the subject of an investigation, disciplinary
action, and so forth. I think we are on a very slippery slope
when we start leaking information right before election time
because we are influencing the election process.
Attorney General Holder. Well, what happened in Washington
was not a leak. It was a formal filing in public court about
where a case was, a plea that involved a particular person who
was involved with that person. And I understand your concern--
--
Mr. Richmond. But we do those under seal. We do a lot of
things under seal for a specific period of time.
Attorney General Holder. I understand your concern and the
criticism that has been leveled at that decision. But if you
look at it in reverse, if the Justice Department had put
something under seal and waited until the election was over and
then revealed the information, we would have been charged
potentially with withholding information that would have been
relevant for voters to have.
And so, what we do is simply bring the cases when they are
ready to go. And sometimes it is awkward, but it is the best
way in which to do these things, irrespective of what the
political fallout is going to be.
Mr. Collins. The gentleman's time has expired.
Mr. Richmond. Thank you, Mr. Chairman, and I would yield
back.
Mr. Collins. The gentleman from Texas, Mr. Poe, is
recognized.
Mr. Poe. Thank the Chairman. Attorney General, I sent you a
couple of questions that I will ask you again about. It has to
do with the trafficking statute in the United States that not
only prosecutes interstate, but international traffickers that
come into the United States.
Specific question, how many consumers/buyers have been
prosecuted by your office under 18 U.S.C. 1591, the trafficking
statute? Just the buyer, the consumer, the child abuser,
whatever you want to call them.
Attorney General Holder. Yes. We have, I think, statistics
that deal with prosecutions under 1591, but I do not think that
we break them down in the way that you have requested. I think
that we have an issue there with regard to our ability to give
you a precise number with regard to the specific category of
people that you have talked about. So I am not sure. As I said,
I think we can give you a general number about 1591, but I am
not sure that we can break it down into component parts.
Mr. Poe. I understand. Can you give me a number then of
total folks that have been prosecuted under that statute,
whether the trafficker or whether the buyer? Do you have that
number?
Attorney General Holder. I do not have that number in front
of me, but I will pledge to get that number to you in due time.
We will do that quickly. We will do that quickly.
Mr. Poe. All right. Thank you. I want to move over to the
issue of the NSA data collection. If I understand the law
correctly, NSA does their thing, and they may refer a case to
the Justice Department for prosecution. And they basically give
you the evidence to prosecute. Is that a fair statement of how
that works with the NSA?
Attorney General Holder. I am sorry?
Mr. Poe. The NSA does the investigation in a case,
terrorist case, for example, but if they want it prosecuted
they send it to your office and you prosecute the case. Is that
correct?
Attorney General Holder. NSA does not really do much in the
way of investigating. I mean----
Mr. Poe. The evidence that they obtain.
Attorney General Holder. Yes. We would do the
investigating, but we would----
Mr. Poe. You would investigate, but you would get
information----
Attorney General Holder. Yes, we get information from a
variety of places, including the NSA.
Mr. Poe. All right. On February the 4th, Deputy Attorney
General James Cole was here, and we talked about the massive
collection of NSA information on Americans. And I asked him the
question how many people have been prosecuted by the Justice
Department to be attributed to the NSA bulk data collection
program. And he said maybe one person. That was his testimony,
and I have it here. Would you agree or disagree with his
statement that only one person has been prosecuted based upon
that massive amount of information that has been collected or
not?
Attorney General Holder. I do not know the precise number,
but it is a small number. It is a small number.
Mr. Poe. So it could be just one.
Attorney General Holder. It could be. I just do not know.
Mr. Poe. A small amount----
Attorney General Holder. It is a small number.
Mr. Poe. Small amount of individuals. Moving over to
another issue regarding privacy, emails. Current law, as I
understand it, if a person has an email, that email if it gets
over 6 months old, is stored in the cloud, then the Justice
Department does not need a warrant to go in and retrieve that
email. Is that correct or incorrect?
Attorney General Holder. Yes, but that is not a policy I
think that we should continue.
Mr. Poe. All right. I am just asking. The Justice
Department does not need a warrant to obtain that email.
Attorney General Holder. Yes, I think that is true, but
what we have said is that policy, there needs to be a change
made so that warrants would be appropriate regardless of the
amount of time that has passed.
Mr. Poe. I agree with you on that that a warrant should be
imposed or required. Law enforcement goes into a person's
private email account no matter how old it is, but you get a
warrant from the Justice Department.
Attorney General Holder. Right.
Mr. Poe. Do you agree with that philosophy?
Attorney General Holder. It should not be a function of
time.
Mr. Poe. And we have legislation, bipartisan, pending on
that issue.
Attorney General Holder. Right.
Mr. Poe. The last question I want to ask you has to do with
the concept of domestic use of drones by law enforcement on
targeted surveillance. Right now my understanding is the FAA
makes the rules and regulations about who gets a drone, who can
use it for what purposes. Would you think it would be better
that Congress intervene and employ legislation safeguarding the
Fourth Amendment, right of privacy basically, on citizens, or
do you suggest as the Attorney General that the FAA still
control who gets a drone or not?
Attorney General Holder. Well, actually, I mean, within the
Department the only component in the Department that uses these
vehicles at this point is the FBI. The ATF is in the process of
working through to see if they want to make use of them. The
Inspector General has recommended that we come up with some
Department-wide policies about how these vehicles are used, and
I think that would be an appropriate thing to do. And we are in
the process of trying to work through what rules and
regulations would handle the use of these kinds of vehicles.
Mr. Collins. The gentleman's time has expired.
Mr. Poe. Thank you.
Mr. Collins. The gentleman from New York, Mr. Jeffries, is
now recognized.
Mr. Jeffries. Thank you, Mr. Chair, and thank you, Mr.
General, for your appearance here today. Earlier today during
this hearing in an exchange with my one of my colleagues
related to concern about the Affordable Care Act, you were
characterized as the President's legal advisor. Do you recall
that characterization?
Attorney General Holder. I think so, yes.
Mr. Jeffries. I think it is an erroneous characterization.
Now, let me ask you a question about that. Are you familiar
with the title of White House counsel, Mr. General?
Attorney General Holder. I have heard that.
Mr. Jeffries. And would you agree that the White House
counsel is actually the President's legal advisor in the
constitutional system that we have created in America?
Attorney General Holder. You have to understand as
questions get fired at you, you cannot push back with regard to
everything that is contained in a question. But you are right,
I am not the President's legal advisor. I am the Attorney
General of the United States, and there is a fundamental
difference. The White House counsel is, in fact, the
President's legal advisor.
Mr. Jeffries. Thank you, Mr. General. Now, the
characterization was also brought up earlier today suggestive
of the fact that under your leadership, the Department of
Justice has somehow engaged in prosecutorial decisions based on
race and/or party affiliation. Do you recall that suggestion?
Attorney General Holder. Yes.
Mr. Jeffries. Now, my distinguished colleague from New
Orleans recently asked the question of the matter in
Washington, D.C. related to a mayoral candidate, who, in fact,
lost the election after perhaps being linked to Justice
Department activity. Was that current mayor a Democrat, Mr.
General?
Attorney General Holder. Yes.
Mr. Jeffries. And he is a Black Democrat, is that correct?
Attorney General Holder. Yes.
Mr. Jeffries. Now, I also believe that the mayor of
Charlotte was recently indicted, is that correct, by the
Department of Justice?
Attorney General Holder. That is correct.
Mr. Jeffries. And was he a Democratic mayor, Mr. General?
Attorney General Holder. I believe he is.
Mr. Jeffries. Okay. And he is African-American as well, is
that correct?
Attorney General Holder. He is.
Mr. Jeffries. So I think that the suggestions related to
your Department of Justice, and there are a myriad of examples,
but I have got limited time, are really irresponsible,
reckless, and not evidence-based. And I think this Committee
would be well served by staying within the four corners of the
actual facts that are before us.
