[Senate Hearing 115-207]
[From the U.S. Government Publishing Office]
S. Hrg. 115-207
CONFIRMATION HEARING ON THE
NOMINATION OF HON. JEFF SESSIONS
TO BE ATTORNEY GENERAL
OF THE UNITED STATES
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
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JANUARY 10 and 11, 2017
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Serial No. J-115-1
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.fdsys.gov
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COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah DIANNE FEINSTEIN, California,
LINDSEY O. GRAHAM, South Carolina Ranking Member
JOHN CORNYN, Texas PATRICK J. LEAHY, Vermont
MICHAEL S. LEE, Utah RICHARD J. DURBIN, Illinois
TED CRUZ, Texas SHELDON WHITEHOUSE, Rhode Island
BEN SASSE, Nebraska AMY KLOBUCHAR, Minnesota
JEFF FLAKE, Arizona AL FRANKEN, Minnesota
MIKE CRAPO, Idaho CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
JOHN KENNEDY, Louisiana MAZIE K. HIRONO, Hawaii
Kolan L. Davis, Chief Counsel and Staff Director
Jennifer Duck, Democratic Chief Counsel and Staff Director
C O N T E N T S
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JANUARY 10, 2017, 9:30 A.M., and JANUARY 11, 2017, 9:35 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California:
January 10, 2017, opening statement.......................... 5
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa:
January 10, 2017, opening statement.......................... 2
January 10, 2017, prepared statement......................... 370
January 11, 2017, opening statement.......................... 153
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont:
January 10, 2017, opening statement.......................... 1
January 10, 2017, prepared statement......................... 374
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island:
January 11, 2017, opening statement.......................... 154
PRESENTERS
Collins, Hon. Susan M., a U.S. Senator from the State of Maine
presenting Hon. Jeff Sessions, a U.S. Senator from the State of
Alabama and Nominee to be Attorney General of the United States 9
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama
presenting Hon. Jeff Sessions, a U.S. Senator from the State of
Alabama and Nominee to be Attorney General of the United States 8
STATEMENT OF THE NOMINEE
Witness List..................................................... 219
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama and
Nominee to be Attorney General of the United States............ 10
prepared statement........................................... 261
questionnaire and biographical information................... 221
attachment I................................................. 254
attachment II................................................ 256
attachment III............................................... 258
STATEMENTS OF THE WITNESSES
Booker, Hon. Cory A., a U.S. Senator from the State of New Jersey 207
prepared statement........................................... 334
Brooks, Cornell William, President and Chief Executive Officer,
National Association for the Advancement of Colored People,
Baltimore, Maryland............................................ 165
prepared statement........................................... 290
Canterbury, Chuck, National President, Grand Lodge, Fraternal
Order of Police, Washington, DC................................ 167
prepared statement........................................... 309
Cole, David, National Legal Director, American Civil Liberties
Union, Washington, DC.......................................... 169
prepared statement........................................... 316
Huntley, Willie J., Jr., former Assistant U.S. Attorney, Southern
District of Alabama, Mobile, Alabama........................... 209
prepared statement........................................... 337
Kirsanow, Peter, Commissioner, U.S. Commission on Civil Rights,
Cleveland, Ohio................................................ 160
prepared statement........................................... 278
Lewis, Hon. John, a Representative in Congress from the State of
Georgia........................................................ 210
prepared statement........................................... 342
Mukasey, Hon. Michael B., former Attorney General, U.S.
Department of Justice, Washington, DC.......................... 157
prepared statement........................................... 268
Richmond, Hon. Cedric L., a Representative in Congress from the
State of Louisiana, and Chair, Congressional Black Caucus...... 213
prepared statement........................................... 349
Sepich, Jayann, Co-Founder, DNA Saves, Carlsbad, New Mexico...... 163
prepared statement........................................... 284
Seroyer, Hon. Jesse, Jr., former U.S. Marshal, Middle District of
Alabama, Montgomery, Alabama................................... 212
prepared statement........................................... 347
Smith, William, former Chief Counsel, Administrative Oversight
and the Courts Subcommittee, U.S. Senate Committee on the
Judiciary, Washington, DC...................................... 216
prepared statement........................................... 365
Swadhin, Amita, Founder, Mirror Memoirs, Los Angeles, California. 161
prepared statement........................................... 281
Thompson, Hon. Larry, former Deputy Attorney General, U.S.
Department of Justice, Washington, DC.......................... 170
prepared statement........................................... 331
Vazquez, Oscar, former DREAMer, U.S. Army veteran, Fort Worth,
Texas.......................................................... 158
prepared statement........................................... 273
QUESTIONS
Questions submitted to Hon. Jeff Sessions by:
Senator Blumenthal........................................... 375
Follow-up questions submitted by Senator Blumenthal.......... 385
Senator Coons................................................ 388
Follow-up questions submitted by Senator Coons............... 394
Senator Durbin............................................... 399
Senator Feinstein............................................ 417
Follow-up questions submitted by Senator Feinstein........... 440
Additional follow-up questions submitted by Senator Feinstein 447
Senator Flake................................................ 451
Senator Franken.............................................. 452
Follow-up questions submitted by Senator Franken............. 473
Senator Graham............................................... 487
Senator Grassley............................................. 488
Senator Hirono............................................... 494
Follow-up questions submitted by Senator Hirono.............. 496
Senator Klobuchar............................................ 498
Senator Leahy................................................ 501
Follow-up questions submitted by Senator Leahy............... 522
Senator Tillis............................................... 605
Senator Whitehouse........................................... 606
ANSWERS
Responses of Hon. Jeff Sessions to questions submitted by:
Senator Blumenthal........................................... 615
Follow-up questions submitted by Senator Blumenthal.......... 637
Senator Coons................................................ 641
Follow-up questions submitted by Senator Coons............... 652
Senator Durbin............................................... 659
Senator Feinstein............................................ 688
Follow-up questions submitted by Senator Feinstein........... 725
Additional follow-up questions submitted by Senator Feinstein 738
Senator Flake................................................ 743
Senator Franken.............................................. 744
Follow-up questions submitted by Senator Franken............. 760
Senator Graham............................................... 779
Senator Grassley............................................. 780
Senator Hirono............................................... 789
Follow-up questions submitted by Senator Hirono.............. 792
Senator Klobuchar............................................ 796
Senator Leahy................................................ 801
Follow-up questions submitted by Senator Leahy............... 839
Senator Tillis............................................... 851
Senator Whitehouse........................................... 852
LETTERS RECEIVED WITH REGARD TO THE NOMINATION OF HON. JEFF SESSIONS TO
BE ATTORNEY GENERAL OF THE UNITED STATES
Access Now et al., January 9, 2017............................... 1243
Acosta, Hon. R. Alexander, former Assistant Attorney General,
Civil Rights Division, U.S. Department of Justice, et al.,
December 12, 2016.............................................. 999
Acosta, Hon. R. Alexander, former U.S. Attorney, Southern
District of Florida, U.S. Department of Justice, et al.,
December 16, 2016.............................................. 1017
Adams, Christian, President, Public Interest Legal Foundation
(PILF), Plainfield, Indiana, January 5, 2017................... 867
Advocates for Youth, Washington, DC, January 13, 2017............ 872
Affinity Bar Associations, Washington, DC, January 9, 2017....... 877
African American Ministers In Action (AAMIA), Washington, DC,
January 9, 2017................................................ 880
Alliance for Justice, Washington, DC, January 9, 2017............ 886
Alliance for Justice et al., January 9, 2017..................... 1240
Amazon Watch et al., January 9, 2017............................. 1060
American Association for Access, Equity and Diversity (AAAED),
Washington, DC, January 9, 2017................................ 889
American Association of People with Disabilities, Washington, DC,
et al., January 10, 2017....................................... 970
American Center for Law and Justice (ACLJ), Washington, DC,
December 19, 2016.............................................. 893
American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO), Washington, DC, January 13, 2017...... 879
American Federation of State, County and Municipal Employees,
AFL-CIO (AFSCME), Washington, DC, January 13, 2017............. 884
American Gaming Association (AGA), Washington, DC, January 9,
2017........................................................... 895
Americans United for Separation of Church and State, Washington,
DC, January 9, 2017, letter.................................... 897
Anderson, Kimberly K., former Legislative Counsel to Hon. Jeff
Sessions, a U.S. Senator from the State of Alabama, U.S. Senate
Committee on the Judiciary, et al., January 6, 2017............ 1006
Anti-Defamation League (ADL), New York, New York, January 9, 2017 900
Armenian Assembly of America, Washington, DC, January 9, 2017.... 915
Ashcroft, Hon. John D., former Attorney General, U.S. Department
of Justice, et al., December 5, 2016........................... 1002
Association of Federal Narcotics Agents (AFNA), Ashburn,
Virginia, January 16, 2017..................................... 917
Bader, Cheryl, Associate Clinical Professor of Law, Fordham
University School of Law, New York, New York, et al., January
9, 2017........................................................ 1104
Bennett, Hon. William J., former Director, National Drug Control
Policy, et al., December 5, 2016............................... 1004
Bill of Rights Defense Committee and Defending Dissent
Foundation,
Washington, DC, January 9, 2016................................ 918
Bouchard, Michael J., Sheriff, Oakland County, Pontiac, MI, and
Vice President, Major County Sheriffs' Association (MCSA),
November 18, 2016.............................................. 923
Boys and Girls Clubs of America, Washington, DC, January 6, 2017. 924
Bus Federation, The, Portland, Oregon, January 9, 2017........... 1220
California Down Syndrome Advocacy Coalition (CDAC), January 2,
2017........................................................... 925
California State Sheriffs' Association (CSSA), Sacramento,
California, December 20, 2016.................................. 927
Citizens Against Legalizing Marijuana (CALM), Carmichael,
California,
December 9, 2016............................................... 928
City of Seattle, Washington, Hon. Edward B. Murray, Mayor, et
al., January 10, 2017.......................................... 1116
City of West Hollywood, California, Hon. Lauren Meister, Mayor,
January 9, 2017................................................ 929
Coalition on Human Needs, Washington, DC, January 10, 2017....... 936
Cobb, Hon. Sue Bell, former Alabama Supreme Court Chief Justice,
Pike Road, Alabama............................................. 1045
Communications Workers of America (CWA), Washington, DC, January
9, 2017........................................................ 939
Community Anti-Drug Coalitions of America (CADCA), Alexandria,
Virginia, December 21, 2016.................................... 941
Concerned Women for America Legislative Action Committee, Penny
Young Nance, Chief Executive Officer and President, et al.,
January 5, 2017................................................ 931
Congressional Tri-Caucus: the Congressional Black Caucus, the
Congressional Asian Pacific American Caucus, and the
Congressional Hispanic Caucus; Washington, DC, January 9, 2017. 942
Constitutional Accountability Center, Washington, DC, January 6,
2017........................................................... 947
Council for Citizens Against Government Waste (CCAGW),
Washington, DC, January 9, 2017................................ 959
Council of Parent Attorneys and Advocates (COPAA), Towson,
Maryland, January 5, 2017...................................... 960
Demos, Newton Center, Massachusetts, January 9, 2017............. 963
Drug Policy Alliance, Washington, DC, January 9, 2017............ 973
Edington, Pat, Mobile, Alabama, January 6, 2017.................. 975
Electronic Privacy Information Center (EPIC), Washington, DC,
January 9, 2017................................................ 976
Family Research Council (FRC), Washington, DC, January 10, 2017.. 981
Federal Law Enforcement Officers Association (FLEOA), Washington,
DC, November 28, 2016.......................................... 982
Federation for American Immigration Reform (FAIR), Washington,
DC, January 5, 2017............................................ 983
Feminist Majority Foundation, Beverly Hills, California, and
Arlington,
Virginia, January 6, 2017...................................... 985
Fishback, Ian, Major, U.S. Army, Retired, January 10, 2017,
statement regarding September 2005 letter...................... 993
FORCE 100 and Memory of Victims Everywhere (MOVE), San Juan
Capistrano, California, December 9, 2016....................... 997
Freeh, Hon. Louis J., former Judge and former Director, Federal
Bureau of Investigation, December 20, 2016..................... 1043
Friends Committee on National Legislation (FCNL), Washington, DC,
January 6, 2017................................................ 1027
Fuentes, Jose A., former Attorney General, Government of Puerto
Rico, Washington, DC, January 10, 2017......................... 1031
Gillers, Stephen, Professor of Law, New York University School of
Law, New York, New York, January 6, 2017....................... 1033
Guinier, Lani, Author and Professor of Law, Harvard Law School,
Cambridge, Massachusetts, January 11, 2017..................... 1036
Horowitz, Michael, McLean, Virginia.............................. 1047
Houston, J. Gorman, Jr., Birmingham, Alabama, December 13, 2016.. 1064
Human Rights Campaign, Washington, DC, January 9, 2017........... 1051
Hutchinson, Darlene, Montgomery, Alabama, January 8, 2017........ 1054
Innocence Project, Inc., New York, New York, January 17, 2017.... 1056
International Association of Chiefs of Police (IACP), Alexandria,
Virginia, December 29, 2016.................................... 1058
International Union of Police Associations, AFL-CIO, Sarasota,
Florida, November 21, 2016..................................... 1063
Kephart, Janice L., former Counsel, 9/11 Commission, former
Special Counsel to Hon. Jeff Sessions, a U.S. Senator from the
State of Alabama, U.S. Senate Committee on the Judiciary, and
former Counsel to Hon. Jon Kyl, a former U.S. Senator from the
State of Arizona, U.S. Senate Committee on the Judiciary,
November 20, 2016.............................................. 1067
Khan, Khizr M., Charlottesville, Virginia, January 9, 2017....... 1069
Know Your IX and National Alliance to End Sexual Violence,
Washington, DC, January 6, 2016................................ 1071
Lawyers' Committee for Civil Rights Under Law, John Nonna, Co-
Chair, and James P. Joseph, Co-Chair, et al., January 9, 2017.. 1077
Lawyers' Committee for Civil Rights Under Law, Kristen M. Clarke,
President and Executive Director, et al., January 9, 2017...... 1087
Lawyers for Good Government (L4GG), January 9, 2017.............. 1083
Leadership Conference on Civil and Human Rights, The, Washington,
DC, December 1, 2016........................................... 1094
Legal Aid At Work, San Francisco, California, January 5, 2017.... 1102
Lieberman, Hon. Joseph I., a former U.S. Senator from the State
of Connecticut, January 6, 2017................................ 1041
Liebman, James S., Professor of Law, Columbia Law School, New
York, New York, January 9, 2017................................ 1110
Major Cities Chiefs Association, J. Thomas Manger, President, and
Chief of Police, Montgomery County Police Department, Maryland,
November 22, 2016.............................................. 1114
Major County Sheriffs' Association (MCSA), Pontiac, Michigan,
January 6, 2017................................................ 1115
Marquez, Denisse Rojas, New York, New York, January 9, 2017...... 968
Michigan Sheriffs' Association, Terrence L. Jungel, Chief
Executive Officer and Executive Director, Lansing, Michigan,
December 20, 2016.............................................. 1118
Minor, Hon. Richard J., District Attorney, Thirtieth Judicial
Circuit, Pell City, Alabama, December 10, 2016................. 1120
Nadler, Hon. Jerrold ``Jerry,'' a Representative in Congress from
the State of New York, January 6, 2017......................... 944
National Association for the Advancement of Colored People Legal
Defense and Educational Fund, Inc. (LDF), New York, New York,
and Washington, DC, January 9, 2017............................ 1122
National Association of Assistant U.S. Attorneys (NAAUSA),
Woodbridge, Virginia, January 9, 2017.......................... 1124
National Association of Latino Elected and Appointed Officials
(NALEO) and NALEO Educational Fund, Los Angeles, California,
January 11, 2017............................................... 1125
National Association of Police Organizations (NAPO), Alexandria,
Virginia, December 22, 2016.................................... 1129
National Association of State Directors of Special Education
(NASDSE), Alexandria, Virginia, January 9, 2017................ 1130
National Association of Women Lawyers (NAWL), Chicago, Illinois,
January 10, 2017............................................... 1131
National Bar Association (NBA), Washington, DC, January 10, 2017. 1132
National Center for Learning Disabilities (NCLD), New York, New
York, January 9, 2016.......................................... 1137
National Center for Lesbian Rights (NCLR), Washington, DC,
January 17, 2017............................................... 1139
National Center for Missing and Exploited Children (NCMEC),
Alexandria, Virginia, December 15, 2016, letter to Hon. Jeff
Sessions....................................................... 1143
National Center for Missing and Exploited Children (NCMEC),
Alexandria, Virginia, December 22, 2016........................ 1144
National Center for Transgender Equality, Washington, DC, January
9, 2016........................................................ 1145
National Conference of Black Lawyers (NCBL), Washington, DC,
January 16, 2017............................................... 1147
National Education Association (NEA), Washington, DC, January 9,
2017........................................................... 1150
National Immigration Forum, Washington, DC, January 9, 2017...... 1152
National Narcotic Officers' Associations' Coalition (NNOAC),
Washington, DC, letter to President-elect Donald J. Trump,
November 20, 2016.............................................. 1153
National Religious Broadcasters (NRB), Washington, DC, January 9,
2017........................................................... 1155
National Shooting Sports Foundation (NSSF), Newtown, Connecticut,
January 9, 2017................................................ 1156
National Task Force to End Sexual and Domestic Violence (NTF),
Seattle, Washington............................................ 1157
National Urban League, New York, New York, January 9, 2017....... 1163
National Women's Law Center, Washington, DC, January 9, 2017..... 1166
New York City Bar Association, New York, New York, January 6,
2017........................................................... 1171
Olson, Theodore B., Washington, DC, January 4, 2017.............. 1176
Pai, Ajit V., Washington, DC, January 11, 2017................... 1178
Patrick, Deval L., Boston, Massachusetts, January 3, 2017........ 1179
People For the American Way (PFAW), Washington, DC, January 5,
2017........................................................... 1182
Reynolds, Gerald A., Louisville, Kentucky, November 28, 2016..... 1191
Ricci, Frank, Wallingford, Connecticut, January 7, 2017.......... 1192
Rice, Hon. Condoleezza, former U.S. Secretary of State, Stanford,
California, January 9, 2017.................................... 1038
Rotunda, Ronald D., and W. William Hodes, Esq., Orange,
California, January 6, 2017.................................... 1194
Saltzburg, Stephen A., Attorney at Law, Washington, DC, et al.,
January 7, 2017................................................ 1199
Sanders, Hon. Hank, Alabama State Senate, Montgomery, Alabama,
January 6, 2017................................................ 1204
Saxon, John D., P.C., Birmingham, Alabama, January 9, 2017....... 1207
Searcy, Steve M., Pike Road, Alabama, January 8, 2017............ 1213
Sergeants Benevolent Association of the New York City Police
Department, New York, New York, January 5, 2017................ 1214
Service Employees International Union (SEIU), Local 32BJ, January
6, 2017........................................................ 991