I have got limited time, so I want to deal with the gun
violence issues. It is one that affects the district that I
represent in Brooklyn. I think we have a gun violence problem.
In fact, in America 5 percent of the world's population, 50
percent of the world's guns, more than 14,000 American who died
as a result of gun violence since the tragedy in Newtown,
Connecticut.
Now, we have got a legislative track which unfortunately
has been barren of activity, and then there is an
administrative executive track. The President in January of
2013 announced a series of initiatives, some of which he
charged the Justice Department with engaging in, and I want to
just explore where we are at in terms of that activity.
It is my understanding the President directed the Attorney
General to review the categories of individuals prohibited from
having a gun to make sure that dangerous individuals are not
possessing weapons that can do harm, is that right?
Attorney General Holder. That is correct.
Mr. Jeffries. Now, this is a real concern for the
communities that I represent. We have tough gun control laws in
New York State. A lot of the guns come from the neighboring
State of Pennsylvania. Chicago famously has a lot of gun
violence problems. A lot of their guns come from the
neighboring State of Indiana. South Central Los Angeles has got
some gun violence problems. A lot of their guns come from the
neighboring State of Arizona. That is why the Justice
Department engagement is so significant.
Where do things stand in terms of that review that the
President charged the Department of Justice with in January of
2013?
Attorney General Holder. I do not remember the exact
number. I think there were 17 or 21 things that came out of the
review that the President asked us to review. And I think that
we have now completed all of the things that the President
asked us to do, which I think was as far as we could go using
only the executive power that we have.
There is still a need, I think, for legislation to deal
with the common sense measures that would help deal with the
gun violence problem in this country. We have tried to do what
we could with regard to enhanced background checks, but there
is still the need to close, for instance, the gun show
loophole, to deal with the problem of assault weapons, to deal
also with the problem of these large clips. These are things
that, again, are overwhelmingly supported by the American
people, make sense, and would keep the American people safe.
Mr. Jeffries. Mr. General, I agree that there is an
absolute need for congressional action. But let me also say
that in the interim I think it is important, and I would like
to be able to work closely with the Department of Justice, the
ATF, to deal with some of the underground problems that we have
in America today short of legislative action because the
children that I represent, some of whom are dying on the
streets of Brooklyn, are from illegal guns from other parts of
the country, cannot afford for us to wait for congressional
action.
And with that, I yield back.
Mr. Collins. The gentleman from New York yields back. The
gentleman from Utah, Mr. Chaffetz, is now recognized.
Mr. Chaffetz. Mr. Attorney General, thank you for being
here. It is an honor to be able to question you. The last time
I had a chance to question you was May 15 in 2013. I was asking
you about General Petraeus and his time as the CIA director. I
followed up with a letter on March 3, 2014. I have communicated
with your legislative staff through our staff.
My question for you regarding--again, this is about General
Petraeus' time as director of the CIA--my understanding is that
the FBI did go to General Petraeus' home. They took documents
and other items. There is some feedback that perhaps the FBI is
a bit frustrated that there has not been a prosecution moving
forward. Can you give the status of what is happening, and is
there any friction with the FBI in what to do with this case?
Attorney General Holder. All I can say is that this is an
ongoing investigation. I am really not in a position to say
much more about it than that. I will say, I have been briefed
on this matter, and I did not detect any friction in what is an
ongoing matter.
Mr. Chaffetz. You know, we are talking about 2 years later,
and this is still hanging over his head. Is that fair? Is that
really fair to have somebody who has been touted as one of
America's greats having this hang over his head for 2 years?
When do you anticipate closing this out?
Attorney General Holder. That is a very legitimate
question. I sat with General Petraeus in the Situation Room
when he was the head of the CIA. He was a great colleague. I
think he is a true patriot.
Mr. Chaffetz. I have got to get to some more specific
questions. I think that is the concern, too, is that this has
been hanging over his head, and it just does not seem fair to
have this hang over his head for so long. When did this happen
when they went to his home and extracted these documents?
Attorney General Holder. As I said, I cannot comment about
an ongoing investigation.
Mr. Chaffetz. Last time I asked you, you said that you
first found out about this in the summer of 2012. Was that
accurate? You were going to get back to me. I have not heard
back from you.
Attorney General Holder. Both the question when you posed
it was a long time ago, and when I actually was first aware of
this is kind of a long time at this point. It was some time
certainly in 2012, but exactly when I do not know.
Mr. Chaffetz. There seem to be a number of mandatory
reporting statutes that were not complied with. That is one of
the concerns. As Senator Feinstein said, ``A decision was made
somewhere not to brief us, which is atypical. This is certainly
an operationally sensitive matter, but we were not briefed. I
do not know who made that decision.'' This was quoted on the
NBC news.
Attorney General Holder. Well----
Mr. Chaffetz. I mean, why not inform the Congress? Why not
do the necessary requirements under the law, the National
Security Act of 1947?
Attorney General Holder. Without commenting on the
investigation itself, but with regard to our decision or
determination about how we would interact outside of the
Justice Department. We did not think on the basis of the
allegations that we were looking at that there was any basis or
any concern that we had about our national security on the
basis of----
Mr. Chaffetz. There is a news report that in the spring of
2012 General Petraeus' schedule was compromised, and that his
security detail was informed of that. Is that true?
Attorney General Holder. Again, I do not want to go into an
ongoing investigation.
Mr. Chaffetz. When is this going to be complete?
Attorney General Holder. It is a matter that is ongoing
that we are working diligently to resolve.
Mr. Chaffetz. Do you have any idea when the President was
told?
Attorney General Holder. I do not remember right now.
Mr. Chaffetz. Do you remember when Mr. Morrell was told,
his deputy?
Attorney General Holder. I do not remember that as well.
Mr. Chaffetz. Mr. Brennan? Do you know when Mr. Brennan was
informed?
Attorney General Holder. I do not remember. I am not sure--
--
Mr. Chaffetz. Mr. Attorney General, I have got the greatest
respect for you. I appreciate personally the time you have
taken with me. I asked questions in the Committee about a year
ago. I sent you a follow-up letter. I work with the legislative
staff. We come before a hearing again, and it appears as if you
took no time to go back and ask for these very basic things. We
are dealing with not the head of the Department of Fish and
Wildlife. We are talking about the CIA director, somebody who
is revered in this country. And here we are 2 years later. It
seems suspicious that it continues to linger without any sort
of relief.
And I think the Congress' understanding of how you deal
with the mandatory requirements to inform the Congress is
something that is concerning Senator Feinstein. It concerns me.
I think it is fair to say it concerns the Intelligence
Committee. And that is what we would like some help
understanding over the course----
Attorney General Holder. Well, I think we complied with the
reporting requirements that you referenced and that, I guess,
Senator Feinstein had referenced also. I can also tell you that
the matter has, again, not talking about the specifics, but the
fact of it. The matter has been handled in a diligent way, and
sometimes these matters, they just unfortunately take time.
Mr. Chaffetz. In the CRS, as I yield back, says ``It seems
that once the FBI investigation turned to possible hacking
involving Petraeus' private email account, the purpose of the
investigation was likely to discover where the compromise of
intelligence may have occurred, in which case it would seem
then to fit the definition of intelligence activity under the
NSA.'' I would just point to this CRS report, Mr. Chairman, of
November 15 of 2012. I yield back.
Mr. Collins. The gentleman's time has expired. The
gentleman from Rhode Island, Mr. Cicilline, is recognized.
Mr. Cicilline. Thank you, Mr. Chairman, and I thank the
Attorney General for being here today. I want to just make two
quick points before I get to my question. One is I associate
myself with the remarks of Congressman Deutch on the urgent
necessity of prosecuting the executives of these financial
institutions that are responsible for harm that was caused to
millions of Americans and many Rhode Islanders. And appreciate
and applaud the work you have done to hold institutions
accountable, but urge you to continue and to help us to restore
the public's confidence in our judicial system by prosecuting
the decision makers, as Congressman Deutch has suggested in his
questions.
And second, just to quickly follow up on Mr. Nadler's
national security letter question we wrote to you on February
19, and I look forward to a written response. But just to urge
you again to look at this issue because if you look at the
history between NSL letters and 215 and the kind of the shift
in use of them, the unanimous recommendation of the President's
commission was, and I quote, ``That all statutes authorizing
the use of national security letters should be amended to
require the use of the same oversight, minimization retention,
and dissemination standards that currently govern the use of
Section 215 orders.'' And I would just urge you reconsider your
position on that. I think there is a reason to harmonize those
and to protect the privacy interests of the American people.
But what I would like to focus on in terms of my question
is the issue of gun violence and the ways that the Justice
Department might think about supporting State and local efforts
to combat this serious problem in our country. Unfortunately
there seems to be a concerted strategy of obstruction here in
Congress about doing anything to address the issue of firearm
related violence, and that is despite the gun violence claimed
the lives of more than 360,000 in the United States between
1999 and 2010, including more than 35,000 children and
teenagers according to the National Center for Injury
Prevention and Control.
But a lot of States and municipalities and local
stakeholders are working to address this complicated problem,
and I would like to ask you about whether the Department of
Justice has made an effort to study the effectiveness of two
particular strategies for addressing this issue. One is the
product of State practices and another is more locally focused.
The State practice is some States have enacted laws that
require mental health professionals to report certain
individuals in identifying information about individuals who
are seriously mentally ill or found to pose a danger to
themselves or others to a firearms prohibition database, New
York and Connecticut being two of them. Obviously, I would be
interested to know whether or not you have looked at these and
whether these are effective strategies, particularly California
who has had it for a couple of decades.
And the second is related really to a local kind of
innovation by, and I will give one example in my home State
that I know you know about. You visited Providence in 2011, and
I know you had the opportunity to meet with the street workers
at the Institute for the Study and Practice of Nonviolence and
with my senator, Senator Whitehouse. And this is an
organization that works very closely with the police department
using former gang members to help combat violence and to help
de-escalate situations. They have been heroic in their work in
terms of preventing violence, but they are, like many
organizations, struggling for funding.
And so, is the Justice Department figuring out ways to both
identify best practices like the street workers at the
institute in Providence that are effective, and then figuring
out how we can support them with funding streams because they
spend so much time on the brink because they just do not have
the resources, and they are doing really good work that is
combatting gun violence and other kinds of violence. I would
just love to hear your thoughts on both of those issues.
Attorney General Holder. Well, you have raised two very
good points. We have recently proposed a regulation that seeks
to clarify who, due to mental health reasons, is prohibited
under Federal law from receiving, possessing, shipping, or
transporting a firearm. Now, this regulation is open for public
comment, I guess, until the beginning of this month. And it
deals with the whole question of what is an adjudicated or a
mental defective or committed to a mental institution.
And so, what we have tried to do is put it out for comment
and see what we get back. And expansion potentially of who
under the mental health disqualifier would be prohibited from
possessing a firearm. So that regulation is out there. Public
comments will come in. Those comments obviously will be looked
at before we propose a final rule.
With regard to the Street Program, for lack of a better
term, that you described, those are the kinds of things that we
are trying to identify through our Office of Justice Programs,
things that are unconventional, that are creative, that
sometimes raise people's eyebrows about who is involved in
these kinds of effort, but ultimately that are potentially
successful. And we try to use an evidence-based approach.
We do not go into it with any pre-conceived notions. I am
familiar, at least a little bit, with what you are describing
in Rhode Island. It is consistent with what we have seen in
other States as well where you get former gang members who have
fully turned around. And if they can be used in a positive way
and have a positive impact on those who might otherwise
duplicate the mistakes that they made, those are the kinds of
programs that we want to support.
Again, it is why our budget request, I think, is so
important. We need the funds and the capacity to fund and
support these innovative, creative efforts not all of which are
going to be successful and not all of which we will continue to
support. But at least we want to try to give people who are
trying to do innovative, appropriate, creative things at least
a first chance.
Mr. Collins. The gentleman's time has expired. The
gentleman from South Carolina, Mr. Gowdy, is recognized.
Mr. Gowdy. Thank you, Mr. Chairman. General Holder, I
appreciate the fact that you cannot comment on pending
investigations. I do. So I would not ask you that. I wish the
President would also follow your advice because when he said
there is not a smidgen of corruption on national television
talking about an ongoing investigation, not only did he
undermine people's confidence in the efficacy of that
investigation, in my judgment, he undermined your Department,
because you cannot comment on it. I think he should have taken
a pass and said the exact same thing that you said when Jimmy
Jordan just asked you the question.
I also want to thank you because I think you are coming to
Charleston on Friday to see our U.S. Attorney and the work that
the women and men of our U.S. Attorney's Office are doing in
Charleston. The U.S. Attorney in South Carolina is a wonderful
friend of mine. We met on opposite sides of a death penalty
case, which is a strange place for a friendship to begin. And
he is an avowed progressive, and I am a conservative from the
upstate of South Carolina. But we are wonderful friends I
think, in part, because we hold out this hope that the law will
trump politics, that it is the greatest equalizing force in our
country, and it is the greatest unifying force in our country.
So I want to thank you for going to Charleston, and I want
to ask you some questions about rule of law and prosecutorial
discretion. If a bill becomes law and there is no question with
respect to its constitutionality, does the Chief Executive have
to enforce that law?
Attorney General Holder. Have to enforce it?
Mr. Gowdy. Yes.
Attorney General Holder. The President has the
constitutional responsibility to enforce the laws. The
executive branch has the responsibility of enforcing the laws.
Mr. Gowdy. Right. So you agree with me that if a bill
passes and is signed into law, and there is no allegation of a
lack of constitutionality, the chief executive has to enforce
that law.
Attorney General Holder. We are talking about a
hypothetical situation here now, and given the hypothetical
that you have espoused, I would think there would obviously be
a responsibility to enforce the law.
Mr. Gowdy. Do you agree that there is a difference between
enforcing the law and following the law?
Attorney General Holder. I am not sure I quite understand
that question.
Mr. Gowdy. Well, here is the distinction I would make. Your
Department is asked to enforce certain statutes, Title 18
statutes. You have prosecutorial discretion. You can decide
that with these facts, we cannot get a conviction. But if
Congress were to impose upon you a duty, in other words, to
make a report to us by a certain date, then you would have to
follow that law. You are not enforcing it, you are following
it.
So the case law has made a distinction between enforcing
the law where prosecutorial discretion comes into play and
following the law prosecutorial discretion is not a defense. So
if we were to ask you to do something, you would have to follow
the law and you could not cite prosecutorial discretion as a
reason not to follow the law.
Attorney General Holder. Well, I would agree, but I would
disagree to this extent. If Congress passed a statute that said
the Justice Department was obligated to bring every case under
Title 18, Section 1951, every public corruption case under a
particular statute, I think that would violate the separation
of powers.
Mr. Gowdy. I agree. I agree, because that would thwart
prosecutorial discretion. But if Congress were to tell you you
have to make a report or you have to do something by X date and
impose a duty on the executive branch itself, prosecutorial
discretion is not going to get you out of that, or else
prosecutorial discretion consumes all of the law. If you have
the ability to both not enforce and not follow law, then we
have no law.
Attorney General Holder. Well, no. If Congress were to
impose upon us a reporting requirement, I would agree with
that. I mean, to say, all right, you know, tell us how many
cases you have brought under this statute by December 31 of
whatever year, something like that.