Sikh Coalition, New York, New York, January 9, 2017.............. 1215
Strange, Hon. Luther, Attorney General, State of Alabama,
Montgomery, Alabama, et al., December 16, 2016................. 1217
30 for 30 Campaign, National Black Leadership Commission on AIDS
(NBLCA), New York, New York, et al., January 6, 2017........... 1186
Thompson and Horton, LLP, Founding Members, Houston, Texas,
December 2, 2016............................................... 1222
Toure, Faya Rose, Civil Rights Attorney, Selma, Alabama, January
6, 2017........................................................ 1229
Turner, Evelyn Hatch, Marion, Alabama, January 4, 2017........... 1234
Turner, Hon. Albert F., Perry County Commissioner, Marion,
Alabama........................................................ 1232
UltraViolet, Nita Chaudhary and Shaunna Thomas, Co-Directors..... 1236
Valukas, Anton R., Chicago, Illinois, December 12, 2016.......... 1238
Victims and Friends United, Phoenix, Arizona, December 8, 2016... 1249
Victims of Crime and Leniency of Alabama (VOCAL), Montgomery,
Alabama, December 5, 2016...................................... 1251
Wainstein, Kenneth L., January 9, 2017........................... 1253
Wolf, Hon. Frank R., a former Representative in Congress from the
State of Virginia, January 9, 2017............................. 1040
Wyatt, Verna, Tennessee Voices for Victims, December 2, 2016..... 1255
Young Women's Christian Association of the United States of
America (YWCA USA), Washington, DC, January 10, 2017........... 1256
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Alabama Ethics Commission, Montgomery, Alabama, July 10, 1996,
meeting minutes................................................ 1258
Alabama State Bar Disciplinary Commission, Montgomery, Alabama,
February 16, 2000, final determination......................... 1261
Alabama State Bar Disciplinary Commission, Robert E. Lusk, Jr.,
Assistant General Counsel, letter to Hon. Jeff Sessions,
Montgomery, Alabama, April 16, 1998............................ 1340
American-Arab Anti-Discrimination Committee (ADC), Washington,
DC, statement.................................................. 1277
American Immigration Lawyers Association (AILA), Washington, DC,
statement...................................................... 1272
Asian Americans Advancing Justice, Washington, DC, statement..... 1282
Brazilian Worker Center, Inc., Allston, Massachusetts, statement. 1286
Brimmer, Esther, NAFSA: Association of International Educators,
Washington, DC, statement...................................... 1300
Brnovich, Mark, ``Sessions a distinguished public servant who
will uphold the law,'' The Hill, January 9, 2017, article...... 1287
Burkhart, Julie A., Trust Women Foundation, Wichita, Kansas,
statement...................................................... 1289
Cason, Mike, ``Democratic leader in Alabama Senate praises Jeff
Sessions,'' AL.com, December 7, 2016, article.................. 1293
Cassell, Paul G., and Steven J. Twist, ``Why Jeff Sessions, a
conservative attorney general, would be best for crime
victims,'' FoxNews.com, December 14, 2016, article............. 1295
Church World Service (CWS), New York, New York, statement........ 1296
Council of Parent Attorneys and Advocates (COPAA), Towson,
Maryland, statement............................................ 1297
Ford, Hon. Craig, Alabama State House of Representatives,
statement...................................................... 1303
Haynes, Rev. Dr. Frederick Douglass, III, statement.............. 1360
Hebert, J. Gerald, Joseph D. Rich, and William Yeomans, ``Jeff
Sessions says he handled these civil rights cases. He barely
touched them.'' The Washington Post, January 3, 2017, op-ed
article........................................................ 1304
Hebert, J. Gerald, Washington, DC, supplemental statement........ 1310
King, Coretta Scott, Martin Luther King, Jr., Center for
Nonviolent Social Change, Inc., Atlanta, Georgia, March 19,
1986, letter................................................... 1313
Krauss, Michael I., ``The Law Professors' Scandalous Statement
Against Jeff Sessions,'' Forbes, January 5, 2017, article...... 1323
Lawyers' Committee for Civil Rights Under Law, Washington, DC,
statement...................................................... 1328
Leadership Conference on Civil and Human Rights, The, Washington,
DC, statement.................................................. 1306
Major Cities Chiefs Association, Washington, DC, statement....... 1345
Nance, Penny, ``Sessions will fight for women: Column,'' USA
Today, December 28, 2016, article.............................. 1351
National Association for the Advancement of Colored People
(NAACP), Federal Legislative Civil Rights Report Card,
Washington, DC, January 17, 2017, addendum..................... 1346
National Association for the Advancement of Colored People Legal
Defense and Educational Fund, Inc. (LDF), New York, New York,
and Washington, DC, January 10, 2017, supplement............... 1349
National Association of Assistant U.S. Attorneys (NAAUSA),
Woodbridge, Virginia, statement................................ 1353
National Domestic Workers Alliance (NDWA), New York, New York,
statement...................................................... 1354
National Fraternal Order of Police, Washington, DC, statement.... 1356
Parker, Willie, M.D., Board Chair, Physicians for Reproductive
Health, New York, New York, January 10, 2017, statement........ 1357
Rich, Joseph D., Lawyers' Committee for Civil Rights Under Law,
Washington, DC, statement...................................... 1363
Ross, Hon. Quinton T., Jr., Alabama State Senate Minority Leader,
statement...................................................... 1366
Saporta, Vicki, National Abortion Federation, Washington, DC,
statement...................................................... 1367
Schumer, Hon. Chuck, a U.S. Senator from the State of New York,
February 12, 2009, letter...................................... 1372
Severino, Carrie, `` `Unreliable and Misleading' Charges against
Sessions,'' National Review online, December 22, 2016, article. 1373
Shelton, Cleophus, Perry County, Alabama, September 4, 1984,
official absentee ballot....................................... 1376
Shelton, Eddie, Perry County, Alabama, September 4, 1984,
official absentee ballot....................................... 1377
Shelton, Fannie, Perry County, Alabama, September 4, 1984,
official absentee ballot....................................... 1378
Shelton, Loretta, Perry County, Alabama, September 4, 1984,
official absentee ballot....................................... 1379
Shelton, Mary, Perry County, Alabama, September 4, 1984, official
absentee ballot................................................ 1380
Shelton, Mattie, Perry County, Alabama, September 4, 1984,
official absentee ballot....................................... 1381
Shelton, Mims, Perry County, Alabama, September 4, 1984, official
absentee ballot................................................ 1382
Shepard, Judy, Matthew Shepard Foundation, statement............. 1383
Sierra Club, Michael Brune, Executive Director, et al., statement 1337
Thompson, Larry, ``Jeff Sessions deserves to be the next U.S.
attorney general,'' The Washington Post, January 9, 2017, op-ed
article........................................................ 1387
We Belong Together, online campaign, statement................... 1390
Woodson, Robert L., Sr., Woodson Center, Washington, DC,
statement...................................................... 1392
ADDITIONAL SUBMISSIONS FOR THE RECORD
Submissions for the record not printed due to voluminous nature,
previously printed by an agency of the Federal Government, or
other criteria
determined by the Committee, list.............................. 1395
Aaron, Marjorie Corman, Professor, University of Cincinnati
College of Law, et al., 1,424 faculty members from 180 law
schools in 49 states, January 9, 2017, letter:
https://www.judiciary.senate.gov/imo/media/doc/
2017.01.09%20Law%
20Professor%20Statement%20re%20Sessions%20Nomination.pdf... 1395
Butler, Jennifer, Reverend, Faith in Public Life, Washington, DC,
et al., more than 2,500 faith leaders, statement:
https://www.judiciary.senate.gov/download/01/10/2017/faith-
leaders-
opposition-to-trump-cabinet................................ 1395
Duncan, A. Cameron, University of Virginia School of Law, et al.,
open letter from 1,060 Law Students to President-elect Donald
J. Trump, December 22, 2016:
https://www.judiciary.senate.gov/download/open-letter-from-
1060-
law-students............................................... 1395
Executive Office for United States Attorneys, United States
Attorney's Office, Southern District of Alabama, January 27-31,
1992, final evaluation report:
www.judiciary.senate.gov/imo/media/doc/
Executive%20Office%20of%20
U.S.%20Attorneys%20final%20report,%20Sessions.pdf.......... 1395
Gershman, Bennett L., Professor of Law, Pace University, White
Plains, New York, January 6, 2017, letter:
https://www.judiciary.senate.gov/imo/media/doc/
01.09.17%20Prof%20
Ben%20Gershman1.pdf........................................ 1395
Guinier, Lani, Lift Every Voice: Turning a Civil Rights Setback
into a New Vision of Social Justice, New York: Simon and
Schuster, 1998, chap. 7, ``Selma, Alabama, June 1985: Building
Bridges from the Bottom Up,'' pages 183-219, excerpt:
https://www.judiciary.senate.gov/imo/media/doc/
LaniGuinierLiftEvery
VoiceCh7.pdf............................................... 1395
Hebert, J. Gerald, former Acting Chief, Civil Rights Division,
U.S. Department of Justice, Washington, DC, January 9, 2016,
statement:
https://www.judiciary.senate.gov/imo/media/doc/J.%20Gerald%20
Hebert%20-%20Statement%20-%20Opposition.pdf................ 1395
Leadership Conference on Civil and Human Rights, The, Washington,
DC, December 1, 2016, letter:
https://www.judiciary.senate.gov/imo/media/doc/Sessions%20
Nomination%2012%201%2016.pdf............................... 1395
Liebman, James S., Associate Professor of Law, Columbia
University School of Law, appendix to January 9, 2017, letter:
https://www.judiciary.senate.gov/imo/media/doc/Appendix
%201%20to%20Liebman%20Letter%20re%20Sessions%20
Nomination%20010917.pdf.................................... 1395
National Association for the Advancement of Colored People
(NAACP), ``NAACP Federal Legislative Report Card, 113th
Congress, January 3, 2013, through December 16, 2014,''
Washington, DC, report:
https://www.judiciary.senate.gov/download/naacp_-report-on-
sessions................................................... 1395
National Association for the Advancement of Colored People Legal
Defense and Educational Fund, Inc. (LDF), ``Report in
Opposition to the Nomination of Jefferson Beauregard Sessions
III to be Attorney General of the United States,'' New York,
New York, and Washington, DC, January 9, 2017, report:
https://www.judiciary.senate.gov/imo/media/doc/2017-01-09%20
NAACP%20LDF%20Report%20in%20Opposition%20to%20Sessions.pdf. 1395
Patrick, Deval L., Assistant Attorney General, Civil Rights
Division, U.S. Department of Justice, ``Notice of Findings from
Investigation of Easterling Correctional Facility,'' March 27,
1995, letter and report:
https://www.judiciary.senate.gov/imo/media/doc/
Hitching%20Post%20
Report%20-%20Easterling1.pdf............................... 1396
Patrick, Deval L., Assistant Attorney General, Civil Rights
Division, U.S. Department of Justice, ``Notice of Findings from
Investigation of Julia Tutwiler Prison for Women,'' March 27,
1995, letter and report:
https://www.judiciary.senate.gov/download/01/10/2017/
hitching-post-
report_-tutwiler........................................... 1396
UltraViolet, Nita Chaudhary and Shaunna Thomas, Co-Founders,
petition:
https://act.weareultraviolet.org/constituents/
?tcid=767.tc7597.HKXtdS.................................... 1396
United States Steel LLC v. TIECO Inc., U.S. Court of Appeals,
Eleventh Circuit, August 17, 2001, decision:
http://caselaw.findlaw.com/us-11th-circuit/1481550.html...... 1396
CONFIRMATION HEARING ON THE
NOMINATION OF HON. JEFF SESSIONS
TO BE ATTORNEY GENERAL
OF THE UNITED STATES
----------
TUESDAY, JANUARY 10, 2017
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m., in
Room SR-325, Russell Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley, Hatch, Graham, Cornyn, Lee,
Cruz, Flake, Feinstein, Leahy, Durbin, Whitehouse, Klobuchar,
Franken, Coons, Blumenthal, and Hirono.
Chairman Grassley. Before we actually start the hearing, I
am going to give a point of personal privilege to former
Chairman and my friend, Senator Leahy, to speak for a few
seconds that he asked to do, and I think it is very appropriate
that you do what you said you were going to do.
OPENING STATEMENT OF HON. PATRICK LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Senator Leahy. Well, thank you, Mr. Chairman, and I
appreciate the courtesy. The Senate Judiciary Committee
convenes for the first time in the 115th Congress, a historic
moment in the Committee's 200-year history. Last week, Senator
Dianne Feinstein was named the Committee's Ranking Member, the
first time in American history when a woman has served in this
capacity. And having been either Chairman or Ranking Member for
the past 20 years, I cannot think of anybody better.
It is striking that 352 Members have served on the
Committee, and only six of those, who happen to be Democrats,
have been women. Three of those six women are proudly serving
on this important Committee today: Senator Feinstein, Senator
Klobuchar, and Senator Hirono.
So after these 20 years, I welcome Senator Feinstein. When
we grapple with some of the most pressing issues facing our
country, we Americans can be proud that she is here, and I
applaud you for this.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Feinstein. Thank you.
Chairman Grassley. Thank you, Senator Leahy.
Good morning. I welcome everyone to this very important
hearing to consider the nomination of our colleague Senator
Sessions to serve as the 84th Attorney General of the United
States.
First, I want to set out a couple of ground rules. I want
to handle this hearing the same way that I handled the hearing
for Attorney General Lynch's nomination. And it is also the
same way that Chairman Leahy handled previous hearings. I want
everyone to be able to watch the hearing without obstruction.
If people stand up and block the views of those behind them or
speak out of turn, it is simply not fair, it is simply not
considerate to others, so officers will immediately remove
those individuals.
Now, before my opening statement, let me explain how we
will proceed.
Senator Feinstein and I will give our opening remarks. Then
Senators Shelby and Collins will introduce the nominee.
Following Senator Sessions' opening remarks, we will begin our
first round of questions. Each Senator will have an initial 10-
minute round for questions. After the first round, we are going
to do 8-minute rounds of questions. I want everyone to know
that I am prepared to stay here as long as Members have
questions that they would like to ask. Again, that is the way I
handled Attorney General Lynch's nomination. I think that is
the most fair way to proceed for both Members as well as our
distinguished nominee.
I welcome our new Members to this Committee. I look forward
to working with all of the new Members as well as the ones that
are repeating serving on this Committee. I would also like to
recognize and welcome a number of important audience members:
former Attorneys General Meese and Mukasey, and also our former
colleague Senator Kyl, a former Member of this Committee; and I
see the Attorney General for Ohio is here as well, a former
colleague of ours.
Finally, before my opening remarks, I congratulate Senator
Feinstein on your appointment and the decision to take over the
Ranking Membership. We have always had a good working
relationship through several things we have done, both
legislatively and as leaders of the Drug Caucus, and I
appreciate very much the opportunity to work with you.
Senator Feinstein. Thank you.
Chairman Grassley. Thank you. With that I will now start my
opening comments.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Our hearing today hardly introduces Senator Sessions to the
Committee. No; we are here today to review the character and
the qualifications of a colleague who has served alongside us
in the Senate for 20 years. That includes his time as a Ranking
Member of this Committee. We know him well. We know the policy
positions he has taken as a legislator. I have been on both
sides of debates with the distinguished Senator Sessions.
Having served with him for so long, we pretty well know whether
he supports your policy positions or opposes them. He tells us
so with his usual thoughtfulness, humility, and, more
importantly, respect. As a former Chairman of this Committee
has put it, Senator Sessions is ``wonderful to work with.'' We
know him to be, as another senior Democrat on this Committee
described him, ``a man of his word.'' As a third senior
colleague put it, a Democrat as well: ``He is always a
gentleman. He is straightforward and fair.''
Most of all, the Members of this Committee know him to be a
leader who has served the people of Alabama--and all
Americans--with integrity, with dedication, and with courage.
That describes how I know the nominee for the 20 years that I
have served with him.
As former Chairman Leahy observed the last time a new
President took office, it is ``important that the Justice
Department have a senior leadership in place without delay . .
. . We need the Justice Department to be at its best.''
Perhaps my good friend Senator Schumer said it best when he
observed that we should ``move to a vote, hopefully sooner
rather than later.'' And when we do, as he said, we ``won't be
voting for or against the President's policies.'' In summary,
Senator Schumer said we will be voting for a colleague with a
first-rate legal mind whose record proves his commitment to
just law enforcement and eminently qualified to lead the
Department of Justice.
I have been encouraged by the initial support many of our
colleagues on both sides of the aisle have expressed for
Senator Sessions' nomination. So I look forward to hearing from
Senator Sessions and moving to his appointment without delay.
Senator Sessions' record is a life of public service. And
so we know his story. He was raised in the small town of
Hybart, Alabama, where his father owned and ran a small country
store. He then studied at Huntingdon College and the University
of Alabama before practicing law in Russellville and Mobile.
Senator Sessions has always been an active member of his
community. He taught school before attending law school and
taught Sunday School at Ashland Place United Methodist Church.
He served our Nation in the Army Reserve, attaining the rank of
Captain.
After his time in private practice, Senator Sessions served
as an Assistant U.S. Attorney in the Southern District of
Alabama. He then headed that office after the Senate confirmed
him as U.S. Attorney, a post he held for a dozen years. So all
told, this Senator, colleague of ours, has served 15 years as a
Federal prosecutor in the Department that he will soon head.
It was during that time that he oversaw the investigation
of Klansman Francis Hays for the brutal abduction and murder of
a Black teenager, Michael Donald. He made sure that case was
brought to State court where the defendant was eligible for and
received the punishment that he justly deserved--the death
penalty. His office then successfully prosecuted that
murderer's accomplice in Federal court.
Based on his prosecutorial record, the people of Alabama
elected him their Attorney General and then their Senator. He
has served with us since 1997. And as our former Chairman
observed, this Committee has relied on him for his
prosecutorial experience during the course of his Senate
service.
Throughout his public service, both within the Department
and outside of the Department, he has raised his hand and
served when called upon. He has done his duty, enforced the law
fairly, and let the chips fall where they may.
Reflecting on this record of service, it is no surprise
then that Senator Sessions was also an Eagle Scout. Other
Members of this Committee know, as I do, that the Scouts'
motto, ``Be Prepared,'' sits on his desk in his Senate office.
Senator Sessions' entire life of dedicated public service
has prepared him for this day. If he is confirmed--and I expect
that he will be--Senator Sessions will shed his role as a
legislator who writes law and he will take on the task of
enforcing the laws Congress has written. He has made this
transition before, when the people of Alabama elected him their
Senator based on his record of service as U.S. Attorney and
Alabama Attorney General.
As one Member of this Committee observed about a lawyer's
transition into the role of a judge: ``There are turning points
in a person's life when they put away things of the past and
move into new responsibilities.'' Serving as our Nation's
Attorney General will mark another such turning point in
Senator Sessions' distinguished career. And every Member of
this Committee knows from experience that, in his new role,
Senator Sessions will be a leader for law and order
administered without regard to person.
Leadership to that end is exactly what the Department now
needs. It should go without saying that the Department is
tasked with the responsibility of enforcing our laws--all of
our laws--in a dispassionate and evenhanded way.
We write the laws. The Executive enforces them, faithfully.
This is a simple but very foundational principle.
Unfortunately, for the last several years, the Department
has simply declined to enforce some laws the executive branch
found obnoxious. The Department's failure to enforce the law
has run the gamut of issues from criminal law to our Nation's
duly enacted immigration laws.
It is true that each branch of Government has an
independent duty to assess the constitutionality of the laws it
writes, it administers, and it adjudicates. But it is equally
true that the Executive has a constitutional responsibility to,
as we all know, ``take care that the laws be faithfully
executed.'' I know our colleague, this Senator Sessions,
respects the legislative process and the prerogative of
Congress to write the law. As he explained during the
confirmation hearing that we held for John Ashcroft's
nomination to serve as Attorney General, ``The Attorney General
is a law enforcer. There is a big difference between a
politician and a Senator where we vote on policy and executing
that policy.''
I look forward to hearing from Senator Sessions on how he
will transition from voting on policy matters to enforcing the
laws he has labored so long to improve and to sustain.
Just as he respects Congress' duly enacted laws, Senator
Sessions knows and respects the importance of an independent
Attorney General at the Department's helm. When he has
questioned other candidates for the Office of Attorney General,
he has made plain the priorities of an Attorney General's
independence. He sought assurances on this account during the
confirmation hearing for Attorney General Eric Holder--a
nominee that, it happens, Senator Sessions and I both supported
despite policy disagreements with Eric Holder. Senator Sessions
asked at that time: ``You are not threatening and not
guaranteeing you are going to prosecute people until you fairly
evaluate all the facts and the evidence and the law they
thought they were dealing with at the time?''
During this Committee's hearing on the confirmation of
another Attorney General, Senator Sessions reflected on the
obligations of the people as he knew them from his service in
Alabama: ``You speak for the legal interests of the State.'' As
a result, he said, ``there are times when the Attorney General
represents the State, he has an obligation and a duty
regardless of what the parties to a litigation may say''--
including when one of those parties is the Government--``to
ensure that it is fair for all the people of the State.''
This firm grasp on the separation of powers equips Senator
Sessions to provide the Department with independent leadership
of the highest priority. He knows the Department's obligations
well--not only because he knows the Department but because he
has seen those obligations observed in the breach from his seat
beside us in the Senate.
To this legislator, the Department's failure in the just
enforcement of our laws is not just a policy disappointment on
a particular issue. It is an affront to the very separation of
powers that defines our role and the voice of the people that
warrants our votes. I imagine Senator Sessions may have
thoughts on that question as well, and I hope to hear those
points.
On this Committee, we do not always agree on the right way
to handle the complex policy issues we consider. And when you
have served in the Senate as long as Senator Sessions and I
have, you are bound to find at least a few points of
disagreement with even the most like-minded colleagues.
But Senator Sessions' two decades of service beside me
testify without question to this: He is a man of honor and
integrity, dedicated to the faithful and fair enforcement of
the law, who knows well and deeply respects the Department of
Justice and its constitutional role. I look forward to hearing
from him about this vision and plans for the Department.
[The prepared statement of Chairman Grassley appears as a
submission for the record.]
And now it is Senator Feinstein's turn for her words.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman, and I
would like to thank Senator Leahy also for his words.
If I may, I would like to begin by just quickly introducing
some Californians in the audience: Congresswoman Maxine Waters
from Los Angeles, Congresswoman Barbara Lee from the Bay Area,
also Denise Rojas, who is a DREAMer who has been enormously
successful, I had the privilege of writing an article about
her, and also the Reverend Dr. Amos Brown, whom I have known
for 40 years, and the Reverend Dr. Frederick Haynes. They are
part of the ministerial delegation here today.
The Senator before us this morning is someone that many of
us on this Committee have worked with for some 20 years, and
that makes this very difficult for me. I committed to Senator
Sessions in our private meeting, and I will say it again here:
The process is going to be fair and thorough.
But, today, we are not being asked to evaluate him as a
Senator. We are being asked to evaluate him for the Attorney
General of the United States, the chief law enforcement for the
largest and best democracy in the world.
As Attorney General, his job will not be to advocate for
his beliefs; rather, the job of the Attorney General is to
enforce Federal law, even if he voted against the law, even if
he spoke against it before it passed, even if he disagrees with
the precedent saying that the law is constitutional. Most
importantly, his job will be to enforce Federal law equally--
equally--for all Americans. And this job requires service to
the people and the law, not to the President.
The President-elect said to his opponent during a debate,
``If I win, I am going to instruct my Attorney General to get a
special prosecutor to look at your situation.''
Mr. Chairman, that is not what an Attorney General does. An
Attorney General does not investigate or prosecute at the
direction of the President. Nor do Attorneys General wear two
hats--one as the President's lawyer and one as the people's
lawyer. That model has failed. Rather, the Attorney General
must put aside loyalty to the President. He must ensure that
the law and the Constitution come first and foremost, period.
President Lincoln's Attorney General, Edward Bates, I think
said it best when he said this: ``The office I hold is not
properly political, but strictly legal; and it is my duty,
above all other ministers of state, to uphold the law and to
resist all encroachments, from whatever quarter.'' That is the
job of the Attorney General.
If confirmed, Senator Sessions will be the top official
charged with faithfully and impartially enforcing all Federal
law and protecting our fundamental right to vote from all
incursions, whether they be foreign or domestic. His duty will
be to enforce and protect our civil rights and constitutional
freedoms, including a woman's right to choose. He will run the
Department that ensures those who commit hate crimes are held
accountable. And he will be charged with protecting consumers
and taxpayers from fraud and making sure that corrupt public
officials are held accountable. He will prosecute polluters
based on Federal law. And it is the Attorney General who must
ensure that this Government follows the law, does not ever
torture again. This is an awesome responsibility and an
enormous job.
What we must do now in these hearings is determine what
type of Attorney General Senator Sessions will be, if
confirmed. And let me express a deep concern. There is so much
fear in this country. I see it, I hear it, particularly in the
African-American community, from preachers, from politicians,
from everyday Americans.
As Mrs. Evelyn Turner of the Marion Three said in her
passionate letter to this Committee: ``I am very troubled by
his stance against civil rights in the more recent past. As a
U.S. Senator, he supported no laws or causes which suggest that
he has changed.''
Throughout his Senate career, Senator Sessions has
advocated an extremely conservative agenda. For example, he
voted ``no'' and spoke for nearly 30 minutes in this Committee
against a Leahy amendment 2 years ago that expressed the sense
of the Senate that the United States would not bar people from
entering this country based on their religion. He voted against
each of three bipartisan comprehensive immigration bills--in
2006, 2007, and 2013.
Twice he voted against the DREAM Act, the bill for
undocumented youth, known as ``DREAMers,'' who were brought
here as children through no choice of their own, calling it a
``reckless proposal for mass amnesty.''
He voted against efforts to prohibit the use of
waterboarding and other so-called enhanced interrogation
techniques, calling them lawful and praising Attorney General
Mukasey in 2008 for refusing to rule out the use of
waterboarding in the future. These interrogation techniques
are, and were at the time, illegal. And thanks to a provision
Senator McCain placed in the Defense Authorization Bill this
past year, they are now prohibited from use.
In addition, Senator Sessions voted against the Matthew
Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which,
among other things, expanded the hate crimes law to cover
sexual orientation and gender identity. Arguing against the
hate crimes law in 2009, he said this: ``Today I am not sure
women or people with different sexual orientations face that
kind of discrimination. I just do not see it.''
Well, this Senator, regretfully, sees it. Hate crimes are
happening. The Department of Justice must see it, must
investigate it, and prosecute it appropriately. Those are votes
that are deeply concerning. They are recent, they are
important, and they clearly show this Senator's point of view.
Now, for all these reasons, this hearing must determine
clearly whether this Senator will enforce laws he voted
against. We, the American people, want to know how he intends
to use this awesome power of the Attorney General if he is
confirmed. Will he use it fairly? Will he use it in a way that
respects law and the Constitution? Will he use it in a way that
eases tensions among our communities and our law enforcement
officers? Will he be independent of the White House? Will he
tell the President ``no'' when necessary, and faithfully
enforce ethics laws and constitutional restrictions?
So we will ask questions, and we will press for answers.
Ultimately, we must determine whether Senator Sessions can be
the Attorney General for all of our people.
Mr. Chairman, I would like to conclude with one final
point. We cannot ignore that there are deep concerns and
anxieties throughout America. There is a deep fear about what a
Trump administration will bring in many places, and this is the
context in which we must consider Senator Sessions' record and
nomination to become the chief law enforcement officer of
America. Communities across this country are concerned about
whether they will be able to rely on the Department of Justice
to protect their rights and freedoms. These freedoms are so
cherished. They are what make us unique among nations.
There have been sit-ins, protests, and write-ins, and the
Committee has received letters of opposition from 400 different
civil rights organizations, 1,400 law professors, 1,000 law
students, a broad task force of organizations that oppose
domestic violence, 70 reproductive health organizations, and
many, many others. All these letters express deep anxiety about
the direction of this country and whether this nominee will
enforce the law fairly, evenly, without personal bias.
So I hope today's questions are probing and the answers are
fulsome. Ladies and gentlemen, this is the only way we have to
know whether this man can detach himself from the President and
from his record and vote in full accordance with the laws of
the United States of America.
Thank you very much, Mr. Chairman.
Chairman Grassley. And thank you, Senator Feinstein.
Before I turn to Senators Shelby and Collins for their
opening statement, I would note that the Committee received a
letter from former Secretary of State Condoleezza Rice
indicating that she had hoped to join our colleagues in
introducing Senator Sessions. She strongly supports his
nomination. It is a powerful letter, and I hope my colleagues
will take time to read it, and I would like to have it entered
in the record at this point.
[The letter appears as a submission for the record.]
Chairman Grassley. Now to Senator Shelby and Senator
Collins, in that order. Proceed.
PRESENTATION OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE
STATE OF ALABAMA AND NOMINEE TO BE
ATTORNEY GENERAL OF THE UNITED STATES, BY
HON. RICHARD SHELBY, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Shelby. Chairman Grassley, Ranking Member
Feinstein, thank you for allowing me to be a part of this
historic hearing today.
Although my friend and colleague Jeff Sessions is well
known to the Members of this Committee, it is my distinct
privilege to introduce him as President-elect Donald Trump's
nominee to serve as our next United States Attorney General.
Before joining the Senate, Jeff Sessions began his
distinguished career as a practicing attorney and then served
as the United States Attorney for Alabama's Southern District
before ultimately becoming the Attorney General of the State of
Alabama.
During the past 20 years here in the U.S. Senate that I
have served with Jeff Sessions, I have had the opportunity to
know him well, not just as a skilled attorney with an
accomplished record as a prosecutor and as a legislator, but as
a man of extraordinary character. I have the highest regard not
only for his intellect but for his integrity.
Unfortunately, since the announcement of his nomination,
Jeff's political opponents have attacked his character with
baseless and tired allegations. But, in reality, Jeff Sessions'
extensive record of treating all Americans equally under the
law is clear and well documented.
Throughout his decades of public service, including his
impressive tenure on this Committee, Jeff's commitment to
upholding the rule of law I believe is unparalleled. The
integrity, humility, and gravity with which Jeff Sessions will
approach the office of Attorney General of the United States is
unquestionable.
I have no doubt, Mr. Chairman, that he will apply the law
with the impartiality that is required of the job. I am also
confident that this Committee will report favorably and
expeditiously Jeff Sessions' nomination to be the next Attorney
General of the United States.
Chairman Grassley. Thank you, Senator Shelby.
Now, Senator Collins.
PRESENTATION OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE
STATE OF ALABAMA AND NOMINEE TO BE
ATTORNEY GENERAL OF THE UNITED STATES, BY
HON. SUSAN COLLINS, A U.S. SENATOR FROM THE STATE
OF MAINE
Senator Collins. Thank you, Mr. Chairman.
Mr. Chairman, Senator Feinstein, Members of this
distinguished Committee, I am pleased to join Senator Shelby in
presenting my friend and colleague, Senator Jeff Sessions, and
to offer my support for his nomination to be our next Attorney
General.
[Outburst in audience.]
Senator Collins. Jeff Sessions and I were first sworn in to
the United States Senate on the very same day. In the 20 years
since, we have worked closely on some issues and on opposite
sides on others. In fact, it would be fair to say that we have
had our share of vigorous debates and policy disagreements.
Through these experiences, I have come to know Senator
Sessions professionally as a trusted colleague and personally
as a good friend. I can vouch confidently for the fact that
Jeff Sessions is a person of integrity, a principled leader,
and a dedicated public servant.
As a Senator, Jeff Sessions has worked across the aisle to
lead important legislative reforms. He has worked with Senator
Dick Durbin to pass the Fair Sentencing Act, a law that
addressed the unfair racial disparity in crack cocaine
sentencing. He worked with Senator Ted Kennedy to pass the
Prison Rape Elimination Act and with Senator Chris Coons on the
reauthorization of the Victims of Child Abuse Act.
An area where Senator Sessions and I have worked together
is in opposing unfair trade agreements and practices that hurt
American workers.
What I want this Committee and the American people to know
is that Jeff Sessions is the same genuine, fair-minded person
in unguarded private moments as he is in the halls of the
Senate.
We first came to know each other during dinners with other
Members of our Senate class where we discussed everything from
our politics to our families. I have never witnessed anything
to suggest that Senator Sessions is anyone other than a
dedicated public servant and a decent man.
In 1980, long before he ran for the Senate, or even dreamed
of being Attorney General, Jeff Sessions sponsored the first
African-American member of the Mobile Lions Club. As U.S.
Attorney, he provided leadership in the successful convictions
of two Klan members who had murdered an African-American
teenager. As Ranking Member of the Senate Judiciary Committee
in 2009, he appointed the first African American to serve as
Chief Counsel to the Republican Members. My friends, these are
not the actions of an individual who is motivated by racial
animus.
In spite of this strong record, Senator Sessions'
nomination has generated controversy. He has had to withstand
some very painful attacks on his character, both years ago and
again today, with little or no acknowledgment of his
accomplishments and actions or the responses he has made to the
accusations levied against him.
As this Committee debates this nomination, I would draw
your attention to an important epilogue to Jeff Sessions'
nomination 31 years ago to be a Federal judge. The late Senator
Arlen Specter of Pennsylvania was a Member of the Judiciary
Committee when the Sessions nomination was considered in 1986.
Senator Specter, then a Republican, voted against Jeff
Sessions. Years later, in 2009, Senator Specter had switched
parties. He was asked by a reporter if he regretted any of the
more than 10,000 votes he had cast. Out of all of those votes,
then-Democratic Senator Specter cited just one. It was his vote
against confirming Jeff Sessions as a Federal judge.
When asked why, Senator Specter replied, ``Because I have
since found that Senator Sessions is egalitarian.'' In other
words, once Senator Specter served with Jeff Sessions and had
the opportunity to get to know him, he changed his mind.
I hope that you will keep Arlen Specter's reflections in
mind as this Committee evaluates Senator Sessions' public
service, his character, and his fidelity to the rule of law.
The Members of this Committee have an advantage that Senator
Specter did not. The vast majority of you have already served
with Senator Sessions, and you know him well. If this Committee
places its trust in him, I have every confidence that Jeff
Sessions will execute the office of Attorney General honestly,
faithfully, and fully in the pursuit of justice.
Thank you, Mr. Chairman. Thank you, Ranking Member
Feinstein and Members of this Committee.
Chairman Grassley. And I thank both of our colleagues for
your powerful statements. I appreciate it very much. And you
are free to go, and we will call the nominee at this point.
[Pause.]
Chairman Grassley. Senator Sessions, before you are seated,
I would like to administer the oath. Would you raise your hand,
please, and answer this question? Do you swear that the
testimony you are about to give before this Committee will be
the truth, the whole truth, and nothing but the truth, so help
you God?
Senator Sessions. I do.
Chairman Grassley. Thank you, and please be seated.
Senator Sessions, it is our normal process, if you desire,
to introduce people that are with you, including your family I
am sure you are very proud of. You are free to do that, and
then go immediately to your opening statement.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA AND NOMINEE TO BE ATTORNEY GENERAL OF THE UNITED
STATES
Senator Sessions. Thank you, Mr. Chairman. I believe we
have been joined by my grandchildren. It is an honor for me to
be here and to have my family with me.
First, my wife, Mary, my best friend, of 47 years. Without
her love and support, none of this would have been possible for
me.
And we are so proud of our three children who are here
today. Mary Abigail Reinhardt, our oldest, is married to a
naval officer, Commander Paul Reinhardt of the USS Alabama.
They are now stationed in the Pacific Coast. They have two
children, Jane Ritchie and Jim Beau, and they wish me well this
morning.
My daughter Ruth Walk--Ruth, would you stand up?--and her
husband, John Walk. John is an attorney with the Department of
Homeland Security, and they have four children, as you see
before you today: Gracie and Hannah, and Joanna and Phoebe.
Phoebe and Joanna are twins, and we are so proud of them.
My son, Sam, is a graduate of Auburn and Alabama Law
School. Sorry, Sam, about the game last night.
[Laughter.]
Senator Sessions. Lindsey, congratulations, wherever he is.
Sam is an attorney in Birmingham, and he is married to
Angela Stratas. They have four children: Alexa, Sophia, Lewis,
and Nicholas.
Ten grandchildren, the oldest is 9, and you can imagine the
week we had at the beach this summer in Alabama.
Finally, I want to express how humbled I am to have
received such overwhelming support and encouragement from our
Nation's law enforcement community. Many are here today.
Mr. Chairman, with your permission, I would like to ask
those present please to stand and be recognized, the law
enforcement members that are here today. Would you please
stand? Every major law enforcement organization in America has
endorsed my candidacy. I feel the weight of the confidence they
have placed in me, and, gentlemen and ladies, I will do my best
to be worthy of that. And if I may, Mr. Chairman, yesterday was
Law Enforcement Officer Appreciation Day. Sadly, on that day we
lost two of our brave officers.
Orlando Police Department Master Sergeant Debra Clayton,
one of the first officers to respond to the Orlando night club
shooting in June, was shot and killed while confronting a
subject wanted for murder. Sergeant Clayton, a 17-year veteran
of the force, was married with two children.
While assisting in the search for that assailant, Orange
County Deputy First Class Sheriff Norman Lewis was killed in a
traffic accident on his motorcycle. He was an 11-year veteran
of the sheriff's office. These honorable individuals have
dedicated their lives to keeping their communities safe, and we
should remember their service and keep them and their families
in our prayers.
Chairman Grassley, Ranking Member Feinstein, distinguished
Members of the Committee, I am honored to appear before you
today. I thank you for the opportunity to respond to your
questions as you discharge your duty in the appointment process
as prescribed by our Constitution.
[Outburst in audience.]
Senator Sessions. Mr. Chairman, if I might, I want to thank
my dear friends and colleagues, Senator Richard Shelby and
Senator Susan Collins, for their kind and generous
introductions. It was very touching. It is hard to believe,
really, that the three of us have served together in this body
for almost 20 years.
When I arrived in the Senate in 1997, I probably would not
have anticipated becoming so close with a colleague from
Maine--two people from the northern-most and southern-most
parts of our country.
[Outburst in audience.]
Senator Sessions. It took us a while to understand each
other's accents, but once we did, we became fast friends. Of
course, Richard Shelby and I never had that problem. He has
been a steadfast friend, and I think we have been a pretty good
team representing the interests of Alabama and the United
States.
I want to thank President-elect Donald Trump for the
confidence and trust he has shown in me by nominating me to
serve as the Attorney General of the United States. I feel the
weight of an honor greater than I have aspired to. If I am
confirmed, I will commit to you and to the American people to
be worthy of the office and the special trust that comes with
it.
So I come before you today as a colleague who has worked
with you for years and some of you 20 years. You know who I am.
You know what I believe in. You know that I am a man of my word
and can be trusted to do what I say I will do. You know that I
revere the Constitution, that I am committed to the rule of
law; and you know that I believe in fairness and impartiality
and equal justice under law.
Over the years, you have heard me say many times that I
love the Department of Justice. The Office of Attorney General
of the United States is not a normal political office, and
anyone who holds it must have total fidelity to the laws and
the Constitution of the United States. He or she must be
committed to following the law. He or she must be willing to
tell the President or other top official ``no'' if he or she
overreaches. He or she cannot be a mere rubberstamp. He or she
must set the example for the employees of the Department to do
the right thing and ensure that, when they do the right thing,
they know the Attorney General will back them up, no matter
what politician might call or what powerful special interest,
influential contributor, or friend might try to intervene. The
message must be clear: Everyone is expected to do their duty.