Mr. Gowdy. You have to follow it.
Attorney General Holder. I think we have the obligation to
fulfill that reporting requirement.
Mr. Gowdy. Right. I want to ask you this. You issued a memo
directing in certain circumstances that your AUSAs and USAS not
inform the grand jury and, therefore, not inform the jury, and,
therefore, not inform the judge about drug amounts.
Attorney General Holder. About drug?
Mr. Gowdy. Drug amounts in Title 21 cases.
Attorney General Holder. I am sorry, drug?
Mr. Gowdy. Amounts.
Attorney General Holder. Drug amounts. I am sorry. Go
ahead.
Mr. Gowdy. Right. It is a memo. ``In cases involving Title
21 mandatory minimum sentences based on drug type, prosecutors
should decline to charge the quantity necessary to trigger
mandatory minimum.'' General Holder, we already have a safety
valve. Congress has already passed a law that if you meet these
requirements, the mandatory minimum is not applicable. So why
would you eschew what Congress has done and trump it with a
memo? I am really honestly trying to understand how you can
respect the law and disrespect a statute that Congress has
already passed.
Attorney General Holder. Well, the view that we had based
on a review that I ordered back in January of 2013, I guess,
was that we have to do something about the prison population
that we have. We also have to come up with a system that is
both more effective, more efficient, and keeps the American
people safe.
And what I ultimately have tried to do is to push
discretion in the hands of the men and women who serve as
assistant U.S. attorneys to look at the defendant who is in
front of them and make an appropriate determination based on
the conduct of that person what an appropriate sentence is.
Mr. Gowdy. Mr. Chairman, I know I am out of time. Could I
ask unanimous consent for 30 seconds just to follow up? Just 30
seconds?
Mr. Collins. Without objection.
Attorney General Holder. That is fine.
Mr. Gowdy. Thank you. Attorney General, I would just ask
you under this general heading of respect for the rule of law
that you would come to like-minded Members of the Judiciary
Committee and say we need to expand the safety valve because we
have a law that does what your memo purports to do. And if we
ever get to the place in this society where a memo is on equal
footing with the law, I think we are in trouble. So I would
encourage you to come to Rand Paul and Raul Labrador and others
who are like minded and fix the statute, not the memo. And with
that, I would yield back.
Attorney General Holder. As indicated in my opening
statement, Congressman Labrador's approach, Senator Paul's
approach, Senator Durbin, Senator Lee, these are all the kinds
of things that we want to work with Congress about. I think
there are ways where ultimately the best of all possible fixes
is to work between the executive branch and the legislative
branch. That is something that we are desirous of doing.
But I do think that the policy pronouncements that I have
made in recent months are consistent with the law, and also are
consistent with good law enforcement. But I----
Mr. Collins. Go ahead. You can continue.
Attorney General Holder. I was just going to say at the end
of the day, I think the best thing would be for the two
branches to get together and come up with a common approach.
Mr. Collins. The gentleman's time has expired. The
gentleman from Idaho, Mr. Labrador, is recognized.
Mr. Labrador. Thank you, Mr. Chairman. And, Mr. Holder,
thank you for being here today. And I actually want to follow
up a little bit on what my good friend, Trey Gowdy, was saying.
As you know, you and I have had many disagreements over our
history, and I hope you know now that I am from Idaho. And one
area where we agree is on the Smarter Sentencing Act, which is
have introduced in the House with my colleague on the
Committee, Congressman Bobby Scott.
I am very pleased that you are supportive of this
legislation. I also understand that the President is supportive
of this legislation. However, the concern that I have, you
know, my job as a Member of Congress is to try to get my like-
minded friends to agree with me on certain pieces of
legislation even if it is outside of the scope of what they
usually think about. And this something that I think you would
agree Republicans have not always agreed with Democrats on, and
it is something that I have been working for the last year or
so trying to get Republicans on board.
But you make actually my job much more difficult when you
unilaterally, as you have, you write memos, and you try to do
the same thing through memos that we are trying to accomplish
through this legislation. When you say you are not seeking
mandatory minimum sentences for nonviolent drug crimes, you are
working around Congress instead of with Congress.
So I am extending to you my hand right now to work with you
to help pass the Smarter Sentencing Act. But could you please
help me try to pass the Smarter Sentencing Act by not going
around the law, and by trying not to work through executive
action only, but actually working with Congress. Could you do
that for me, because it is making my job much more difficult.
Attorney General Holder. Well, we certainly want to work
with you, as I indicated to Congressman Gowdy. I think the
policy pronouncements that I made and, frankly, the raising of
this issue in that speech I gave in August of, I guess, what,
2013, I guess, at the ABA in San Francisco is what really in
many ways generated the conversation that we are now having.
Again, I am talking about pushing discretion to assistant
U.S. attorneys to make determinations about what is an
appropriate sentence, what is an appropriate charging decision
subject to supervisory control for a defendant that is front of
them as opposed to a previous policy that existed that required
every assistant U.S. attorney to charge the most serious
offense that could be proven, almost regardless of what other
factors were in existence. I have got more faith in the men and
women who serve in this Department of Justice to make the right
decisions.
Mr. Labrador. But you are telling them not to charge
certain crimes. I am not sure that you are exhibiting faith.
You are actually telling them do not charge certain crimes, and
if they do not follow your orders, I think it is going to be
something--I have never been an assistant U.S. attorney like my
good friend, Trey Gowdy, but I am not sure that that is
something that somebody would do.
Now, let us talk about a different issue. We have heard a
lot recently about the President's record of deportations. And
my friends on the other side continue to say that these are
record deportations, that we have not as many deportations in
the history of the United States. But my understanding is that
the majority of what the Administration is counting as
deportations are from the border and not from the interior. Is
that correct?
Attorney General Holder. I am just not aware. I do not know
that.
Mr. Labrador. And when I look at the number of orders of
removals in the DoJ's Fiscal Year 2012 statistical yearbook, I
see that they actually have dropped 30 percent since 2009, and
are down by 42 percent since 2005. How do you explain the
Administration's claim that we have record deportations, but
your own statistical yearbook says that they have dropped and
continue to drop in 2013?
Attorney General Holder. Well, you know, I do not have the
statistics in front of me, but I know that the President has
been, I think, unfairly labeled the deporter in chief. I think
he is----
Mr. Labrador. Well, I agree with you. I think he has been
unfairly labeled because we are playing tricks with the
numbers. You are counting people who were stopped at the border
that in the past were not being counted as deportations. And I
think it has been a trick of my friends on the other side to
try to claim that there has been a record number of
deportations, but I believe actually the evidence does not bear
that out.
Attorney General Holder. Well, when I said ``unfairly,'' I
only meant to say that this somehow betrays an inconsistency in
what the President has proposed with regard to his
comprehensive immigration plan, and his sensitivity to the
needs of the immigrant community, and what he has done with
regard to these deportations. I do not think that there is
necessarily a tension between them, and that is why I think
that the label that has sometimes been placed on him is an
unfair one.
Mr. Labrador. Okay. Thank you. I yield back my time.
Mr. Goodlatte [presiding]. The Chair thanks the gentleman,
and recognizes the gentleman from Texas, Mr. Farenthold.
Mr. Farenthold. Thank you very much, Mr. Chairman. You
know, I understand that this Committee has a constitutional
duty of oversight over the Department of Justice, and that is
why we have Mr. Holder here today. But I do not think that I
can be a part of eroding the constitutional balance of power
favoring the executive over the legislative.
You know, I do not think Mr. Holder should be here. He is
in contempt of this body. I have called for his resignation. I
have sponsored articles of impeachment. And this week I am
going to be introducing legislation that would prevent Federal
employees who are held in contempt of Congress or fail to fully
comply with congressional subpoenas not be paid their taxpayer-
funded salary. And I am going to try to get that enclosed with
the appropriations bills that will be going through.