That is the way I was expected to perform as an Assistant
United States Attorney working for Attorney General Meese in
part of my career. And that is the way I trained my assistants
when I became United States Attorney. And, if confirmed, that
is the way I will lead the Department of Justice.
In my over 14 years in the Department of Justice, I tried
cases personally of every kind: drug trafficking, very large
international smuggling cases, many firearms cases, other
violent crimes, a series of public corruption cases of great
significance, financial wrongdoing, and environmental
violations. Our office supported historic civil rights cases
and major civil cases. Protecting the people of this country
from crime, and especially from violent crime, is a high
calling of the men and women of the Department of Justice.
Today, I am afraid, it has become more important than ever.
Since the early 1980s, good policing and prosecutions over
a period of years have been a strong force in reducing crime,
making our communities safer. Drug use and murders are half
what they were in 1980 when I became a United States Attorney.
I am very concerned that the recent jump in the violent crime
and murder rates are not anomalies, but the beginning of a
dangerous trend that could reverse those hard-won gains that
have made America a safer and more prosperous place. The latest
FBI statistics show that all crime increased nearly 4 percent
from 2014 to 2015--the largest increase since 1991--with
murders increasing nearly 11 percent--the single largest
increase since 1971.
In 2016, there were 4,368 shooting victims in Chicago. In
Baltimore, homicides reached the second highest per capita rate
ever. The country is also in the throes of a heroin epidemic,
with overdose deaths more than tripling between 2010 and 2014.
Tripling. Nearly 50,000 people a year die from drug overdose.
Meanwhile, illegal drugs flood across our southern border and
into every city and town in the country, bringing violence,
addiction, and misery.
We must not lose perspective when discussing these
statistics. We must always remember that these crimes are being
committed against real people, real victims. It is important
that they are kept in the forefront of our minds in these
conversations and to ensure that their rights are protected.
These trends cannot continue. It is a fundamental civil
right to be safe in your home and your community. If I am
confirmed, we will systematically prosecute criminals who use
guns in committing crimes. As United States Attorney, my office
was a national leader in gun prosecutions nearly every year. We
will partner with State and local law enforcement to take down
these major drug-trafficking cartels and dismantle criminal
gangs. We will prosecute those who repeatedly violate our
borders. It will be my priority to confront these crimes
vigorously, effectively, and immediately.
Approximately 90 percent of all law enforcement officers
are not Federal, but they are State and local. They are the
ones on the front lines. They are better educated, trained, and
equipped than ever before. They are the ones who we rely on to
keep our neighborhoods and playgrounds and schools safe. But in
the last several years, law enforcement as a whole has been
unfairly maligned and blamed for the unacceptable actions of a
few of their bad actors. They believe the political leadership
in the country has abandoned them. They felt they had become
targets. Morale has suffered. And last year, while under
intense public criticism, the number of police officers killed
in the line of duty increased by 10 percent over 2015; and
firearms deaths of police officers are up 68 percent. So this
is a wake-up call, colleagues. It cannot continue.
If we are to be more effective in dealing with rising
crime, we will have to rely on and work more effectively with
local law enforcement, asking them to lead the way. To do that,
they must know they are supported. And if I am so fortunate as
to be confirmed as Attorney General, they can be assured they
will have my support in their lawful duties.
As I discussed with many of you in our meetings prior to
this hearing, the Federal Government has an important role to
play in this area also. We must use the research and the
expertise and the training that has been developed by the
Department of Justice to help these agencies in developing the
most effective and lawful law enforcement methods to reduce
crime. We must re-establish and strengthen the partnership
between Federal and local officers to enhance a common and
unified effort to reverse the rising crime trends. I did this
as United States Attorney. I worked directly and continuously
with local and State law enforcement officials. If confirmed,
this will be one of my priority objectives.
There are also many things the Department can do to assist
the State and local officers to strengthen relationships with
their own communities where policies like community-based
policing have absolutely been proven to work. I am committed to
this effort and to ensuring that the Department of Justice is a
unifying force for improving relations between the police in
this country and the communities they serve. This is
particularly important in our minority communities. Make no
mistake, positive relations and great communication between the
people and their police are essential for any good police
department. And when police fail in their duties, they must be
held accountable. I have done these things as United States
Attorney. I have worked to advance these kind of policies.
In recent years, our law enforcement officers have been
called upon to protect our country from the rising threat of
terrorism that has reached our shores. If I am confirmed,
protecting the American people from the scourge of radical
Islamic terrorism will continue to be a top priority. We will
work diligently to respond to threats, using all lawful means
to keep my country safe. Partnerships will also be vital to
achieving much more effective enforcement against cyber
threats, and the Department of Justice clearly has a lead role
to play in that essential effort.
We must honestly assess our vulnerabilities and have a
clear plan for defense, as well as offense, when it comes to
cybersecurity. The Department of Justice must never falter in
its obligation to protect the civil rights of every American,
particularly those who are most vulnerable.
A special priority for me in this regard will be aggressive
enforcement of our laws to ensure access to the ballot for
every eligible voter, without hindrance or discrimination, and
to ensure the integrity of the electoral process, which has
been a great heritage of the Department of Justice.
Further, this Government must improve its ability to
protect the United States Treasury from fraud, waste, and
abuse. This is a Federal responsibility. We cannot afford to
lose a single dollar to corruption and you can be sure, if I am
confirmed, I will make it a high priority of the Department of
Justice to root out and prosecute fraud in Federal programs and
to recover moneys lost due to fraud and false claims, as well
as contracting fraud and issues of that kind.
The Justice Department must remain ever faithful to the
Constitution's promise that our Government is one of laws, and
not of men. It will be my unyielding commitment to you, if
confirmed, to see that the laws are enforced faithfully,
effectively, and impartially. The Attorney General must hold
everyone, no matter how powerful, accountable. No one is above
the law, and no American will be beneath its protection. No
powerful special interest will cower this Department.
I want to address personally the fabulous men and women
that work in the Department of Justice. That includes personnel
in Main Justice, here in Washington, but also the much larger
number that faithfully fulfill their responsibilities every day
throughout the Nation. As a United States Attorney, I worked
with them constantly. I know them and the culture of their
agencies. The Federal investigative agencies represent the
finest collection of law officers in the world. I know their
integrity and professionalism and I pledge to them a unity of
effort that is unmatched. Together we can and will reach the
highest standards and the highest results. It would be the
greatest honor for me to lead these fine public servants.
To my colleagues, I appreciate the time that each of you
have taken to meet me one-on-one. As Senators, we do not always
have enough opportunity to sit down and discuss matters face-
to-face. I had some great visits. I understand and respect the
conviction that you bring to your duties. Even though we may
not always be in agreement, you have always been understanding
and respectful of my positions, and I of yours.
In our meetings over the past weeks you have had the
opportunity to share with me, and relating to the Department,
from unprosecuted crimes on Tribal lands, a matter that is
greater than I had understood: to the scourge of human
trafficking and child exploitation, to concerns about cuts in
grant programs, to the protection of American civil liberties,
and the surge of heroin overdose deaths, to just name a few
things.
I learned a lot during those meetings, and particularly in
my meeting with Senator Whitehouse, where we discussed cyber
security. He has a great deal of knowledge there. I am glad,
Senator Whitehouse, that you and Senator Graham have taken a
lead on this important issue, and I think we can work together
and make some progress.
Senator Graham, congratulations on your football victory
last night.
Senator Graham. How about that last one?
Senator Sessions. So I want to assure all of my colleagues
that I have given your concerns earnest reflection and will
bear them in mind as I move forward. I will sincerely endeavor
to keep these lines of communications open and hope that we can
continue our collegiality and friendships.
In that regard, if I am confirmed, I commit to all of you
that the Department of Justice will be responsive, Mr.
Chairman, to Congress, and will work with you on your
priorities, all of you, and provide you with guidance and views
where appropriate. The Department will respect your
constitutional duties, your oversight role, and the critically
important separation of powers between the executive and
legislative branches.
Let me address another issue straight on. I was accused in
1986 of failing to protect the voting rights of African
Americans by presenting the Perry County case, the voter-fraud
case. And of condemning civil rights advocates and
organizations and even harboring, amazingly, sympathies for the
KKK. These are damnably false charges.
The voter-fraud case my office prosecuted was in response
from pleas from African-American incumbent elected officials
who claimed that the absentee ballot process involved a
situation in which ballots cast for them were stolen, altered,
and cast for their opponents. The prosecution sought to protect
the integrity of the ballot, not to block voting. It was a
voting rights case.
As to the KKK, I invited Civil Rights attorneys from
Washington, DC, to help us solve a very difficult investigation
into the unconscionable, horrendous death of a young African-
American man, Michael Donald, coming home from the 7-Eleven
store at night, simply because he was Black. We actively backed
the attorneys throughout the case and they broke that case.
That effort led to a guilty plea and a life sentence in court
for one defendant and his testimony against the other
defendant. There was no Federal death penalty at the time. I
felt the death penalty was appropriate in this case and I
pushed to have it tried in State court, which was done. That
defendant was indeed convicted and sentenced to death and 10
years later, ironically as Alabama's Attorney General, my staff
participated in the defense of that verdict and sentence and a
few months after I became a United States Senator, that
murdering Klansman was indeed executed.
I abhor the Klan and what it represents and its hateful
ideology. I assisted Morris Dees, of the Southern Poverty Law
Center, in his lawsuit that led to the successful collapse of
the Klan, at least in Alabama, and the seizure of their
building at least for that period of time.
As Civil Rights Division attorneys have testified before
the Committee, I supported fully the historic cases that the
Justice Department filed to advance civil rights--including
cases to desegregate schools, abolish at-large elections for
cities, county commissions, and school boards. These at-large
elections were a mechanism used to block African-American
candidates from being able to be elected to boards and
commissions. It was a deliberate part of a systemic plan to
reduce the ability of African Americans to have influence in
the election and governing process.
I never declared the NAACP was un-American or that a Civil
Rights attorney was a disgrace to his race.
There is nothing I am more proud of than my 14 years of
service in the Department of Justice. I love and venerate that
great institution. I hold dear its highest ideals. As God gives
me the ability, I will work every day to be worthy of the
demands of this august office.
You can be absolutely sure that I understand the immense
responsibility I would have. I am not naive. I know the threat
that our rising crime and addiction rates pose to the health
and safety of our country. I know the threat of terrorism. I
deeply understand the history of civil rights in our country,
and the horrendous impact that relentless and systemic
discrimination and the denial of voting rights has had on our
African-American brothers and sisters. I have witnessed it. We
must continue to move forward and never back.
I understand the demands for justice and fairness made by
our LGBT community. I will ensure that the statutes protecting
their civil rights and their safety are fully enforced.
I understand the lifelong scars born by women who are
victims of assault and abuse. And if I am so fortunate as to be
confirmed as your Attorney General, you can know that I
understand the absolute necessity that all my actions must fall
within the bounds of the Constitution and the laws of the
United States.
While all humans must recognize the limits of their
abilities, and I certainly do, I am ready for this job. We will
do it right. Your input will be valued. Local law enforcement
will be our partners. Many friends in Federal Government that I
have had in law enforcement will be respected.
I have always loved the law. It is the very foundation of
this country. It is the exceptional foundation of America. I
have an abiding commitment to pursuing and achieving justice,
and a record of doing that. If confirmed, I will give all my
efforts to this goal. I only ask that you do your duty as God
gives you the ability to see that duty as you are charged by
the Constitution.
Thank you for your courtesies. I look forward to the
hearing. Thank you, Mr. Chairman.
Chairman Grassley. Before I ask questions, I want to thank
you, Senator Sessions, for your service in the Senate but more
importantly, for taking on this responsibility you have been
nominated for and to thank you for your opening statement. I am
glad that you were able to mention the names of a lot of your
family that are with you and there are a lot of other people
that we may not have their names and I would ask the staff to
put in the record the names of all the other people who are
accompanying you today as well, if they are willing to give us
that name. And it is a proud day for you, your wife, son, and
daughters, and their families. I welcome all of you very much.
Now to the questioning. I will take 10 minutes and Senator
Feinstein, we will go back and forth as we usually do.
The Attorney General of the United States is, of course,
the Nation's chief law enforcement officer. He or she is not
the President's lawyer, nor is he the President's wingman as
Attorney General Holder described himself. Rather, he or she
has an independent obligation to the Constitution and to the
American people. Now I know you care deeply about this
foundational principle. So I am going to ask you a question I
have heard you ask other nominees for Attorney General.
Occasionally you will be called upon to offer an opinion to
the President who appointed you. You will have to tell him
``yes'' or ``no.'' And sometimes Presidents do not like to be
told ``no.'' So I would like to know, will you be able to stand
up and say ``no'' to the President of the United States if in
your judgment the law and your duty demands it? And the reason
I ask that is because I know you worked very hard for the
President-elect.
Senator Sessions. Mr. Chairman, I understand the importance
of your question, I understand the responsibility of the
Attorney General and I will do so. You simply have to help the
President do things that he might desire in a lawful way and
have to be able to say ``no'' both for the country, for the
legal system, and for the President to avoid situations that
are not acceptable. I understand that duty, I have observed it
through my years here, and I will fulfill that responsibility.
Chairman Grassley. Just so my colleagues do not think I am
taking advantage of time, somebody did not start the clock.
Well, the light is not working, I am sorry. I can read it now.
So, I heard what you said, but just to emphasize, let me
follow up.
Well if you disagree with the President's chosen course of
action and you told him so and he intends to pursue that course
of action anyway, what are your options at that point?
Senator Sessions. Mr. Chairman, I think an Attorney General
should first work with the President, hopefully that Attorney
General would have the confidence of the President, and avoid a
situation that would be unacceptable. I do believe that if an
Attorney General is asked to do something that is plainly
unlawful, he cannot participate in that. He or she would have
to resign, ultimately, before agreeing to execute a policy that
the Attorney General believes would be unlawful or
unconstitutional.
I would say, Mr. Chairman, that there are areas that are
clear and right, there are areas that may be gray, and there
are areas that are unacceptable. And a good Attorney General
needs to know where those lines are to help the President,
where possible, and to resist improper, unacceptable actions.
Chairman Grassley. You served in this Department for 14 or
15 years, you served as your State's Attorney General, and, of
course, you have served on this Committee for a long time. And
we have oversight over the Department that you might head. And
you have done that all for 20 years.
I have had my share of disagreements with the Department's
leadership over the last few years. Some of those were purely
policy disagreements, but some issues were especially troubling
to me in that the Department failed to perform fundamental
functions to enforce the law.
As Attorney General day in and day out, you will be faced
with difficult and sometimes thorny legal problems. What will
your approach be to ensuring that the Department enforces the
law and, more broadly, what is your vision for the Department?
Senator Sessions. Mr. Chairman, the ultimate responsibility
of the Attorney General in the Department of Justice is to
execute the laws passed by this Congress and to follow the
Constitution in that process and carry its principles out. So
you can be sure I understand that. We may have had
disagreements here about whether a law should be passed, but
once passed I will do my dead level best to ensure it is
properly and fairly enforced.
I do believe that we have a crime problem. I will not
perhaps go into now, unless you want me to, what we can do to
address that. And there are other challenges this country
faces. I would be pleased to recognize the influence of the
legislative branch and to welcome the insights that you might
have.
Chairman Grassley. Since that is a very important issue
with me and I suppose every colleague here, let me emphasize by
saying, is it fair to say then that regardless of what your
position may have been as a legislator, your approach as
Attorney General will be to enforce the law regardless of
policy differences?
Senator Sessions. Absolutely, Mr. Chairman. I do not have
any hesitation or any lack of ability to separate the roles
that I have had. To go from the legislative branch to the
executive branch is a transfer, not only of position, but of
the way you approach issues. I would serve an executive
function, an enforcement function of the laws this great
legislative body might pass.
Chairman Grassley. During the course of the Presidential
campaign, you made a number of statements about the
investigation of former Secretary of State Hillary Clinton
relating to her handling of sensitive emails and regarding
certain actions of the Clinton Foundation. You were not alone
in that criticism. I was certainly critical in the same way as
were millions of Americans on those matters. But now you have
been nominated to serve as Attorney General. In light of those
comments that you made, some have expressed concern about
whether you can approach the Clinton matter impartially in both
fact and appearance. How do you plan to address those concerns?
Senator Sessions. Mr. Chairman, it was a highly contentious
campaign. I, like a lot of people, made comments about the
issues in that campaign. With regard to Secretary Clinton and
some of the comments I made, I do believe that that could place
my objectivity in question. I have given that thought. I
believe the proper thing for me to do would be to recuse myself
from any questions involving those kinds of investigations that
involve Secretary Clinton and that were raised during the
campaign or could be otherwise connected to it.
Chairman Grassley. Okay. Let me emphasize then with a
follow-up question. To be very clear, you intend to recuse
yourself from both the Clinton email investigation and any
matters involving the Clinton Foundation if there are any?
Senator Sessions. Yes.
Chairman Grassley. Let me follow up again because it is
important. When you say you will recuse, you mean that you will
actually recuse and the decision will therefore fall to, I
assume, a Deputy Attorney General?
I ask because after Attorney General Lynch met with
President Clinton in Phoenix, she said she would ``defer'' to
the FBI, but she never officially recused.
Senator Sessions. No, she did not officially recuse. And
there is a procedure for that which I would follow. And I
believe that would be the best approach for the country because
we can never have a political dispute turn into a criminal
dispute. This cannot be handled in any way that would suggest
anything other than absolute objectivity. This country does not
punish its political enemies, but this country ensures that no
one is above the law.
Chairman Grassley. You touched on something that is very
dear to me and that is working with having executive branch
people work with Members of the Congress. And you also
mentioned working with us on oversight. But since that is very
important to me, let me say that the executive branch has
always been one of my top priorities regardless of who occupies
the White House. I have often said I am an equal opportunity
overseer.
Now, over the years, I have asked quite a few executive
nominees, but Republican and Democrat, to make commitments to
respond to oversight. You said you would, but in my experience
nominees are usually pretty receptive to oversight requests
during these type of hearings, but after they have been
confirmed, oversight does not seem to be a high priority for
them.
As I told you when we met privately in my office, sometimes
I think nominees should go ahead and be a little more
straightforward during their hearings. And instead of saying
yes to everything we ask about oversight, it would be more
honest to say ``maybe'' when asked if they would respond to our
questions.
Now, because you have served on this Committee and
understand the importance of oversight, I am hoping you will be
different than your predecessors in response to oversight
questions.
And so I have with me, that I will give to one of your
staff, a whole bunch of letters that have not been answered
yet, one of them even you have signed with me to the Department
of Justice. And I hope that you would go to great lengths to
see that these get answered so that next May or June if I am
contacting you that they have not been answered then, you know,
the Trump administration might be blamed for it and these are
all a result of not getting answers from the last
administration. So I hope you will help me get answers to
these, at least the one you helped me to write.
[Laughter.]
Senator Sessions. Mr. Chairman, you are correct that this
Committee has oversight, but it goes beyond that. This
Committee and the Congress funds the various departments of the
executive branch, and you have every right before you fund our
agencies and departments to get responsive answers to questions
that are proper. Sometimes Congress has asked for answers on
issues that maybe there is legitimate reason to object to. But
they should object and state why.
Mr. Chairman, I will be responsive to your requests and I
understand your history, perhaps more than anyone in this
Congress, to advance the idea that the executive branch needs
to be held accountable. And I salute you for it.
Chairman Grassley. And if Senator Feinstein contacts you,
do not use this excuse, as so many people use, that if you are
not Chairman of a Committee you do not have to answer the
question. I want her questions answered just like you would
answer mine.
Senator Sessions. I understand that.
Chairman Grassley. Senator Feinstein.
Senator Feinstein. Thank you. Thank you.
[Laughter.]
Senator Feinstein. Thank you. That was above and beyond the
call. Thank you, Mr. Chairman.
I would like to begin with the second-largest criminal
industry in this country, which is now, believe it or not, by
revenues produced, human sex trafficking.
And trafficking victims are among the most vulnerable in
our society. The average age is 12 to 14. They are beaten,
raped, abused, at times handcuffed at night so they cannot
escape, and often moved from place to place, forced to have sex
with multiple men each night.
The Justice for Victims of Trafficking Act, signed into law
in 2015, created a Domestic Trafficking Victims' Fund for
victim services, to be administered by the Department of
Justice. Part of that fund contains up to $30 million for
health care or medical items or services to trafficking
victims.
These funds are subject to the Hyde amendment which says no
appropriated funding can be used to pay for abortion. However,
the Hyde amendment does not apply in cases of rape.
On the Senate floor, Senator Cornyn discussed the Hyde
language and said, ``Everyone knows the Hyde amendment language
contains an exception for rape and health of the mother. So
under this act, these limitations on spending would not have
anything to do with the services available to help those
victims of human trafficking.'' In short, Senator Cornyn
asserted that the Hyde amendment, which contains an exception
for rape, would not affect the availability of services for
these victims.
The Domestic Trafficking Victims' Fund will be under the
jurisdiction of the Department of Justice. Here is the
question: Will you ensure that these grant funds are not denied
to service providers who will assist victims of human
trafficking in obtaining comprehensive services they need,
including abortion, if that is what is required for a young
girl impregnated during this horrific abuse?
Senator Sessions. Senator Feinstein, I appreciate that
question. And I do appreciate the fact that our country has
been talking and, I believe, taking action for a number of
years to deal with sex trafficking more effectively. I do not
know that we have reached the level of actual effectiveness we
need to, but Congress and you and others have been very, very
outspoken about this. And there are all kinds of great citizens
groups that have focused on it. It is a very important issue.
I was not aware of how the language for this grant program
has been established. I do appreciate your concerns on it. It
is a matter that I have not thought through. But, ultimately,
it is a matter for this U.S. Congress, not so much a matter for
the Attorney General.
We need to put our money out to assist in this activity
according to the rules established by the Congress.
Senator Feinstein. Well, I am delighted that Senator Cornyn
is here. I quoted him directly from the floor that the Hyde
amendment would not prevent the distribution of these funds.
And so I hope you would agree to that. And that is certainly
most important to me because Congress has spoken and the bill
is law.
Senator Sessions. I understand that. And we would follow
the law.
Senator Feinstein. Okay. As you know, the Constitution also
protects a woman's right to have access to health care and
determine whether to terminate her pregnancy in consultation
with her family and her doctor.
I am old enough to remember what it was like before, when I
was a student at Stanford and thereafter. In the early 1960s, I
actually sentenced women in California, convicted of felony
abortion, to State prison for maximum sentences of up to 10
years, and they still went back to it because the need was so
great--so was the morbidity and so was the mortality.
This right, passed now by the Constitution, as recognized
in Roe, Planned Parenthood v. Casey, and the Supreme Court's
recent decision in Whole Woman's Health v. Hellerstedt--in
fact, the Court recently struck down onerous regulations
imposed by Texas on women's health clinics.
You have referred to Roe v. Wade as ``one of the worst
colossally erroneous Supreme Court decisions of all time.'' Is
that still your view?
Senator Sessions. It is. I believe it violated the
Constitution and really attempted to set policy and not follow
law. It is the law of the land. It has been so established and
settled for quite a long time and it deserves respect. And I
would respect it and follow it.
Senator Feinstein. On November 14th, 2016, appearing on the
TV show, ``60 Minutes,'' the President-elect said that the
issue of same-sex marriage was ``already settled, it's law, it
was settled in the Supreme Court, it's done and I am fine with
that.''
Do you agree that the issue of same-sex marriage is settled
law?
Senator Sessions. The Supreme Court has ruled on that. The
dissenters dissented vigorously, but it was 5-4 and five
justices on the Supreme Court, a majority of the court, has
established the definition of marriage for the entire United
States of America and I will follow that decision.
Senator Feinstein. Here is another question: If you believe
same-sex marriage is settled law, but a woman's right to choose
is not, what is the difference?
Senator Sessions. Well, I have not said that the woman's
right to choose or that Roe v. Wade and its progeny is not the
law of the land or not clear today, so I would follow that law.
Senator Feinstein. Thank you. I would like to ask one
question based on the letter that we received from 1,400 law
professors. They are from 49 States, only Alaska is left out. I
inquired why and they said because Alaska does not have a law
school. So it is a pretty comprehensive list representing law
professors in every State that has a law school.
What they said, and this is what I want you to respond to,
is, ``Nothing in Senator Sessions' public life since 1986 has
convinced us that he is a different man than the 39-year-old
attorney who was deemed too racially insensitive to be a
Federal district court judge. . . . All of us believe it is
unacceptable for someone with Senator Sessions' record to lead
the Department of Justice.''
So I want your response to this and answer to the question,
how do you intend to put behind you what are strongly felt
personal views, take off the political hat, and be an Attorney
General who fairly enforces the law and the Constitution for
all?
Senator Sessions. Well, Senator Feinstein, I would direct
their attention to, first, to the remarks of Senator Specter
who, in his entire career, said he made one vote that he would
regret and that was the vote against me. He indicated he
thought that I was an egalitarian, a person who treated people
equally and respected people equally.
This caricature of me in 1986 was not correct. I have
become a United States Attorney. I supported, as the Civil
Rights attorney said, major civil rights cases in my district
that integrated schools, that prosecuted the Klan, that ended
single-member districts that denied African Americans the right
to hold office. I did everything I was required to do.
And the complaints about the voter fraud case and the
complaints about the Klan case that I vigorously prosecuted and
supported are false. And I do hope this hearing today will show
that I conducted myself honorably and properly at that time and
that I am the same person, perhaps wiser and maybe a little
better, I hope so, today than I was then. But I did not harbor
the kind of animosities and race-based discrimination ideals
that I was accused of. I did not.
Senator Feinstein. Thank you.
Thank you, Mr. Chairman.
Chairman Grassley. Okay. Senator Hatch and then Senator
Leahy.
Senator Hatch. Well, thank you, Mr. Chairman.
Chairman Grassley. Before your time starts, I would like to
mention that the Committee received a letter in support of
Senator Sessions' nomination from Attorneys General Ashcroft,
Barr, Gonzales, Meese, and Mukasey, as well as a number of
former Deputy Attorneys General.
They wrote, in part, as follows, a sentence from that
letter, ``Based on our collective and extensive experience, we
also know him to be a person of unwavering dedication to the
mission of the department to assure that our country is
governed by a fair and evenhanded rule of law.''
I ask consent to put that letter in the record.
[The letter appears as a submission for the record.]
Chairman Grassley. Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman. I first want
to thank you for your fair approach to this, our first hearing
of the 115th Congress. You have scheduled and you have
structured this hearing in line with this Committee's
precedence. In fact, you are including more witnesses in this
hearing than the past average for Attorney General nominees.
Senator Sessions has provided this Committee with more than
150,000 pages of material relevant to his nomination. That is
100 times what Attorney General Lynch produced and almost 30
times what Attorney General Holder provided.
This material comes from someone we know, someone many of
us have served with in the Senate and on this very Committee,
yet some on the far left will stop at nothing to defeat this
nomination.
They oppose this nomination precisely because Senator
Sessions will not politicize the Justice Department or use its
resources to further a political agenda. They make up one thing
after another to create a caricature that bears no resemblance
to the nominee, who is actually before us here today.
Now, I have been on this Committee for a long time and I
have seen these dirty tactics used before. And they are not
going to work this time.
Senator Sessions, it sounds a little strange to say this,
but welcome to the Senate.
[Laughter.]
Senator Sessions. Thank you.
Senator Hatch. The Senate Judiciary Committee. I am sure
there will be some need to address false claims and fabricated
charges during this hearing. Believe it or not, however, I
actually have some questions about issues and policies that you
will be addressing when you become Attorney General.
The first is one I have raised with every incoming Attorney
General nominee for nearly 25 years and it concerns enforcement
of Federal laws prohibiting obscenity.
In the 108th Congress, you introduced Senate Concurrent
Resolution 77, expressing the sense of the Congress that
Federal obscenity laws should be vigorously enforced throughout
the United States. It pleased the Senate, or excuse me, it
passed the Senate unanimously; it pleased it, too. In fact, it
is the only resolution on this subject ever passed by either
the Senate or the House.
Now, Senator Sessions, with your permission, I want to
share with you that resolution adopted last year by the Utah
legislature outlining why pornography should be viewed as a
public health problem, as well as some of the latest research
into the harms of obscenity.
Is it still your view that Federal laws prohibiting adult
obscenity should be vigorously enhanced?
Senator Sessions. Mr. Chairman, those laws are clear and
they are being prosecuted today and should continue to be
effectively and vigorously prosecuted in the cases that are
appropriate.
Senator Hatch. In making this a priority for the Justice
Department, would you consider re-establishing a specific unit
dedicated to prosecuting this category of crime?
Senator Sessions. So that unit has been disbanded? I am not
sure I knew that, but it was a part of the Department of
Justice for a long time, and I would consider that.
Senator Hatch. Okay. For several years now, Senator Chris
Coons and Representatives Tom Marino and Suzan DelBene, and I,
have raised the importance of safeguarding data privacy on an
international scale from unauthorized Government access. So
that is why we continue to push forward the International
Communications Privacy Act, which establishes a legal standard
for accessing extraterritorial communications.
The need for a legislative solution was reinforced in July
when the U.S. Court of Appeals for the 2nd Circuit held in
Microsoft v. United States that current law does not authorize
U.S. law enforcement officials to access electronic
communications stored outside the United States.
If confirmed, will you and your staff work with us to
strike the needed balance to strengthen privacy and promote
trust in the United States technologies worldwide while
enabling law enforcement to fulfill its important public safety
mission?
Senator Sessions. That would be a high responsibility,
Senator. I know you have worked hard on that for a number of
years, as have others, Members of this Committee, Senator
Coons, and others. So working that out, understanding the new
technology, but the great principles of the right to privacy,
the ability of individuals to protect data that they believe is
private and should be protected, all of those are great issues
in this new technological world we are in. And I would be
pleased to work with you on that. And I do not have firm and
fast opinions on the subject.
Senator Hatch. Well, thank you so much. And I would like to
turn now to rapid DNA technology that will allow law
enforcement officials to speedily process DNA samples in 90
minutes or less. FBI Director Comey told this Committee that
rapid DNA would help law enforcement ``change the world in a
very, very exciting way.'' Legislation authorizing law
enforcement to use this technology, which you cosponsored,
passed the Senate last year. I was disappointed, however, that
it got tied up with criminal justice reform efforts in the
House.
And I have two questions. First, do you agree with FBI
Director Comey and with law enforcement leaders across the
country that rapid DNA legislation is important and will help
law enforcement to do their jobs better and faster?
And second, do you agree with me that we should work to
pass this legislation sooner rather than later and should avoid
tying it to efforts on other legislative issues whose path
forward is unclear?
Senator Sessions. Mr. Chairman, rapid DNA analysis is a
hugely important issue for the whole American criminal justice
system. It presents tremendous opportunities to solve crimes in
an effective way and can produce justice because it is the kind
of thing that you cannot fake or mislead. So I am very strongly
in favor of that.
In my personal view, after many years in the law
enforcement community, is that one of the biggest bottlenecks,
colleagues, of all of our laws involving prosecutions of
criminal activity is the bottleneck of the scientific analysis,
is the forensic sciences, where we fail sometimes to get DNA
back, fail to get back fingerprint analysis, fail to get back
drug analysis, chemical analysis. And all of this slows down
and stops cases that should long since have been brought
forward and disposed of.
Senator Hatch. Okay. Now, I have read that some Democratic
Senators accuse you of opposing the Violence Against Women Act.
That caught my attention because, like I did, you actually
voted to reauthorize it.
As I recall, in 2013 there were not one, but two bills to
reauthorize VAWA, the Violence Against Women Act. One had
controversial provisions that had never been received in a
hearing, the other did not.
Am I right that you supported reauthorizing the Violence
Against Women Act?
Senator Sessions. Absolutely. I supported it in 2000 when
it passed. I supported it in 2005 when both of those bills I
supported became law. And then in this cycle, Senator Grassley
had a bill that I thought was preferable. And I supported his
bill that actually had tougher penalties than the other bill.
And it is kind of frustrating to be accused of opposing
VAWA, the Violence Against Women Act, when I have voted for it
in the past. There was some specific add-on revision in the
bill that caused my concern and I think other people's concern.
Senator Hatch. And Mr. Chairman, I ask consent to place in
the record an op-ed published in USA Today on this subject by
Penny Nance, president of Concerned Women for America, the
Nation's largest public policy and women's organization, if you
can.
Chairman Grassley. Without objection, it will be included.
[The op-ed article appears as a submission for the record.]
Senator Hatch. Now, I have a question about the Justice
Department's Civil Rights Division. The division enforces the
Religious Land Use and Institutionalized Persons Act which
protects the right of prison inmates to worship, and protects
churches and religious institutions from burdensome zoning and
other restrictions.
So I introduced this legislation in 2000. It passed without
objection in both the Senate and the House. I would note for
the record that next Monday, January 16th, is Religious Freedom
Day. I hope that you will make the religious freedom of all
Americans a priority under your leadership.
The Civil Rights Division also has a unit dedicated to
combating human trafficking. It was created in 2007, and one of
my former Judiciary Committee counsels, Grace Chung Becker, was
its first head.
Perhaps you could comment on the significance of issues
such as religious freedom and human trafficking and why it is
important to include them within the civil rights agenda of the
Department.
Senator Sessions. Mr. Chairman, religious freedom is our
great heritage in America. We respect people's religion. We
encourage them to express themselves and to develop their
relationships with the higher power, as they choose. We respect
that. It is mandated in the Constitution.
But there are situations in which I believe we can reach
accommodations that would allow the religious beliefs of
persons to be honored in some fashion as opposed to just
dictating everything under a single provision or policy.
So I believe you are correct. We should recognize religious
freedom. It would be a very high priority of mine.
Senator Hatch. Well, that means a lot to me.
Now, Mr. Chairman, let me close by asking consent to place
in the record letters from the National Center for Missing and
Exploited Children and the Boys and Girls Clubs of America.
They attest to Senator Sessions' work on behalf of the
vulnerable children and young people.
And I also ask consent to place in the record a letter
supporting this nomination from nearly two dozen men and women
who have served as Assistant Attorneys General in 10 different
offices and divisions that says that, as both U.S. Senator and
U.S. Attorney, ``Senator Sessions has demonstrated a commitment
to the rule of law and to the evenhanded administration of
justice.'' I cannot agree more.
Senator Sessions. Thank you.
Chairman Grassley. Without objection, those will be
included.
[The letters appear as submissions for the record.]
Senator Hatch. Thank you.
Chairman Grassley. Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
And welcome, Senator Sessions and Mrs. Sessions.
Senator Sessions. Thank you.
Senator Leahy. Let me just follow up. You were just asked
about the Violence Against Women Act and your support. Let us
deal with the facts. Let us deal with what was actually voted
on. Let us deal with the Violence Against Women Act that you
voted against.
You strongly opposed the Violence Against Women
Reauthorization Act of 2013, spoke against it; you voted
against it. That law expanded protections for some of the most
vulnerable groups of domestic violence and sexual assault
survivors--students, immigrants, LGBTQ victims, and those on
Tribal lands.
Now, the Justice Department, by all accounts, has done an
excellent job implementing and enforcing it over the last three
years.
I believe--we are both prosecutors. I went to a lot of
domestic violence scenes, crime scenes, as a young prosecutor.
I believe that all victims of domestic and sexual violence
deserve protection.
Why did you vote against expanding protections for LGBT
victims, students, immigrants and Tribal victims of domestic
violence and sexual assault? Why did you vote ``no''?
Senator Sessions. Mr. Chairman, I did indeed support the
bill in 2000 and in----
Senator Leahy. I am talking about the bill that is the law
today.
Senator Sessions. I understand what you are saying.
Senator Leahy. The law today, that was passed in 2013 by an
overwhelming margin in the Senate and by an overwhelming margin
in the Republican-controlled House, signed into law by
President Obama. I am asking about that. Why did you oppose it?
Senator Sessions. Mr. Chairman, a number of people opposed
some of the provisions in that bill, not the entire bill.
Senator Leahy. I am just asking about you.
Senator Sessions. I am trying to answer.
Senator Leahy. Go ahead.
Senator Sessions. So when we voted in the Committee, eight
of the nine Republicans voted against the bill. One of the more
concerning provisions was one that gave Tribal courts
jurisdiction to try persons who were not Tribal members--I
believe, the only time that has ever happened. That was the big
concern that I raised, I believe, primarily, on the
legislation.
So I voted with the Chairman and the legislation he had,
that I thought did the job for protecting women, to reauthorize
the Violence Against Women Act but at the same time did not
have other things attached to it that I thought were
concerning.
Senator Leahy. Well, on the Tribal courts, those have now
been prosecuted very carefully. Defendants receive due process
rights; they have to. None of the non-Indian defendants that
have been prosecuted have appealed to Federal courts.
Many feel it has made victims on Tribal lands safer. Do you
agree with that? Do you agree with the way the Justice
Department has handled such cases?
Senator Sessions. Mr. Chairman, I do believe that the law
has been passed by Congress. I am interested to see how it
plays out in the real world, and I will do my best to make my
judgment about how to enforce that as Attorney General.
Senator Leahy. Well, we----
Senator Sessions. Certainly, the law itself has many
powerful provisions that I am glad were passed and that are in
law, and that provide protections to women victims of violence.
Senator Leahy. On the Tribal lands, it has been used and
prosecuted for 3 years. Do you feel it has been handled
correctly?
Senator Sessions. Mr. Chairman, I have no understanding of
that, but I am interested in the results of it so far. First
time I have heard it commented on.
Let me say this to you directly. In meeting with Senators
prior to this hearing, quite a number of you raised this issue
and I learned a lot about it. I learned a lot about the fact
that non-Indians have been going onto Tribal lands and
committing crimes, including rape, yet have not been
effectively prosecuted.
Now, under current law and historically, they would be
prosecuted in the Federal Government by the United States
Attorneys, and that has not been happening sufficiently, I am
now convinced. So I do think the FBI, particularly maybe the
Bureau of Indian Affairs investigators, should be beefed up,
and the U.S. Attorneys need to do probably a better job of
prosecuting cases that need to be prosecuted in Federal court.
Senator Leahy. Those were facts that came out pretty
clearly in the hearings before you voted against that
provision. That is why Senator Crapo and I and others included
it in the bill.
There have not been any tests of that. Nobody has appealed
this; nobody has objected to it. If somebody does, would you be
able to defend it in court?
Senator Sessions. I would defend the statute, if it is
reasonably defensible, yes. It is passed by Congress; it would
be the duty of the Attorney General, whether they voted for it
or support it, to defend it.