I am committed to maintaining the constitutional balance of
power and the authority that this legislative branch has. And I
just do not think it is appropriate that Mr. Holder be here. If
an American citizen had not complied with one of the Justice
Department subpoenas, they would be in jail, not sitting here
in front of us testifying. But I realize there are questions to
be asked, and I yield the remainder of my time to Mr. Gowdy.
Mr. Gowdy. I thank the gentleman from Texas. General
Holder, I want to go back to our mandatory minimum. If this
were methamphetamine instead of Altoids, and I am going to
trust that it is Altoids because it is Marino's. If that were
methamphetamine, Congress passed a statute that that amount
would get you a mandatory minimum 5 years. But Congress also
passed a statute that if you had a de minimus criminal history,
were not an organizer, did not use a weapon that the mandatory
minimum would not apply. Now, that is after the fact. That is
after the trial. That is after you have been in front of a
judge to change your plea. Your memo tells the AUSAs not to
cite the drug amount. I mean, they cannot.
Attorney General Holder. No, it does not say that. The memo
says that, you know, you take into consideration the totality
of the circumstances in making a charging determination. It
does not mean that if you, Trey Gowdy, you know, with your
hypothetical here, you are a bad guy, you are a drug dealer,
then you have got, I do not know, 15 ounces or whatever of
Altoid/methamphetamine that you cannot be hit with a maximum
sentence, you cannot be hit with a mandatory minimum. That in
the discretion is an appropriate determination. If on the other
hand----
Mr. Gowdy. But why not just exercise your prosecutorial
discretion and not prosecute the case period? If you do not
want low level drug dealers in Federal prison, you have
absolute unfettered authority to tell your AUSAs do not pursue
the case because in drug cases all 50 States have drug laws.
And if you do not prosecute it, the State DA will.
Attorney General Holder. That is the first part of the memo
that I sent out to the field, which was to make determinations
about what truly is a Federal case, you know, when you bring it
to the first----
Mr. Gowdy. All right. Well, all I am going to ask you to do
is think about that you are going to see men and women in
Charleston on Friday that if a judge asked them a question,
they have no choice but to answer that question honestly.
Whatever the question the judge asks----
Attorney General Holder. Sure.
Mr. Gowdy [continuing]. You either answer it honestly or
you are going to jail.
Attorney General Holder. Right.
Mr. Gowdy. What if a grand juror asked the question how
much drugs are involved? The grand jury is about to draft the
indictment. They are about the true billet. They want to know.
And it is more than 50 grams, which triggers a mandatory
minimum 10 years. Are we not putting your AUSAs in the position
of not being honest with the grand jury?
Attorney General Holder. No, not at all.
Mr. Gowdy. How not?
Attorney General Holder. You can tell the grand jury that
the amount is, let us say, above 50 grams. However, the
charging document that we have does not specify an amount, and
this is the reason we are not specifying the amount that is
contained in the document that we are asking you to approve.
You are being totally truthful with the 23 members of the grand
jury.
Mr. Gowdy. One other point. In our safety valve, it is
required that the defendant cooperate with government. In your
memo it is not required that the defendant cooperate with the
government to get out from under a mandatory minimum. You would
agree with me that cooperation with the government is very
important when you are working narcotics cases. So why did you
not require that?
Attorney General Holder. That is one of the factors that is
to be taken into consideration in making those kinds of
determinations. The memo that I sent out did not say do not do
this in a kind of, you know----
Mr. Gowdy. It said ``Prosecutors should decline to charge
the quantity necessary to trigger a mandatory minimum if the
defendant meets the following criteria.'' I can tell you, if I
got that memo from you and the defendant met that criteria but
did not meet all the criteria from Congress, I am going to go
with the guy who signs my paycheck. And there is a conflict
between the two. That is my point is your memo is trumping a
congressional statute.
Attorney General Holder. Well, I mean, we always have
discretion. And would you say that----
Mr. Gowdy. But you do not have discretion on whether to
follow the law or not. That is my point.
Attorney General Holder. Well, no, I would disagree in the
sense that taking into account resource constraints, it is
incumbent upon those of us in the executive branch to make the
maximum use of the resources that Congress gives to us. That
necessarily we are always making choices about the kinds of
cases that we bring, how we deal with the cases that we bring.
Mr. Gowdy. But you are already expending the resources of
the prosecution or you and I would not be having the question.
This is all about sentencing. I have no qualms if you say I am
going to decline prosecution. You have an unfettered right to
do that. What I am saying is you do not have the right to say
in mandatory minimum cases do not tell the grand jury what the
drug amount is. I just think you are putting your AUSAs in a
tough position, but as is always the case, I could be wrong.
And I am definitely out of time.
Mr. Farenthold. I yield back.
Mr. Goodlatte. The Chair thanks the gentleman, and
recognizes the gentleman from North Carolina, Mr. Holding, for
5 minutes.
Mr. Holding. General Holder, thank you for being here. A
quick follow-up on a previous question. In the investigation of
the IRS, there is a person who is leading that investigation, a
first chair, if you will. I mean, there has to be. That is how
you would run an investigation. Is that prosecutor a member of
the Public Integrity Section or is it a member of the Civil
Rights Division?
Attorney General Holder. I would say it is a joint
investigation being done by Civil Rights as well as by Public
Integrity.
Mr. Holding. Well, I wish you would tell us who is in the
first chair, but you will not. At the same time that you issued
the memo regarding charging the drug weights, part of that memo
had to do with compassionate release and expanding the criteria
for eligibility for compassionate release because historically
it has been incredibly difficult to get compassionate release.
And some of the new criteria are circumstances in which
there has been a death or incapacitation of a family member or
a caregiver of the inmate's child, or circumstances in which
the spouse or registered partner of the inmate has become
incapacitated. I think those are pretty broad exceptions of
eligibility criteria. How many people do you estimate to be
eligible for compassionate release that are currently in the
Federal system?
Attorney General Holder. I do not know. You know, we have,
and I believe these numbers are correct, over 100 people in the
Federal system now who are over the age of 80. I think 30
something over the age of 85. Those would be, I think----
Mr. Holding. These criteria that I am looking at are pretty
broad. A lot of inmates have children. A lot of inmates have
spouses or partners. And, you know, this would apply to them.
It has to be a pretty broad number. Have you put into place any
methods to track these people after they are released under
compassionate release?
Attorney General Holder. I mean, these are the kinds of
things that we will put in place to make sure that the
determinations that we are making appropriate ones, I mean,
because I think it is only the responsible thing to do if you
are going to try these new policies to see what is the impact
of them. And to the extent that we are releasing people who
then engage in other crimes----
Mr. Holding. And you put in the memo that, you know, you
will consult with the U.S. Attorney's Offices on these cases
about compassionate release, but the authority to grant with
them is with the director of the Bureau of Prisons. So, you
know, there is any judicial restraint that could be on these
compassionate releases, or is it just an order by the director
of the Bureau of Prisons?
Attorney General Holder. I believe the way it goes is that
it is by statute the Bureau of Prisons through the U.S.
Attorney's Office has to petition the court for the release.
Mr. Holding. Right. Well, to switch gears here before I run
out of time, I am concerned about the illegal distribution of
tobacco products, counterfeit cigarettes, illegally gotten
cigarettes that are put into the system, counterfeit tax
stamps.
And, you know, we all know here that cigarette smuggling is
often a funding source for terrorism or organized crime. We
also know that ATF is charged with the investigation of
tobacco-related crimes. It is the ``T in ``ATF.'' People forget
about that. You know, I appreciate that they are focused on
firearms, but I would like to know and maybe you could have
some staff brief my staff on what DoJ and ATF are doing to
crack down on tobacco smuggling crimes, and what resources you
have got placed into this, and what recommendations you have
for additional resources that you would need to properly engage
in the enforcement of this.