Senator Leahy. Now----
Senator Sessions. Did I call you ``Mr. Chairman'' a while
ago? I think I did. You have been my Chairman many years now.
Senator Leahy. Well, that is okay. It has been 20 years
back and forth, and I am delighted to turn it over to Senator
Feinstein and Senator Grassley.
Senator Sessions. Well, you will be handling all the money
of the United States, I understand, in your new position.
[Laughter.]
Senator Leahy. In 2009, I offered the Matthew Shepard and
James Byrd, Jr. Hate Crimes Prevention Act as an amendment to
the Defense bill. It extended hate crimes protections to LGBT
individuals, women, and individuals with disabilities. It
passed the Senate overwhelmingly. You opposed it. You stated at
a hearing that you are not sure women or people of different
sexual orientations face that kind of discrimination. And then
you said, ``I just do not see it.''
Do you still believe that women and LGBT individuals do not
face the kind of discrimination that the hate crimes
legislation was passed to prevent?
Senator Sessions. Senator Leahy, having discussed that
issue at some length, that does not sound like something I said
or intended to say. What I did intend----
Senator Leahy. Well, you did say it.
Senator Sessions. Well, I understand, but I have seen
things taken out of context and not give an accurate picture.
My concern is and was that it appeared these cases were being
prosecuted effectively in State courts, where they would
normally be expected to be prosecuted.
I asked Attorney General Holder to list cases that he had
that indicated they were not being properly prosecuted. I noted
that Mr. Byrd's assailant was given the death penalty in Texas
for his offense, and Mr. Shepard's had two life sentences
imposed as a result of the situation in his State.
So the question simply was, do we have a problem that
requires an expansion of Federal law into an area that the
Federal Government has not been historically involved? Senator
Hatch had a proposal that we do a study to see the extent of
the problem, and that we should have evidence that indicates a
shortage of prosecutions and a lack of willingness to prosecute
before adding this law.
Senator Leahy. As far as the study, last year the FBI said
that LGBT individuals were more likely to be targeted for hate
crimes than any other minority group in the country. I mean, we
can study this forever, but that is a pretty strong fact.
Senator Sessions. Well, I will tell you, Senator----
Senator Leahy. And in 2010, you stated that expanding hate
crime protections to LGBT individuals was unwarranted, possibly
unconstitutional. You said the bill has been said to cheapen
the civil rights movement.
Especially considering what the FBI has found, do you still
feel that way?
Senator Sessions. Mr. Chairman, the law has been passed.
The Congress has spoken. You can be sure I will enforce it.
Senator Leahy. Thank you.
I do not want to go as much over time as Senator Hatch did,
but I will ask you one question.
The President-elect has repeatedly asserted his intention
to institute a ban on Muslim immigrants to the United States.
In December 2015, you voted against a resolution that I
offered in this Committee that expressed the sense of the
Senate that the United States must not bar individuals from
entering into the United States based on their religion. All
Democrats and most Republicans, including the Chairman, were in
support of my resolution. Do you agree with the President-elect
that the United States can or should deny entry to members of a
particular religion? Based on their religion? We do background
checks for terrorism, but based on their religion, do you agree
with the President-elect that the United States can or should
deny entry to all members of a particular religion?
Senator Sessions. Senator Leahy, I believe the President-
elect has, subsequent to that statement, made clear that he
believes the focus should be on individuals coming from
countries that have a history of terrorism, and he has also
indicated that his policy and what he suggests is strong
vetting of people from those countries before they are admitted
to the United States.
Senator Leahy. Then why did you vote against the
resolution?
Senator Sessions. Mr.--I almost called you Mr. Chairman
again. Senator Leahy, my view and concern was that the
resolution was suggesting that you could not seriously consider
a person's religious views. Sometimes, though not in the
majority of cases, people do have religious views that are
inimical to the public safety of the United States.
I did not want to have a resolution that suggested that
that could not be a factor in the vetting process before
someone is admitted. But I have no belief and do not support
the idea that Muslims as a religious group should be denied
admission to the United States. We have great Muslim citizens
who have contributed in so many different ways in America--as I
said in my remarks at the occasion that we discussed it in
Committee. I am a great believer in religious freedom and the
right of people to exercise their religious beliefs.
Chairman Grassley. Before I turn to----
Senator Leahy. May I ask consent to put some items in the
record?
Chairman Grassley. Yes. So without objection, your inserts
will be included.
[The information referred to appears as submissions for the
record.]
Chairman Grassley. I have a letter from Solicitor General
Ted Olson in support of Senator Sessions, quoting in part, with
respect to civil rights, he says, ``As a lawyer who has devoted
years of effort to litigating and vindicating the civil rights
of our fellow gay, lesbian, and transgender citizens, I
recognize that people of good faith can disagree on legal
issues. Such honest disagreement should not disqualify them
from holding public office. In particular, I have no
reservations about Senator Sessions' ability to handle these
issues fairly, in accordance with law and to protect the civil
rights of these and all of our citizens.''
I would like to include that in the record, without
objection.
[The letter appears as a submission for the record.]
Chairman Grassley. Senator Graham.
Senator Graham. Thank you, Mr. Chairman. We are about to
get an answer to the age-old question: Can you be confirmed
Attorney General of the United States over the objection of
1,400 law professors?
[Laughter.]
Senator Graham. I do not know what the betting line in
Vegas is, but I like your chances.
Speaking of football----
[Laughter.]
Senator Graham [continuing]. I want to congratulate the
University of Alabama for one heck of a streak. One of the most
dominant football teams in the history of college football. And
I want to acknowledge the Clemson Tigers, where I live five
miles from the stadium, that that was the finest college
football game I think I have ever seen.
Dabo Swinney and the Tigers represent everything good about
college athletics. And while we were on different teams early
this morning, I want to let the good people of Alabama know
that in terms of their Senator, Jeff Sessions, he is a fine
man, an outstanding fellow who I often disagree with, I have
traveled the world with. I have gotten to know him and his
family, and I will enthusiastically support you for the next
Attorney General of the United States.
Now, let us talk about issues. Some people believe that the
only way you can get justice in this world is for the Federal
Government to administer it. Have you heard such thoughts?
Senator Sessions. Well, I have.
Senator Graham. Yes.
Senator Sessions. I think I know what you are talking
about.
Senator Graham. Yes, I think I do too. I think the whole
point is, for the Federal Government to take over an area of
the law, there should be a good reason. Do you agree with that?
Senator Sessions. Yes.
Senator Graham. If a State is not prosecuting crimes
against people based on their sex, their race, whatever reason,
then it is proper for the Federal Government to come in and
provide justice. Do you agree with that?
Senator Sessions. I do.
Senator Graham. When the State is doing its job, the
Federal Government should let the States do their job.
Senator Sessions. That is correct. That is the general
principle and there is not a general Federal crime, Federal
statute, that federalizes all crime in America. There has never
been one.
Senator Graham. Because people are listening. That is just
the way we think. You may not agree with that, but we think
that way. And I think we have really got a good reason to think
that way. I think that is the way they set up the whole system.
Muslims. As you know, me and the President-elect have had
our differences about religious tests. Would you support a law
that says you cannot come to America because you are a Muslim?
Senator Sessions. No.
Senator Graham. Would you support a law that says that if
you are a Muslim, and you say you are a Muslim, and when we ask
you what does that mean to you, well, that means I have got to
kill everybody that is different from me, it is okay to say
they cannot come?
Senator Sessions. I think that would be a prudent decision.
Senator Graham. I hope we can keep people out of the
country who want to kill everybody because of their religion. I
hope we are smart enough to know that is not what most people
in the Muslim faith believe. So----
Senator Sessions. It can be the religion of that person.
Senator Graham. That is right. That is the point we are
trying to make here.
About the Wire Act, what is your view of the Obama
administration's interpretation of the Wire Act to allow online
video poker, or poker gambling?
Senator Sessions. Senator Graham, I was shocked at the
enforcement memorandum that the Department of Justice issued
with regard to the Wire Act, and I criticized it. Apparently,
there is some justification or argument that can be made to
support the Department of Justice's position, but I did oppose
it when it happened and it seemed to me to be an unusual----
Senator Graham. Would you revisit it?
Senator Sessions. I would revisit it and I would make a
decision about it based on careful study. At this time, I have
not reviewed it so far as to give you an opinion today.
Senator Graham. Immigration. You have said that the
Executive order of President Obama you believe is
unconstitutional, the DACA law. Do you still have that
position?
Senator Sessions. I did, for a number of reasons.
Senator Graham. But I am not--I mean, I agree with you.
Senator Sessions. Right.
Senator Graham. Now we have got 800,000 people have come
out of the shadows, that have been signed up. Will you advise
the next President, President Trump, to repeal that Executive
order?
Senator Sessions. That will be a decision that needs to be
studied and that he would need to agree to. But it is an
Executive order--really, a memorandum of the Department of
Homeland Security.
It would certainly be constitutional, I believe, to end
that order, and our Department of Justice, I think, could have
no objection to a decision to abandon that order. Because it is
very questionable, in my opinion, constitutionally.
Senator Graham. Once we repeal it--and I agree that I
believe it is an overreach--what do we do with the 800,000 kids
who have come out of the shadows?
Senator Sessions. Senator Graham, fundamentally we need to
fix this immigration system. Colleagues, it has not been
working right. We have more and more millions of people
entering illegally into the country. Each one of them produces
some sort of humanitarian concern, but it is particularly true
for children.
So we have been placed in a bad situation. I really would
urge us all to work together. I would try to be supportive to
end the illegality and put us in a position where we can
wrestle with how to handle these difficult, compassionate
decisions.
Senator Graham. Right. And the best way to do it is for
Congress and the administration to work together and pass a
law, not an Executive order.
Senator Sessions. Exactly.
Senator Graham. Okay. When it comes to the law of war, do
you believe that people who join al-Qaeda or affiliated groups
are subject to being captured or killed under the law of war?
Senator Sessions. I do, Senator. I just do not see how we
could see it otherwise. And it is the responsibility of the
military to protect the United States from people who attack
us.
Senator Graham. Do you believe the threats to the homeland
are growing or lessening?
Senator Sessions. I believe they are growing and we are
seeing that now in Europe and we are also seeing it right here
in America.
Senator Graham. Do you support the continuation of Gitmo as
a confinement facility for foreign terrorists?
Senator Sessions. Senator Graham, I think it is designed
for that purpose. It fits that purpose marvelously well. It is
a safe place to keep prisoners. We have invested a lot of money
in that, and I believe it should be utilized in that fashion so
I have opposed the closing of it.
But as Attorney General----
[Protestors interrupting.]
Senator Graham. I just wanted to see if they were still
listening. I think they are on the fence about Gitmo, but I am
not sure.
[Laughter.]
Senator Graham. Let me tell you. I support this
administration's effort to make sure we prosecute terrorism as
a military action, not a law enforcement action. They are not
trying to steal our cars or rob your bank account. They are
trying to destroy our way of life, and I hope you will go after
them without apology, apply the law. And the law is the law of
war, not domestic criminal law. And you will have a friend in
Senator Graham if you intend to do that.
Cyber attacks. Do you think the Russians were behind
hacking into our election?
Senator Sessions. I have done no research into that. I know
just what the media says about it.
Senator Graham. Do you think you could get briefed anytime
soon?
Senator Sessions. Well, I will need to.
Senator Graham. Well, I think you do, too.
You like the FBI?
Senator Sessions. Do I like them?
Senator Graham. Yes.
Senator Sessions. Some of my best friends are FBI.
Senator Graham. Do you generally trust them?
Senator Sessions. Yes.
Senator Graham. Are you aware of the fact that the FBI has
concluded that it was the Russian intelligence services who
hacked into the DNC and Podesta's emails?
Senator Sessions. I do understand that.
Senator Graham. From your point of----
Senator Sessions. At least that is what has been reported,
and I have not been briefed by them on the subject.
Senator Graham. Right. From your point of view, there is no
reason for us to be suspicious of them?
Senator Sessions. Of their decision?
Senator Graham. Yes.
Senator Sessions. I am sure it was honorably reached.
Senator Graham. How do you feel about a foreign entity
trying to interfere in our election? I am not saying they
changed the outcome, but it is pretty clear to me they did. How
do you feel about it and what should we do?
Senator Sessions. Senator Graham, I think it is a
significant event. We had penetration, apparently, throughout
our Government by foreign entities. We know the Chinese have
revealed background information on millions of people in the
United States, and I suppose this is ultimately part of
international big-power politics.
But when a nation uses their improperly gained or
intelligence-gained information to take policy positions that
impact another nation's democracy or their approach to any
issue, then that raises real serious matters.
It really, I suppose, goes in many ways to the State
Department, the Defense Department, and how we as a Nation have
to react to that, which would include developing some protocols
where when people breach our systems, that a price is paid even
if we cannot prove the exact person who did it.
Senator Graham. I agree. I have got 20 seconds left.
I have known you for, I guess, 15 years now, and we have
had a lot of contests on the floor and sometimes we agree,
sometimes we do not.
I am from South Carolina, so I know what it is like
sometimes to be accused of being a conservative from the South.
That means something other than you are a conservative from the
South, in your case. People have fairly promptly tried to label
you as a racist or a bigot or whatever you want to say.
How does that make you feel? And this is your chance to say
something to those people.
Senator Sessions. Well, that does not feel good.
[Protestor interruption.]
Senator Graham. If nothing else, I am clearing the room for
you.
[Laughter.]
Senator Graham. And I would suggest that the freedom of
speech also has some courtesy to listen.
So what is your answer?
Senator Sessions. Senator Graham, I appreciate the
question. When you have a Southern name, you come from South
Alabama, that sounds worse to some people. South Alabama. And
when I came up as a United States Attorney, I had no real
support group. I did not prepare myself well in 1986, and there
was an organized effort to caricature me as something that was
not true. It was very painful. I did not know how to respond
and did not respond very well.
I hope my tenure in this body has shown you that the
caricature that was created of me was not accurate. It was not
accurate then and it is not accurate now. And I just want you
to know that as a Southerner who actually saw discrimination
and have no doubt it existed in a systematic and powerful and
negative way to the people, great millions of people in the
South, particularly, of our country, I know that was wrong. And
I know we need to do better.
We can never go back. I am totally committed to maintaining
the freedom and equality that this country has to provide to
every citizen, and I assure you that that is how I will
approach it.
Chairman Grassley. Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman.
Senator Sessions, let me first say it is--I am glad that
you brought your family with you today. It is a beautiful
family, with your wife and your son and daughters and those
four beautiful little granddaughters. You have kept as quiet as
you could for as long as you could, so thank you so much for
being here today. I am sure it was great moral support and part
of your effort here today.
When you came by my office last week, I talked to you about
a man named Alton Mills. And with the permission of the chair,
I would like to--he is my guest today--ask Mr. Mills if he
would please stand up. Alton, thank you for being here today.
I would like to tell you a story so you can understand my
question a little better.
When Alton Mills was 22 years old, unemployed, he made a
bad decision. He started selling crack cocaine on the streets
of Chicago. He was arrested twice for possession of small
amounts of crack cocaine.
The third time that he was arrested, the kingpins who had
employed him turned on him and, as a consequence, he ended up
being prosecuted under the three-strikes-and-you're-out law. At
the age of 24, he was sentenced to life without parole.
He had never been in prison before and, as I mentioned,
there were no allegations made against him other than
possession and sale. No violence, no guns, nothing of that
nature.
Alton Mills ended up--despite the sentencing judge's
admonition that he believed this was fundamentally unfair and
his hands were tied, Alton Mills ended up spending 22 years in
Federal prison, until December 2015 when President Obama
commuted his sentence. He was finally able to go home to his
family.
Senator Sessions, 7 years ago you and I co-sponsored a bill
known as the Fair Sentencing Act, which Senator Collins
referenced earlier, and that reduced the brutal sentencing
disparity for crack cocaine crimes over powder cocaine.
It was originally 100-to-1. We agreed--in the Senate gym, I
might add--to bring that down to 18-to-1. Inmates,
overwhelmingly African-American, were spared thousands of
prison years because of our joint effort in this injustice.
Yet when I asked you to join me in appealing to the
Sentencing Commission to follow our law, and when I asked you
to join Senator Grassley and me in permitting the almost 5,000
still serving under this unfair 100-to-1 standard to petition
individually for leniency, you refused.
And you said of President Obama's pardoning of people like
Alton Mills, ``President Obama continues to abuse Executive
power in an unprecedented, reckless manner to systematically
release high-level drug traffickers and firearms felons.''
``So-called low-level, non-violent offenders simply do not
exist in the Federal system,'' you said.
Senator Sessions, Alton Mills and many more just like him
do exist. So if you refuse to even acknowledge the fundamental
injustice of many of our sentencing laws, why should you be
entrusted with the most important criminal prosecution office
in America?
Senator Sessions. Senator Durbin, I think that is rather
unfair, based on our relationship and how we work together. In
2001, I introduced legislation very similar to the bill that
you and I successfully made law. It would have reduced it to
20-to-1. Our bill went to 18-to-1, a little better, but
fundamentally that.
I was criticized by the Bush Department of Justice. My
legislation was opposed by them. It was 7 years later or so or
longer before our bill ever passed. So I stepped out against my
own Republican administration and said openly on the floor of
the Senate that I believed these crack cocaine laws were too
harsh and particularly it was disadvantageous to the African-
American community, where most of the punishments were falling.
And it was not fair and we ought to fix it.
I just want to say I took a strong stand on that. You and I
did not agree on the retroactivity because a lot of these were
plea-bargain cases and may not have been totally driven by the
mandatory minimums. So I thought the Court had basically now
agreed that it is retroactive. I do not know what group is not
being covered by it, but a large group was covered by a Court
decision. We sort of left it open, as I remember it.
Senator Durbin. We did.
Senator Sessions. You and I discussed it.
Senator Durbin. Let me say on the issue of fairness, I will
acknowledge you stepped out on this issue. And you and I both
recognized the brutal injustice of a 100-to-1, and we agreed on
18-to-1. That is how laws are made. And now we have 5,000
prisoners sitting in Federal prison, still there under this
brutal, unjust 100-to-1. And all I have asked and all Senator
Grassley has asked, allow them as individuals to petition to
the judge, to the prosecutor, to the Department of Justice so
that their sentences could be considered. That is something you
have opposed.
So in fairness, tell me why you still oppose that.
Senator Sessions. Well, first, I will tell you with
absolute certainty that it is a decision of this body. It is
not the Attorney General's decision about when and where a
mandatory minimum is imposed and whether it can be
retroactively altered.
I will follow any law that you pass, number one. Number
two, I understood the sincere belief you had on that issue, and
it was a difficult call, and that is why we really never worked
it out.
So I understand what you are saying, but I did believe that
you are upsetting finality in the justice system, that you are
suggesting that these kind of factors were not considered when
the plea bargaining went down. So it is an honorable debate to
have, and I respect your position on it.
Senator Durbin. Senator, you have been outspoken on another
issue, and I would like to address it, if I could. I have
invited here today Sergeant Oscar Vazquez, if he would be kind
enough to stand up and be recognized. Sergeant, thank you for
being here.
I will tell you his incredible story in a short form.
Brought to the United States as a child, in high school he and
three other DREAMers started a Robotics Club and won a college-
level robotics competition. They made a movie out of this
story. He graduated from Arizona State University with an
engineering degree. The Obama administration granted him a
waiver and allowed him to become a citizen and enlist in the
United States Army, where he served in combat in Afghanistan.
Senator Sessions, since joining the Senate in 1997, you
have voted against every immigration bill that included a path
to citizenship for the undocumented. You described the DREAM
Act, which I introduced 15 years ago to spare children who are
undocumented through no fault of their own, as ``a reckless
proposal for mass amnesty.'' You opposed the bipartisan
comprehensive immigration reform bill which passed the Senate 4
years ago. You have objected to immigrants' volunteering to
serve in our armed forces, saying, ``In terms of who is going
most likely to be a spy: somebody from Cullman, Alabama, or
somebody from Kenya?''
When I asked what you would do to address the almost
800,000 DREAMers, like Oscar Vazquez, who would be subject to
deportation if President Obama's Executive order was repealed,
you said, ``I believe in following the law. There is too much
focus on people who are here illegally and not enough on the
law.''
Senator Sessions, there is not a spot of evidence in your
public career to suggest that as Attorney General you would use
the authority of that office to resolve the challenges of our
broken immigration system in a fair and humane manner. Tell me
I am wrong.
Senator Sessions. Well, you are wrong, Senator Durbin. I am
going to follow the laws passed by Congress. As a matter of
policy, we disagreed on some of those issues. I do believe that
if you continually go through a cycle of amnesty that you
undermine the respect for the law and encourage more illegal
immigration into America. I believe the American people spoke
clearly in this election. I believe they agreed with my basic
view. And I think it is a good view, a decent view, a solid
legal view for the United States of America that we create a
lawful system of immigration that allows people to apply to
this country, and if they are accepted, they get in; if they
are not accepted, they do not get in. And I believe that is
right and just, and the American people are right to ask for
it. We have not delivered that for them.
Senator Durbin. Senator Graham asked this question, and I
listened to your answer when he asked you what would happen to
those 800,000 currently protected by President Obama's
Executive order known as DACA, who cannot be deported for 2
years--it is renewable--and can work for 2 years, and you said,
``Let Congress pass a comprehensive immigration reform bill.''
You opposed the only bipartisan effort that we have had on
the Senate floor in modern memory. And what is going to happen
to those 800,000 if you revoke that order and they are subject
to deportation tomorrow? What is going to happen to them? What
is the humane legal answer to that?
Senator Sessions. Well, the first thing I would say is that
my response to Senator Graham dealt with whose responsibility
this is. I had a responsibility as a Member of this body to
express my view and vote as I believed was correct on dealing
with issues of immigration. That is not the Attorney General's
role. The Attorney General's role is to enforce the law. And as
you know, Senator Durbin, we are not able financially or any
other way to seek out and remove everybody that is in the
country illegally.
President Trump has indicated that criminal aliens, like
President Obama indicated, certainly are the top group of
people and so I would think that the best thing for us to do--
and I would urge my colleagues to understand this. Let us fix
this system. And then we can work together after this
lawlessness has been ended, and then we can ask the American
people and enter into a dialogue about how to compassionately
treat people who have been here a long time.
Senator Durbin. That does not answer the question about the
800,000 who would be left in the lurch, whose lives would be
ruined while you are waiting on Congress for a bill that you
opposed.
Senator Sessions. Well, I thought it did answer it pretty
closely, what you asked, and I understand your concerns.
Chairman Grassley. Senator Cornyn.
Senator Cornyn. Senator Sessions, congratulations to you
and your family on this once-in-a-lifetime honor to serve as
the head of the Department of Justice.
You know, sitting here listening to the questions and some
of the comments that have been made, both by the protesters and
others, it strikes me that many people have been surprised to
learn more about your record, your outstanding record as a
prosecutor, as somebody who treated that responsibility to
uphold and enforce the law and the Constitution without fear or
favor. I think some people here listening today have been
somewhat surprised by your record in complete context.
Those of us who have served with you in this Senate, some
as many as 20 years, like Senator Shelby and Senator Collins,
testified to your character. But I like to think that those of
us who served with you most closely in the Senate, particularly
here on the Judiciary Committee, know more about you than just
your record and your character. We know your heart. We know
what kind of person you are. You are a good and decent and
honorable man. You have got an outstanding record that you
should be proud of, and I know you are. And you should be.
For example, when somebody says that you unfairly
prosecuted some African Americans for voter fraud in Alabama,
it strikes me as ``incomplete,'' is the most charitable thing I
can say, when they leave out the fact that the very
complainants in that case were also African Americans. In other
words, the people you prosecuted were African Americans, but
the people whose voting rights you were trying to vindicate
were African Americans. Is that not correct?
Senator Sessions. That is correct.
Senator Cornyn. Does that strike you as a fair
characterization of your approach toward enforcing the law that
people would leave that important factor out?
Senator Sessions. It is not, Senator Cornyn, and it has
been out there for a long time. If you ask people who casually
follow the news, they probably saw it otherwise. These were
good people who asked me to get involved in this case. In 1983,
a majority African-American grand jury with an African-American
foreman asked the Federal Government to investigate the 1982
election. I declined. I hoped that that investigation would
have stopped the problem. But 2 years later, the same thing was
happening again. We had African-American incumbent officials
pleading with us to take some action. We approached the
Department of Justice in Washington, the Public Integrity
Voting Section. They approved an investigation, and it
developed into a legitimate case involving charges of vote
fraud, taking absentee ballots from voters, opening them up,
and changing their vote and casting them for somebody they did
not intend the vote to be cast for. It was a voting rights
case, and I just feel like we tried to conduct ourselves in the
right way. I never got in the argument of race or other
matters. I just tried to defend myself as best I could.
I would note, colleagues, that just in the last few days,
the son of Albert Turner has written a letter and said I was
just doing my job, and he understood the reason and the
justification for the prosecution and that I would be a good
Attorney General. So that was gratifying to me, and that is the
real truth of the matter.
Senator Cornyn. Senator Sessions, I know the nature of
these confirmation hearings is that people pick out issues that
they are concerned about or where there may be some good faith
disagreement on policy, and that is what they focus on. But let
me just ask you--maybe it is not a great analogy, but let me
try anyway. You have been married to your wife, Mary, almost 50
years, right?
Senator Sessions. Well, it has not gotten to 50 yet. Forty-
seven, soon to be 48.
Senator Cornyn. Forty-seven, okay. Well, that is a good
run. Let me just ask you, are there----
Senator Sessions. Let it continue. I have been blessed.
Senator Cornyn. Are there occasions when you and your wife
disagree?
Senator Sessions. No, Senator.
[Laughter.]
Chairman Grassley. You are under oath.
Senator Sessions. Wait a minute. I am under oath. On
occasion we do, yes.
Senator Cornyn. Do you think it would be fair to
characterize the nature of your relationship with your wife
based upon those handful of disagreements that you have had
with her over time?
Senator Sessions. That is a good point. Thank you for
making it. No, I do not.
Senator Cornyn. Well, and to your original point, your wife
is always right.
Senator Sessions. That is correct.
Senator Cornyn. You are under oath.
[Laughter.]
Senator Cornyn. Well, so this is the nature of these
confirmation hearings. People are identifying specific issues
where there are policy differences, but my point is that does
not characterize your entire record of 20 years in the United
States Senate or how you have conducted yourself as a
prosecutor representing the United States Government in our
Article III courts.
Let me get to a specific issue, to a couple, in the time I
have remaining. I was really pleased to hear you say in your
opening statement that many in law enforcement feel that our
political leaders have on occasion abandoned them. You said
police ought to be held accountable. But do you believe that it
is ever under any circumstances appropriate for somebody to
assault a police officer, for example?
Senator Sessions. There is virtually no defense for that
kind of action, and I do believe that we are failing to
appreciate police officers who place their lives at risk. This
sergeant, who was just killed yesterday, was trying to deal
with a violent criminal and vindicate the law when she was
killed. That is the kind of thing that too often happens. We
need to be sure that when we criticize law officers, it is
narrowly focused on the right basis for criticism. And to smear
whole departments places those officers at greater risk, and we
are seeing an increase in murder of police officers. It was up
10 percent last year.
I could feel in my bones how it was going to play out in
the real world when we had what I thought oftentimes was
legitimate criticism of perhaps wrongdoing by an officer, but
spilling over to a condemnation of our entire police force. And
morale has been affected, and it has impacted the crime rates
in Baltimore and crime rates in Chicago. I do not think there
is any doubt about it. I regret that is happening. I think it
can be restored, but we need to understand the requirement that
the police work with the community and be respectful of their
community, but we as a Nation need to respect our law officers,
too.
Senator Cornyn. Well, I for one appreciate your comments,
because we ought to hold our police and law enforcement
officers up in the high regard to which they deserve based on
their service to the communities. And your comments remind me
to some extent of Chief David Brown's comments, the Dallas
police chief, following the tragic killing of five Dallas
police officers recently, where he said that police ought to be
held accountable, but under no circumstances could any assault
against a police officer be justified based on what somebody
else did somewhere at some time. So I for one appreciate that
very much.
You mentioned Baltimore and Chicago, and we have seen an
incredible number of people, frequently in minority
communities, who have been killed as results of crimes related
to felons who perhaps are in possession of guns that they have
no legal right to be in possession of. Earlier, you talked
about prosecuting gun crimes, and I am glad to hear you say
that. Project Exile, which originated I think in Richmond,
Virginia, which targeted felons and other people who cannot
legally own or possess firearms, was enormously effective. And
when I look at the record of the last 5 and 10 years at the
Justice Department, prosecution of those kinds of crimes down
15.5 percent in the last 5 years, down 34.8 percent in the last
10 years.
Can you assure us that you will make prosecuting those
people who cannot legally possess or use firearms a priority
again in the Department of Justice and help break the back of
this crime wave that is affecting so many people in our local
communities like Chicago or Baltimore, and particularly
minority communities?
Senator Sessions. I can, Senator Cornyn. I am familiar with
how that plays out in the real world. My best judgment,
colleagues, is that, properly enforced, the Federal gun laws
can reduce crime and violence in our cities and communities. It
was highlighted in Richmond in Project Exile. But I have to
tell you, I have always believed that. When I was United States
Attorney in the 1980s and into the early 1990s, we produced a
newsletter that went out to all local law enforcement called
``Project Triggerlock,'' with the Federal law enforcement, too,
and it highlighted the progress that was being made by
prosecuting criminals who use guns to carry out their crimes.
Drug-dealing criminals are most likely the kind of people
who will shoot somebody when they go about their business. And
if those people are not carrying guns because they believe they
might go to Federal court, be sent to a Federal jail for 5
years, perhaps, they will stop carrying those guns during their
drug dealing and their other activities that are criminal.
Fewer people will get killed.
So I truly believe that we need to step that up. It is a
compassionate thing. If one of these individuals carrying a gun
shoots somebody, not only is there a victim; they end up with
hammering and a sentence in jail for interminable periods. The
culture, the communities are safer with fewer guns in the hands
of criminals.
Senator Cornyn. Thank you.
Chairman Grassley. Before we go to Senator Whitehouse,
Members have asked me about our break, and if it is okay with
Senator Sessions, it would work out about 1 o'clock if we have
three on this side and three on this side for 1 hour, because
it is noon right now. Is that okay with you, Senator Sessions?
Senator Sessions. Mr. Chairman, I am at your disposal.
Chairman Grassley. This will give my colleagues an
opportunity, if they want, to go to the respective political
party caucuses. And we would take a recess of about 30 to 40
minutes.
Senator Leahy. That is very fair.
Chairman Grassley. Okay. Thank you, Senator.
Now, Senator Whitehouse.
Senator Whitehouse. Senator Sessions, hello.
Senator Sessions. Thank you, Senator Whitehouse.
Senator Whitehouse. When we met, I told you that I was
going to ask you a particular question, so I am going to lead
off with that particular question.
Following the Gonzales scandals at the Department of
Justice, the Department adopted procedures governing
communications between the White House and the Department of
Justice consistent with constraints that were outlined years
ago in correspondence between Senator Hatch and the Reno
Justice Department limiting contacts between a very small
number of officials at the White House and a very small number
of officials at the Department of Justice. Will you honor and
maintain those procedures at the Department of Justice?
Senator Sessions. I will, Senator Whitehouse.
You as an honorable and effective United States Attorney
yourself know how that works and why it is important. Attorney
General Mukasey issued a firm and----
Senator Whitehouse. And very clear about supporting that
policy, yes.
Senator Sessions. Maybe still pending, and I would say to
you--well, that is the appropriate way to do it. After you and
I talked, I read the Reno memorandum, the Gorelick memorandum,
and I think I would maintain those rules.
Senator Whitehouse. On the subject of honorable
prosecutions, when is it appropriate for a prosecutor to
disclose derogatory investigative information about a subject
who was not charged?
Senator Sessions. That is a very dangerous thing, and it is
a pretty broad question, as you ask it. But you need to be very
careful about that, and there are certain rules, like grand
jury rules, that are very significant.
Senator Whitehouse. And is it not also true that it is
customary practice because of the concern about the improper
release of derogatory investigative information that the
Department customarily limits its factual assertions even after
an individual has been charged to the facts that were charged
in the information or the indictment?
Senator Sessions. I believe that is correct, yes. That is a
standard operating policy in most offices. There may be some
exceptions, but I think that is standard operating procedure in
the United States Attorneys' Offices like you and I had.
Senator Whitehouse. As a question of law, does
waterboarding constitute torture?
Senator Sessions. Well, there was a dispute about that when
we had the torture definition in our law. The Department of
Justice memorandum concluded it did not necessarily prohibit
that. But Congress has taken an action now that makes it
absolutely improper and illegal to use waterboarding or any
other form of torture in the United States by our military and
by all our other departments and agencies.
Senator Whitehouse. Consistent with the wishes of the
United States military.
Senator Sessions. They have been supportive of that. And,
in fact, I would just take a moment to defend the military. The
military----
Senator Whitehouse. You do not need to defend them from me.
I am all for our military.
Senator Sessions. I know. But I just--so many people, I
truly believe, think that the military conducted waterboarding.
They never conducted any waterboarding. That was by
intelligence agencies. And their rules were maintained. I used
to teach the Geneva Conventions and the Rules of Warfare as an
Army Reservist to my personnel, and the military did not do
that.
Senator Whitehouse. And General Petraeus sent a military-
wide letter disavowing the value of torture, as we both know.
Another question, another question as a matter of law: Is
fraudulent speech protected by the First Amendment?
Senator Sessions. Well, fraudulent speech, if it amounts to
an attempt to obtain a thing of value for the person the
fraudulent speech is directed----
Senator Whitehouse. Which is an element of fraud.
Senator Sessions [continuing]. Is absolutely fraud and can
be prosecuted, and I think we see too much of that. We see
these phone calls at night to elderly people. We see mailings
go out that seem to me to be awfully far from truth and
seducing people to probably make unwise decisions.
Senator Whitehouse. So fraudulent corporate speech would
also not be protected by the First Amendment.
Senator Sessions. That is correct, and it is subject to
civil and/or criminal complaint.
Senator Whitehouse. And speaking of civil complaints, was
the Department of Justice wrong when it brought and won the
civil RICO action against the tobacco industry?
Senator Sessions. Well, Senator, they won those cases. They
took them to court and eventually won a monumental victory.
That is correct. And it is part of the law and firmly
established.
Senator Whitehouse. Hard to say they were wrong if they
won, right?
Senator Sessions. That is correct.
Senator Whitehouse. As you know, the United States has
retaliated against Russia for its interference with the 2016
elections. In Europe, Baltic States, Germany, and Italy have
raised concerns of Russia meddling in their countries'
elections. I know this has been touched on before, but I want
to make sure it is clear. Will the Department of Justice and
the FBI under your administration be allowed to continue to
investigate the Russian connection even if it leads to the
Trump campaign and Trump interests and associates? And can you
assure us that in any conflict between the political interests
of the President and the interests of justice, you will follow
the interests of justice even if your duties require the
investigation and even prosecution of the President, his
family, and associates?
Senator Sessions. Well, Senator, if there are laws violated
and they can be prosecuted, then, of course, you will have to
handle that in an appropriate way. I would say that the problem
may turn out to be, as in the Chinese hacking of hundreds of
thousands, maybe millions of records, it has to be handled at a
political level. And I do think it is appropriate for a nation
who feels that they have been hacked and that information has
been improperly used to retaliate against those actions. It is
just----
Senator Whitehouse. And I know we share a common interest
in advancing the cybersecurity of this Nation, and I look
forward to continuing to work with you on that.
Let me ask you a factual question. During the course of
this boisterous political campaign, did you ever chant, ``Lock
her up''?
Senator Sessions. No, I did not. I do not think. I heard it
in rallies and so forth, sometimes I think humorously done. But
it was a matter on which I have said a few things. A special
prosecutor, I favored that. I think that probably is one of the
reasons I believe that I should not make any decision about any
such case.
Senator Whitehouse. And you understand that the good guy
lawman in the movies is the one who sits on the jailhouse porch
and does not let the mob in.
Senator Sessions. Exactly. Exactly.
Senator Whitehouse. So I am from Rhode Island, as you know,
Senator. We have NAACP and ACLU members who have heard you call
their organizations--who have heard that you called their
organizations ``un-American.'' We have a vibrant Dominican
community who look at ``Big Papi,'' David Ortiz, swinging his
bat for the Red Sox, and wonder why you said, ``Almost no one
coming from the Dominican Republic to the United States is
coming here because they have a provable skill that would
benefit us.'' I represent a lot of Latinos who worry about
modern-day Palmer raids breaking up parents from their kids and
Muslims who worry about so-called patrols of Muslim homes and
neighborhoods. And I have heard from police chiefs who worry
that you as Attorney General will disrupt law enforcement
priorities that they have set out and disrupt the community
relations that they have worked hard over years of community
engagement to achieve.
Time is short, but I noticed that in your prepared remarks
these are no unforeseeable concerns, and your prepared remarks
did very little to allay the concerns of those people. Is there
anything you would like to add now in our closing minute?
Senator Sessions. Well, thank you. My comment about the
NAACP arose from a discussion that I had where I expressed
concern about their statements that were favoring, as I saw it,
Sandinista efforts and Communist guerrilla efforts in Central
America. And so I said they could be perceived as un-American
and weaken their moral authority to achieve the great things
they had been accomplishing in integration and moving forward
for reconciliation throughout the country. And I believe that,
clearly, and I never said--and accused them of that.
Number two, with regard----
Senator Whitehouse. So what would you tell the
representative of the NAACP in Rhode Island right now? He is
the head of the NAACP----
Senator Sessions. Well, I would say please look at what I
have said about that and how that came about, and it was not in
that context. It was not correct. I said in 1986 that NAACP
represents one of the greatest forces for reconciliation and
racial advancement of any entity in the country, probably
number one. That is what I said then. I believed it, and I
believe it now. And it is an organization that has done
tremendous good for us.
With regard to the Dominican Republic, I had gone on a
codel with Senator Specter. We came through the Dominican
Republic. We visited public service housing projects that
seemed to be working and did other things of that nature, and I
went and spent some time with the consular official there, just
asking about things. And what I learned was that there is a
good bit of fraud in it, and he was somewhat discouraged in his
ability, he felt, to do his job. And we also understood and
discussed that the immigration flow is not on a basis of
skills. The immigration flow from almost all of our countries,
frankly, is based on family connection and other visas rather
than a skill-based program more like Canada has today. And that
is all I intended to be saying there.
Tell anybody who heard that statement, please do not see
that as a diminishment or a criticism of the people of the
Dominican Republic. It was designed to just discuss in my
remarks the reality of our immigration system today. I would
like to see it more skill-based, and I think that would be
helpful.
Senator Whitehouse. Mr. Chairman, my time has expired.
Thank you for your patience.