Attorney General Holder. We can certainly do that. I think
the point you make is one that people would find a little hard
to believe, but you know being that you are a former U.S.
attorney that, in fact, there at least have been a couple of
instances where there was a tobacco terrorism connection. We
know that. And so, but we will have our staffs interact.
Mr. Holding. All right. And before I forget, I will ask for
a follow-up on the compassionate release and any studies you
have got of people who are in the system, numbers that might be
eligible, and whatever system you have for tracking these
people as they are released into the system under these new
criteria and further illegal conduct that they might engage in.
Attorney General Holder. That is fine.
Mr. Holding. Thank you. Mr. Chairman, I yield back.
Mr. Goodlatte. The Chair thanks the gentleman, and
recognizes the gentleman from Georgia, Mr. Collins, for 5
minutes.
Mr. Collins. Thank you, Mr. Chairman. I mean, this is my
second one with you in coming here, Mr. Attorney General, and I
appreciate you coming. And it is always interesting to know
what I have seen in my short time, but also looking at history.
And I think one of the things that comes across today is just
very much of a lack of trust in who is prosecuted, who is not
prosecuted. We have heard that comment going on.
I just happened to be in another Committee this morning,
saw this article. Just pulled it out of a 2009 paper that said
``Obama open to prosecuting Bush officials over abuse.'' This
is sort of what started the whole look, and I think there is
even going to be a day of reckoning for these past few years,
and that has tainted everything that has come forward. When you
see, as my friend from Iowa has talked about, the prosecution
cases not prosecuted, other things.
And it gets into an issue here in which the gentleman from
South Carolina brought it up, the gentleman from Idaho has
brought it up, and it is the fact of how we can work together.
There is a process to this, Mr. Attorney General, and that is
working together even through difficulties and even when we do
not agree and there are problems. Even to the point of we
cannot in this Committee today seem to understand that you are
an advisor to the President, and that was mentioned by Mr.
Chabot, and then it was sort of mockingly mentioned by my
friend from New York.
But even on your own budget request for the Office of Legal
Counsel, it says ``the mission of OLC is to assist the Attorney
General in his function as legal advisor to the President and
all of the executive branch agencies.'' If this not your role
and this is not their role, then I think we have found some
money for you to put into ideas so we will defund this program
and put this money into other places.
So are you saying, again, to this Committee that you are
not a legal advisor to the President on a lot of different
issues?
Attorney General Holder. Sure I am, but not the way in
which it was used in that question. The question was posed as
if I were the person kind of almost pulling the strings for the
President. Of course I am an advisor to the President, and of
course I have a particular area of responsibility with regard
to that advice.
But in terms of, you know, the person who on a day-to-day
basis is advising the President, that is the White House
counsel as opposed to the Attorney General because there is a
wall. There is an independence that exists between the Justice
Department and the White House.
Mr. Collins. I am very familiar with that wall. I think
just in the conversations going on, that it needs to be
understood, and I think it goes back to this, you know, issue
of oversight and discussion.
I want to turn your attention to ATF. We just talked about
it from the gentleman from North Carolina and tobacco, which is
a concern. But I have a bigger concern over just what seems to
be a lack of oversight from your office and overall when ATF
was going through multiple interim directors. There is now a
full-time appointed and confirmed director of ATF.
But in Atlanta, I want to go back to an issue of the
storefront. We have been over Fast and Furious. We are not
going to talk about that. I want to go back to the storefront
issue in Atlanta. This was at a time in which the current
administrator was not in charge and there were interims going
on, but you were ultimately in charge of ATF, correct?
Attorney General Holder. Yes.
Mr. Collins. So you have oversight. Does it not concern
you, and I think it concerns many on this, that there seems to
be, especially from Fast and Furious to this storefront
operation, why there seemed to be no concerted oversight from
your office, especially when there was not a permanent
director. Can you help me understand why they seemingly were
able to operate very rogue programs?
I come from a law enforcement background. My father was in
law enforcement. And the actions of one represents all, and
they should not, and I agree with you there. But why was this
going on? And I have asked specific questions, which they are
supposed to meet with me next week, but I still have not gotten
the answers. Why was this program from your perspective not
better managed?
Attorney General Holder. Well, I think it was just poor
management, poor decision making. But I also think, you know,
that Congress bears some of the responsibility here by not
approving a person, a Senate confirmed person, to run ATF. That
makes a fundamental difference.
Mr. Collins. So hold on just 1 second. I have a question
there. So you are saying that if we do not confirm somebody or
that----
Attorney General Holder. I am not saying----
Mr. Collins [continuing]. By the Senate. By the way, the
Senate side would confirm, not us.
Attorney General Holder. Oh, I am not blaming you all.
Mr. Collins. That you put somebody in an interim role that
they cannot make good decisions, that they use handicapped
personnel to recruit folks? They take police weapons. They do
not inform the local police that they have the weapons? In
fact, Atlanta and Fulton County are still searching. The ATF
has not acknowledged that they have the guns?
Attorney General Holder. No, that is not what I am saying.
I am saying that that is a factor in why you saw, I think, some
of the things happen in ATF. If you look at the leadership that
Todd Jones has been able to bring to that organization as the
Senate-confirmed head of that organization, there is a certain
gravitas that he has that people who preceded him simply did
not have.
Mr. Collins. I had a great time talking to him.
Attorney General Holder. It is only a factor. It is only a
factor.
Mr. Collins. I had a great time talking with him last week.
Now I am talking with you because during the time he was not
there, these were going on. And to me, that is one of the
things that has overridden these hearings a lot is just a
simple lack of administrative trust on what is going on on the
oversight, especially in ATF, but in other areas where it is
viewed, and especially when we cannot seem to work together on
getting stuff done.
Instead, as you worded it just a moment ago, it was
discretion to, as we were talking about, the drug instance.
Discretion does not mean you cannot follow the law. Discretion
is always there, and I think that is the concern that I have
here, and it is the concern that just pops up whether it is
ATF, whether it started back years ago. There is just a basic
lack of trust when you look at prosecutions, when you look at
the issues going on, and we cannot seem to get answers that are
not just basically blown off.
And I do not understand that from your perspective,
especially with an agency like ATF that has already had
problems why the leader would not have taken a better hands on
role there. Can you explain that one to me?
Attorney General Holder. Well, we have provided documents.
We have provided evidence.
Mr. Collins. But did it concern you? Not the documents. I
want to know from you, Mr. Attorney General.
Attorney General Holder. Sure it concerns me. The notion
that you would use mentally unstable people, you would tattoo
them, that you would do ridiculous things like that, is absurd,
and people will held be accountable.
Mr. Collins. How were they held accountable?
Attorney General Holder. It is crazy.
Mr. Collins. How were they held accountable?
Attorney General Holder. Well, the investigation----
Mr. Collins. What did you do to hold these people
accountable?
Attorney General Holder [continuing]. Is being run by the
Inspector General. Once those findings are made and people are
identified, they will be held be accountable, in the same way
that happened with regard to other things that ATF was involved
in.
Mr. Collins. These are several years old, and so it is
hard----
Mr. Conyers. Mr. Chairman, can we have regular order?
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Collins. My time has expired. Mr. Attorney General,
thank you for your questions. My time has expired.
Mr. Goodlatte. The Chair recognizes the gentleman from
Florida, Mr. DeSantis, for 5 minutes.
Mr. DeSantis. Thank you, Mr. Chairman. Thanks for coming,
Attorney General Holder. I want to follow up. You have been
asked by Senator Lee about the Obamacare employer mandate
delay, and then today by Congressman Chabot, and you cited the
IRS analysis. So I have that if we can provide that for you.
It is actually very simple. It is just one sentence, and it
basically says that ``The Secretary shall prescribe all needful
rules and regulations for the enforcement of this title,
including all rules and regulation as may necessary by reason
of any alteration in law in relation to Internal Revenue.''
Again, that is 7805-alpha.
So how would that trump an obligatory statutory mandate,
because in the Affordable Care Act it says that ``This mandate
shall take effect.'' It does not say ``discretionary.'' This is
providing authority to implement statutes and to prescribe
rules for that effect. But how would this be used to trump that
deadline, because the deadline has essentially been suspended
twice. In the second suspension, there was additional gloss
added. Now instead of a 50-employee, now we have this 50- to
100-employee, and there are different rules being prescribed.
So what would you cite within that regulation that would give
the executive branch the authority to suspend the statute?
Attorney General Holder. Well, as I indicated, the Treasury
Department came up with the analysis and the basis for the
delay. It seems to me that it is not a question of trumping. It
seems to me that it is consistent with the act, and the action
taken by the Administration in that regard was appropriate.
Mr. DeSantis. So let me ask you another issue. In November
we had this issue with Obamacare. Plans were being cancelled.
It was obviously politically difficult for the President's
party in particular. And the way that provision worked, there
is a grandfather provision, so as soon as the ACA was passed,
you could potentially have been covered if you had existing
coverage. But any new coverage that anyone got after that March
2010 date, the grandfather clause just did not apply.
So this was causing a lot of problems in the marketplace,
so the President came out to the podium in the White House
press room, and he said this: ``Already people who have plans
that pre-date the Affordable Care Act can keep those plans if
they have not changed.'' That was already in the law. That is
what is called a grandfather clause that was included in the
law.
Today we are going to extend that principle both to people
whose plans have changed since the law took effect and to
people who bought plans since the law took effect. So if the
grandfather clause is limited to plans that pre-date the
implementation of Obamacare, where would the executive branch
get the authority to extend the coverage of the statute to
plans that were not covered by the law?
Attorney General Holder. Well, again, I do not know exactly
what the basis is for that action. I am confident that the
determinations that were made within the Administration are
consistent with the law. I think we all need to pull back a
little bit here. Pull back a bit. We have got 7.1 million who
have signed up, people who have healthcare now who did not have
it before.
Mr. DeSantis. It does not excuse whether you are doing it.
With all due respect, you can do good things or bad things----
Attorney General Holder. No, can I finish----
Mr. DeSantis. But I think you are trying to----
Attorney General Holder. I have given you a chance to ask a
question.
Mr. DeSantis. I know, but my time is limited, sir. I
understand what you are going to say.
Attorney General Holder. Well, let us go past 5 minutes
then. How about that? And let us pull back a little back and
see that people who did not have healthcare before now have it.
People who did not have great healthcare before now have it.
People who had pre-existing conditions are now covered. Younger
people, like my kids who are unemployed, can stay on my
healthcare plan, that there are going to be, you know, 7.1
million people signed up. There are substantially greater
numbers of people in those other categories that I have
mentioned. And let us look at that. Look at the totality of
that before you start to pick at these things, which are not
insubstantial. They are legitimate questions----
Mr. DeSantis. But, Mr. Attorney General, the rule of law
ultimately--we have a constitutional system. That is one of the
things that makes our country unique from others is that you
have separation of powers. This whole architecture was designed
ultimately----
Attorney General Holder. And you tried to repeal it 50
times, and that is part of the constitutional system----
Mr. DeSantis [continuing]. To protect individual freedom.
And so, to say that, oh, well, people are now staying on their
parents' plans, that has nothing to do with the executive
action that was taken in this instance, and we are trying to
determine whether the President has gone beyond in this case by
rewriting provisions of the statute. And basically you have
simply referred to other analysis, but most of us on this
Committee find that analysis has been wanting, and we do not
think that it has been good.
Final thing, this Dinesh D'Souza prosecution, I know you
are not going to comment on the ongoing investigation, but it
was a straw donation reimbursement scheme is the allegation.
The FBI did say that this was uncovered during a routine review
of FEC filings. And so, my question to you is, to put aside
this case, how would it even be possible if all you are doing
is reviewing the FEC filings to know that some of those
donations have been reimbursed? Would you not need to actually
have targeted one of those donors and done additional
investigation? It just seems to me by simply reviewing the FEC
filings that is not going to be sufficient.
Attorney General Holder. Well, I am not going to comment,
as you said, on the ongoing investigation, but I can certainly
tell you that information comes to the FBI, to the Justice
Department in a variety of ways. And on the basis of the
receipt of that information, determinations are made about what
cases are going to be investigated, what cases are ultimately
going to be prosecuted.
Mr. DeSantis. But that is not really----
Mr. Goodlatte. The time of the gentleman has expired. The
Chair recognizes the gentleman from Missouri, Mr. Smith, for 5
minutes.
Mr. Smith of Missouri. Thank you, Mr. Chairman. Attorney
General, a pleasure to have you here. Does Federal law prohibit
the sale or possession of marijuana?
Attorney General Holder. Technically, yes.
Mr. Smith of Missouri. Technically. Is it not under the
Controlled Substance Act of 1970 where it defines that as a
Schedule 1 drug? So that is a fact, right? Correct?
Attorney General Holder. Yes.
Mr. Smith of Missouri. Okay. And whenever State law
conflicts with Federal law, does Federal law take precedence?
Attorney General Holder. That is generally true. It is not
always true.
Mr. Smith of Missouri. Would it be true in the case of the
Controlled Substance Act of 1970?
Attorney General Holder. That is an interesting question.
If a State, for instance, decided to decriminalize possession
of a particular substance, there is at least an argument that
can be made that the Federal Government could bring a supremacy
clause suit against the State. But there is an argument that
could be made that a State cannot be forced to criminalize
something. So it is actually an interesting question.
Mr. Smith of Missouri. Is it, would you say, similar to the
Arizona immigration case?
Attorney General Holder. No. There I think it is clear that
the responsibility for the enforcement of immigration law is
something that is clearly Federal in nature. There is not a
dual responsibility as there is with regard to certain criminal
laws.
Mr. Smith of Missouri. I thought it was interesting in that
Arizona case that Justice Kennedy, who wrote the majority
opinion, said ``States may not pursue policies that undermine
Federal law.'' And the Controlled Substance Act is a Federal
law, and the State of Colorado is undermining that Federal law,
correct?
Attorney General Holder. No. I mean, what we have said that
we are looking at the way in which the law is being enforced or
how we are going to enforce the law in Colorado and in
Washington as well. We are going to apply those eight factors
that we have put together, and we are going to use our limited
resources to go after people who engage in the trafficking use
of marijuana that has an impact on those eight factors.
Mr. Smith of Missouri. So if my fellow former colleagues in
the State house and State Senate would say the State of
Missouri does not want to participate in the Affordable Care
Act, could or would you all sue the State of Missouri?
Attorney General Holder. Well, certain States have made
that determination by not expanding Medicaid.
Mr. Smith of Missouri. So my constituents, if they do not
sign up, they will not be penalized in their IRS forms?
Attorney General Holder. No, that is not the way the
statute is written.
Mr. Smith of Missouri. Okay. Well, we know what the statute
says in the Controlled Substance Act of 1970, and it says
marijuana sale or possession is a violation of Federal law. I
always visit my schools back home. I talk to the kids. And I
always try to bring home the theme of being a responsible
citizen to society and to obey the laws of the land. And one of
the laws of the land, which is Federal law, from 1970, 10 years
before I was ever born, that says that marijuana, the sale or
possession, is a violation of Federal law. What do you say to
those kids when you are in the classrooms and they ask why you
choose to enforce certain laws and some laws you do not
enforce?
Attorney General Holder. Well, first I would say that with
regard to our eight enforcement priorities, the very first one,
the thing that will bring about Federal involvement, Federal
concerns, Federal action, is number one, preventing the
distribution of marijuana to minors. We have limited resources.
I do not think you are meaning to suggest that the Federal
Government should prosecute every possessory marijuana case
that exists in the United States, which technically, I suppose,
we would have the ability to do. That is not what you are
proposing, right?
Mr. Smith of Missouri. You know, the law of the land is the
Controlled Substance Act of 1970 that says all marijuana, it is
a violation of even one marijuana cigarette. That is what the
law says, correct?
Attorney General Holder. So you are saying that we should
prosecute every one of those cases----
Mr. Smith of Missouri. I am asking you. You are the
Attorney General of the United States.
Attorney General Holder. And I am asking you a question, I
think, legitimately in return to the question that you posed to
me.
Mr. Smith of Missouri. I am asking why you fail to enforce
the laws of the land, Attorney General.
Attorney General Holder. Your premise is wrong. We are
enforcing the laws of the land. We are enforcing the laws----
Mr. Smith of Missouri. Does the law of the land say that
under 1970 that the sale or possession of marijuana is illegal?
Attorney General Holder. We are enforcing the law
consistent with the----
Mr. Smith of Missouri. And do States in the United States
allow the sale of marijuana?
Attorney General Holder. We are enforcing the law
consistent with those eight enforcement priorities. And again,
the question I have for you which you have not answered is
would you have us prosecute every marijuana possession case
that exists in the United States of America?
Mr. Smith of Missouri. Attorney General, when you actually
answer my----
Attorney General Holder. Would you have us do that?
Mr. Smith of Missouri [continuing]. Colleagues' question, I
would be more than happy to answer yours.
Attorney General Holder. I will take that as a no.
Mr. Goodlatte. Thank you. The time of the gentleman has
expired. The Chair recognizes the gentleman from Pennsylvania,
Mr. Marino, for 5 minutes.
Mr. Marino. Thank you. General, I want to talk to you about
two issues. These are important to my district. One is the OC
spray, the pepper spray, for Federal prisons, number one. And
number two is going to be the DEA and prescription drug issues.
So I think you may recall that we have had a couple of
discussions on the pepper spray.
In August of 2012, the Bureau implemented a pilot
evaluation of the pepper spray at seven high security
institutions. In February of 2013 after 6 months' review
period, data indicated that OC spray significantly reduced
incident containment times. As a result of these findings, the
pilot program was expanded, I believe, to include all high
security prisons in the Federal system detention centers and
jails.
In my district, the 10th District of Pennsylvania, we have
the highest number of Federal prison workers of any district
that I know of in the country. I hear from prison guards about
their concerns for their safety. These concerns have only risen
since the tragic death of Eric Williams--you and I were at his
funeral--who was working in the Canaan Penitentiary and was
brutally attacked by an attack. And since this horrific event,
I have been asking for higher safety security measures for our
guards as well as more staffing.
You were to give us a comprehensive report on the results
of the spray. But you know something? Giving the results of the
report really is not that critical to me. My question is, why
have we not put the pepper spray into effect throughout the
Federal system for not only those officers, but also
individuals that work there?
Attorney General Holder. Congressman, if I could get back
to you on that because we are all thinking that, in fact, as a
result of that trial, the program has, in fact, been rolled
out. But if that is not the case, I want to be able to respond
to you in a way that is accurate.
Mr. Marino. Let me help you out there. I think it has been
rolled out for the official guards who are responsible and have
supervision over the inmates. Where it has not been rolled out,
and you can correct me if I am wrong later, is, for example,
there was a supervisor in a kitchen in one of the prisons. He
is not really a ``prison guard.''
Attorney General Holder. I see what you mean.
Mr. Marino. But he was attacked, brutally attacked. And he
was one person supervising about 20 people in that kitchen. So
why would he or she in counseling and in any other situations,
because they have all been trained. You have made sure that
they have all been trained on this. I think they should all
have it.
Attorney General Holder. I see.
Mr. Marino. And I would appreciate it if you would really
kick that into gear as soon as possible.
Attorney General Holder. All right. I understand what you
are saying. All right. We will look at that. We have, I think,
a new and different relationship with the union and with, I
think, the people they represent, but that is something that I
think is worthy of examination. I understand what you are
saying.
Mr. Marino. Thank you. Believe me, I have the utmost
respect for the Justice Department. That was the pinnacle of my
career when I was there. I am going to switch over to
prescription drugs now and DEA. You underscored the
Department's commitment to fighting the rampant abuse of
prescription drugs and heroin. You know the epidemic that that
has caused, and I commend you for that effort.
But I was troubled by some language that you chose, noting
the Department's enforcement initiatives. At least I inferred
you seem to equate legitimate supply chain businesses to
illicit narcotics cartels. I found that disappointing. This
mindset, it is extremely dangerous to legitimate business. As a
matter of fact, how am I reading this, and this is why I
introduced a bill, H.R. 4069, Ensuring Patient Access and
Effective Drug Enforcement Act of 2014. My legislation would
encourage more collaboration--the operative term ``more
collaboration''--between DoJ and legitimate companies trying to
work with you to prevent prescription drug abuse.
My understanding is the DEA now is going to the drug
companies and saying you should have realized that the amount
of drugs that you were sending out to this particular
individual, you should have made the determination that that
individual was abusing drugs. And then these legitimate
businesses are being held responsible for that and fined and
perhaps put out of business.
So I am asking if the people of DoJ in this area and DEA
talk with these companies, sit down and put together
guidelines, because they have told me they have asked DoJ, DEA,
well, what are the guidelines. Can you give us some ideas,
because when I was a prosecutor both at the State and Federal
level, shipping companies and even pharmaceuticals brought
information to our attention saying, hey, we think there may be
an issue here going to this particular address. You might want
to look into it. So I am asking you to set guidelines up for
these companies so they can work very closely with you so we
can, if not eliminate, significantly curtail the abuse of
prescription drugs. Could you do that?
Attorney General Holder. Sure. And I certainly did not mean
to imply, and I do not think I said in the remarks I made, for
instance, referring to that tape that was made, that companies
who are legitimately producing these very useful products, they
cannot be held responsible for the distribution chain down the
road where doctors, people steal, you know, doing a whole
variety of things. I do not want to cast that wide a net.
And to the extent that there are concerns by people and
industry, I would more than welcome a conversation. Perhaps you
could facilitate----
Mr. Marino. I would love to.
Attorney General Holder [continuing]. To have that
conversation because the reality is we cannot, and this is the
thing that concerns me, that there are people who have
legitimate needs for these kinds of prescriptions, these kinds
of substances that relieve pain. And we cannot in our desire,
our legitimate desire and one that I am pushing, to stop opioid
use, which potentially leads to heroin involvement. We cannot
lose sight of the fact that there are good people, sick people,
good companies who employ good people who are trying to do the
right thing.
Mr. Marino. I see my time has expired, but if you find
yourself not having something to do one some evening, which you
probably never do, I would love to discuss the issues
concerning mental health and the criminal justice.
Attorney General Holder. Okay.
Mr. Marino. Thank you, sir. I yield back.
Attorney General Holder. Thank you.
Mr. Goodlatte. The Chair thanks the gentleman. And, General
Holder, he is the 34th Member to ask questions of you. So we
thank you very much for joining us today and answering a lot of
questions from a lot of Members of this Committee.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
And, General Holder, we hope that you will answer those
questions in writing in a reasonable period of time.
This hearing is adjourned.
Attorney General Holder. Thank you, Mr. Chairman.
[Whereupon, at 1:47 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Questions for the Record submitted to the Honorable Eric H. Holder,
Jr., Attorney General, United States Department of Justice, Washington,
DC*
---------------------------------------------------------------------------
*The Committee had not received a response to these questions at
the time this hearing record was finalized and submitted for printing
on July 15, 2014.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[all]