Chairman Grassley. Thank you, Senator Whitehouse.
Before I go to Senator Lee, there is an evaluation of the
work of Senator Sessions during his time as U.S. Attorney that
I think speaks to his outstanding record. I am made aware of
this because Senator Feinstein requested an evaluation of
Senator Sessions' office from the Department of Justice, and I
would note just a few points from their evaluation back in
1992, a couple of short sentences: ``All members of the
judiciary praise the U.S. Attorney for his advocacy skills,
integrity, leadership of the office, and accessibility.''
And the second quote: ``The USAO for the Southern District
of Alabama is an excellent office with outstanding leadership,
personnel, and morale. The district is representing the United
States in a most capable and professional manner.''
Without objection, I will put that in the record.
[The information referred to appears as a submission for
the record.]
Senator Whitehouse. Mr. Chairman?
Chairman Grassley. Yes?
Senator Whitehouse. While we are putting things into the
record, could I join?
Chairman Grassley. Yes, please do that.
Senator Whitehouse. In a unanimous consent that a December
5, 2016, letter from leaders of the U.S. environmental movement
and a January 5, 2017, letter from the National Task Force to
End Sexual Violence and Domestic Violence Against Women be
added to the record?
Chairman Grassley. Yes, and those will be included, without
objection.
[The letters appear as submissions for the record.]
Chairman Grassley. Senator Lee.
Senator Lee. Hello, Senator Sessions.
Senator Sessions. Hello.
Senator Lee. I have enjoyed working with you over the last
6 years and always found you to be someone who treats
colleagues, regardless of differing viewpoints, with dignity
and respect. You have taught me a great deal in the 6 years I
have been here, and I have appreciated the opportunity to work
with you.
I think a lot of this has to do with the fact that we are
both lawyers, although being a lawyer around here, certainly
having a law degree is not unusual. One of the things that sets
you apart and makes you different, I get the sense from you
that you think of yourself not so much as a Senator who used to
be a lawyer, but as a lawyer who is currently serving as a
Senator. And I think that is an important thing, especially for
someone who has been named to be the next Attorney General of
the United States.
Even though you and I have never had the opportunity to
discuss the intricacies of the Rule Against Perpetuities or the
difference between the Doctrine of Worthier Title and the Rule
in Shelley's Case, I get the sense that you would eagerly
engage in such banter when occasion arises. So maybe in a
subsequent round, we will have the opportunity to do that.
But this does raise a discussion that I would like to have
with you about the role of the lawyer. As you know, a lawyer
understands who his or her client is. Anytime you are acting as
a lawyer, you have got a client. This is a simple thing if you
are representing an individual because in almost every
instance, unless the client is incapacitated, you know who the
client is. The client has one mouthpiece, one voice, and you
know what the interests of that client are, and you can
evaluate those based on the interests expressed by the client.
It gets a little more complicated when you are representing
a corporate entity. Typically, you will interact either with a
general counsel or the chief executive, of course. The bigger
an entity gets, the more complex it gets. There might be some
ripples in this relationship between the lawyer and the client.
In the case of the U.S. Government and the Attorney
General's representation of that client, this is a particularly
big and powerful client, and that client has many interests. In
a sense, the client is, of course, the United States of
America, but at the same time, the Attorney General is there
put in place by the President of the United States and serves
at the pleasure of the President of the United States. And so
in that respect, the Attorney General has several interests to
balance and must at once regard him- or herself as a member of
the President's Cabinet, remembering how the Attorney General
got there and can be removed at any moment by the President;
and at the same time the Attorney General has the obligation to
be independent, to provide an independent source of analysis
for the President and for the President's team and Cabinet.
How do you understand these things as a former U.S.
Attorney, as a former line prosecutor, and as a Senator who
served on the Judiciary Committee? You have had a lot of
opportunities to observe this process. How do you see the
proper balancing between all these interests from the
standpoint of the Attorney General?
Senator Sessions. That is a very insightful or probing
question, and it touches on a lot of the important issues that
I, as Attorney General, would need to deal with. There are even
some times that these Government agencies act like foreign
countries, they negotiate memorandums of understanding that are
akin to a treaty, actually. They cannot seem to work together
oftentimes in an effective way and so the Attorney General is
required to provide opinions on that. The Attorney General
ultimately owes his loyalty to the integrity of the American
people and to the fidelity to the Constitution and the
legitimate laws of the country. That is what he is ultimately
required to do. However, every Attorney General has been
appointed by a President, or they would not become Attorney
General, and they have been confirmed by the Senate or they
would not have been made Attorney General. They do understand,
I think, that if a President wants to accomplish a goal that he
or she believes in deeply, then you should help them do it in a
lawful way, but make clear and object if it is an unlawful
action.
That helps the President avoid difficulty. It is the
ultimate loyalty to him, and you hope that a President, and I
hope President-elect Trump has confidence in me so that if I
give him advice that something can be done, or cannot be done,
that he would respect that. That is an important relationship,
too, but ultimately you are bound by the laws of the country.
Senator Lee. Some of that, I assume, could come into play
when you are dealing with a politically sensitive case--with a
case that is politically sensitive because it relates to a
member of the administration, or to the interplay between the
executive branch and the legislative branch, for example.
In some of those instances there could be calls for a
special prosecutor. On the one hand this is a way of taking the
Attorney General out of the equation so that it could be
handled in a manner that reflects a degree of separation
between the administration and the case. On the other hand,
there are Constitutional questions that are sometimes raised,
and sometimes people argue that this poses too much of a
presumption that the special prosecutor will seek an indictment
in order to justify the expense and the time put into
appointing a special prosecutor.
For reasons that relate to the complexity of these
considerations, there are, of course, guidelines in place that
can help guide the determination to be made by the Attorney
General as to when, whether, how, to put in place a special
prosecutor. But even within these guidelines, there is a lot of
flexibility, a lot of discretion in the hands of the Attorney
General in deciding how to do that. Do you have anything that
you would follow? What can you tell us about what
considerations you would consider in deciding whether or not to
appoint a special prosecutor?
Senator Sessions. Well, it is not a little matter. It is a
matter that has created controversy over the years. I do not
think it is appropriate for the Attorney General just to willy-
nilly create special prosecutors. History has not shown that
has always been a smart thing to do. But there are times when
objectivity is required and the absolute appearance of
objectivity is required. And now perhaps a special prosecutor
is appropriate. Attorney General Lynch, for example, did not
appoint a special prosecutor on the Clinton matter. I did
criticize that. I was a politician, we had a campaign on. I did
not research the law in depth, just the reaction as a Senator
of a concern. But great care should be taken in deciding how to
make the appointment or if an appointment of a special
prosecutor is required.
At the Department of Justice you are not required to be a
judge to be a prosecutor. One judge said, ``There's nothing
wrong with a prosecutor who likes his work and doesn't think
laws should be violated.'' Is that a bias? I do not think so. I
think that is a strength. So I just would say that is the best
I could give you at this point, Senator Lee.
Senator Lee. Thank you, that is helpful. Another
challenging issue that relates to this duty of independence
that Attorneys General have relates to the Office of Legal
Counsel. You know, it is, of course, the job of the Office of
Legal Counsel, or OLC, as it is sometimes known, to issue
opinions, within the executive branch on a wide array of
subjects. Some are subjects that a lot of people would find
interesting; others are subjects that only a lawyer could love.
And sometimes only a lawyer specializing in something esoteric
or specific.
There is one recent OLC opinion entitled, ``Competitive
Bidding Requirements Under the Federal Highway Aid Program.''
There are not, perhaps, that many people who would find that
interesting, but there are a lot of others that would capture
immediately the public's interest.
What is significant about all of these, though, no matter
how broad or narrow the topic, no matter how politically sexy
or dull the topic might be, they, in many instances, almost
conclusively resolve a legal question within the executive
branch of Government. And in many instances they are doing so
on the basis of constitutional determinations that may or may
not ever be litigated, such that the broaching of a
constitutional topic might be opened, studied, and resolved
entirely within the executive branch, largely as a result of
how the lawyers within the Office of Legal Counsel decide to do
their jobs.
What can you tell me about what you would do, if confirmed,
to ensure that the Office of Legal Counsel maintains a degree
of professionalism and independence, requisite for this task?
Senator Sessions. Senator Lee, that office is important. It
does adjudicate, or actually opine, on important issues related
to conflicts or disputes within the great executive branch of
the American Government. Like you said, what kind of
competition is required before you get a highway grant? There
may be a disagreement about that and OLC is asked to review it
and stay to one position, that the Government of the United
States is one. It is not a multiple government. These
departments are not independent agencies and so that office is
so exceedingly important as you indicate, because many times
those opinions hold. And they set policy and they affect
things.
Sometimes it also has the power, and I am sure you would be
sensitive to, to expand or constrict the bureaucracies in their
ability to execute under statutes. In other words, is this
within their power, or is it not within their power? So there
are some of the things like that that could impact the American
people over time in a significant way.
Senator Lee. Thank you.
Chairman Grassley. Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman.
Good to see you, Senator Sessions. You and I have worked
together on a number of bills, including leading the
International Adoption Simplification Act, which I believe made
a big difference to a lot of families in keeping their siblings
together when they were adopted. Senator Cornyn and I led the
Sex Trafficking Bill, that passed last year, and you had some
important provisions in that. And then we worked together on
law enforcement issues and I appreciate your respect and the
support that you have from that community and I also thank you
for your work on drug courts, something we both share as former
prosecutors and I believe in the purpose of those courts.
I wanted to lead first with another part of the Justice
Department's jobs, and that is protecting civil rights and the
right to vote. My State had the highest voter turnout in the
last election, of any State. We are pretty proud of that. And
as county attorney for 8 years for Minnesota's biggest county,
I played a major role in making sure that the election laws
were enforced and that people who were able to vote could vote
and that people who should not vote, did not vote.
Since the Voting Rights Act became law more than 50 years
ago, we have made progress, but I have been very concerned
about some of the movements by States to restrict access to
voting. In recent years we have not been able to pass the
Bipartisan Voting Rights Advancement Act forward last Congress.
I just think it is an area that is going to be ripe for a lot
of work going forward.
You and I talked about how at one point you previously
called the Voting Rights Act an ``intrusive piece of
legislation'' and I wondered if you could explain that, as well
as talk about how you will actively enforce the remaining
pieces of the Act; that would be Section 2 which prohibits
voting practices or procedures that discriminate on the basis
of race; and this Section 3 bail-in provision, through which
more States can be subject to preclearance. And you do not have
to go into great detail on those two sections, you could do it
later, but if you could just explain your views of the Voting
Rights Act moving forward and what would happen in terms of
enforcement if you were Attorney General.
Senator Sessions. The Voting Rights Act passed in 1965 was
one of the most important Acts to deal with----
[Audience interruption.]
Senator Sessions [continuing]. Racial difficulties that we
face. And it changed the whole course of history, particularly
in the South. There was a clear finding that there were
discriminatory activities----
[Audience interruption.]
Senator Sessions [continuing]. In the South, that a number
of States were----
[Audience interruption.]
Senator Sessions [continuing]. Were systematically denying
individuals the right to vote. And if you go back into the
history you can see it plainly, actions and rules and
procedures were adopted in a number of States with the specific
purpose of blocking African Americans from voting. And it was
just wrong. And the Voting Rights Act confronted that, and it,
in effect, targeted certain States and required even the most
minor changes in voting procedure----
Senator Klobuchar. Right.
Senator Sessions [continuing]. Like moving a precinct
across the----
Senator Klobuchar. So how would you approach this going
forward? For instance, the Fifth Circuit's decision that the
Texas voter ID law discriminates against minority voters that
was written by a Bush appointee. Do you agree with that
decision? How would you handle this moving forward?
Senator Sessions. Well I have not studied that. There is
going to be a debate about it, courts are ruling on it now--
that is, voter ID and whether or not it is an improper
restriction on voting that adversely impacts disproportionately
minority citizens. So that is a matter that has got to be
decided. On the surface of it, it does not appear to me to be
that. I have publicly said I think voter ID laws properly
drafted are okay, but as Attorney General it will be my duty to
study the facts in more depth, to analyze the law. But
fundamentally that can be decided by Congress and the courts as
they interpret the existing law.
I did vote to extend this Voting Rights Act several years
ago. It included Section 5, but later Section 5 was eliminated
by the Supreme Court, on the basis that----
Senator Klobuchar. And how about the commit----
Senator Sessions [continuing]. Progress had been made and
on an intrusive question, let me answer that.
Senator Klobuchar. Yes.
Senator Sessions. It is intrusive, the Supreme Court on
more than one occasion has described it legally as an intrusive
act, because it only focused on a certain number of States, and
normally when Congress passes a law, it applies to the whole
country. So it is a very unusual thing for a law to be passed
that targets only a few States. But they had a factual basis.
They were able to show that it was justified in this fashion.
So that is the foundation for it and that is why I supported
it, its renewal.
Senator Klobuchar. And I think you will understand as you
look at this issue that there are many voters, people who are
trying to vote that some of these rules that are put in place
are intrusive for them, because it makes it harder for them to
vote and I think that is the balance that you are going to
need.
Senator Sessions. I hear----
Senator Klobuchar. And I just hope, coming from a State
that has such high voter turnout, that has same-day
registration, a very good turnout in Iowa as well, right below
us, States that have put in place some really expansive voter
laws and it does not mean Democrats always get elected. We have
had Republican governors in Minnesota, they have a Republican
governor in Iowa, and I just point out that I think the more we
could do to encourage people to vote, the better democracy we
have.
And I want to turn to another quick question on a
democratic issue, as in a democracy issue that was raised by
Senator Graham and Senator Whitehouse. I just returned with
Senators McCain and Graham from a trip to Ukraine, Baltics,
Georgia, and learned there about how these intrusive cyber
attacks are not just unique to our country, not just unique to
one party, not just unique to one election, and they have seen
that movie before in those countries. And do you have any
reason to doubt the accuracy of the conclusion reached by our
17 intelligence agencies that, in fact, Russia used cyber
attacks to attempt to influence this last election? I am not
asking if you believe that it influenced it, just if you
believe the report of our intelligence agencies.
Senator Sessions. I have no reason to doubt that and have
no evidence that would indicate otherwise.
Senator Klobuchar. Thank you. Violence Against Women Act.
Senator Leahy asked some of those questions really important to
me. You and I discussed it. I just have one question there. If
confirmed, will you continue to support the life-saving work
being done by the Office on Violence Against Women?
Senator Sessions. Yes.
Senator Klobuchar. Okay. Thank you. Immigration. You and I
have some different views on this, and I often focus on the
economic benefits of immigration--the fact that we have 70 of
our Fortune 500 companies headed by immigrants. At one point
200 of our Fortune 500 companies were either formed by
immigrants or kids of immigrants. Roughly 25 percent of all
U.S. Nobel laureates were foreign-born. And just to understand
in a State like mine where we have entry-level workers in
dairies who are immigrants, major doctors at the Mayo Clinic,
police officers who are Somali, if you see that economic
benefit of immigrants in our society?
Senator Sessions. Well, immigration has been a high
priority for the United States. We have been the leading
country in the world in accepting immigration. I do not think
American people want to end immigration. I do think that if you
bring in a larger flow of labor than we have jobs for, it does
impact adversely the wage prospects and the job prospects of
American citizens. I think as a nation we should evaluate
immigration on whether or not it serves and advances the
national interest, not the corporate interest. It has to be the
people's interest first, and I do think too often Congress has
been complacent in supporting legislation that might make
businesses happy, but it also may have had the impact of
pulling wages down.
Doctor Borjas at Harvard has written about that. I think he
is the world's, perhaps most effective and knowledgeable
scholar, and he says that does happen. Wages can be diminished,
and one of the big cultural problems we have today is middle
and lower economic classes of Americans have not had the wage
increases that we would like to see them have. In fact, wages
are still down from what they were in 2000.
Senator Klobuchar. Yes. I just see that we can do a mix of
making sure that we have jobs for people here and then
understanding that we are a country of immigrants.
Senator Sessions. On that subject, for me with Canada----
[Audience interruption.]
Senator Klobuchar. Mr. Chairman, if I could just have
another 30 seconds here, I had one last question.
Senator Sessions. It may be 45 seconds, Mr. Chair. I would
just say that you are close to the Canadian system. And I think
it may be some of those policies ought to be considered by the
United States.
Senator Klobuchar. My last question, Mr. Chairman, is on
the reporters issue. Free press, I believe, is essential to our
democracy. And I have always fought to ensure that those rights
are not compromised. My dad was a reporter, a newspaper
reporter for years. And I am especially sensitive to the role
of the press as a watchdog.
You have raised concerns in the past about protecting
journalists from revealing their sources. You did not support
the Free Flow of Information Act.
In 2015, the Attorney General revised the Justice
Department rules for when Federal prosecutors can subpoena
journalists or their records. And he also committed to
releasing an annual report on any subpoenas issued or charges
made against journalists and committed not to put reporters in
jail for doing their job.
If confirmed, will you commit to following the standards
already in place at the Justice Department? And will you make
that commitment not to put reporters in jail for doing their
jobs?
Senator Sessions. Senator Klobuchar, I am not sure, I have
not studied those regulations. I would note that when I was a
United States Attorney, we knew, everybody knew that you could
not subpoena a witness or push them to be interviewed if they
were a member of the media without approval at high levels of
the Department of Justice. That was in the 1980s.
And so I do believe the Department of Justice does have
sensitivity to this issue. There have been a few examples of
where the press and the Department of Justice have not agreed
on these issues. But for the most part, there is a broadly
recognized and proper deference to the news media.
But you could have a situation in which a member of the
media is really not part of the unbiased media we see today.
And they could be a mechanism through which unlawful
intelligence is obtained. There are other dangers that could
happen with regard to the Federal Government that normally does
not happen to the media covering murder cases in the States.
Senator Klobuchar. All right. Well, thank you. And I will
follow up with that in a written question when you have a
chance to look at that.
Senator Sessions. If you would, I would be----
Senator Klobuchar. Thank you. Thank you.
Chairman Grassley. I call for the first time on a new
Member of the Committee, Senator Sasse from Nebraska.
Senator Sasse. Mr. Chairman, thank you, and thank you for
having me.
Before I get started, I would like to enter into the record
a letter of support from 25 current State Attorneys General,
including Doug Peterson, the Attorney General from my State of
Nebraska. The letter reads in part, ``No one is more qualified
to fill this role than Senator Sessions.'' This is obviously
important testimony from the top law enforcement officers of 25
States.
I ask unanimous consent, Mr. Chairman, to include this in
the record.
Chairman Grassley. Without objection, it will be included.
[The letter appears as a submission for the record.]
Chairman Grassley. Proceed, Senator Sasse.
Senator Sasse. Thank you. Senator Sessions, when you were
introducing your grandkids, and I am amazed that they stayed
around as long as they did, mine would have been more
disruptive earlier, I was thinking about all the time I spend
in schools.
We have a crisis in this country of civic ignorance. Our
kids do not know basic civics. And we have a crisis of public
trust in this country in that many Americans presume that
people in this city are overwhelmingly motivated by partisan
perspectives rather than the public good.
Tragically, our current President multiple times over the
last 3 or 4 years has exacerbated this political polarization
by saying that he did not have legal authority to do things and
then subsequently doing exactly those things, quite apart from
people's policy perspectives on these matters.
This is a crisis when kids do not understand the
distinction between the legislative and the executive branches
and when American voters do not think that people who serve in
these offices take their oaths seriously. So it is not always
as simple as ``Schoolhouse Rock'' jingles on Saturday morning.
But could you at least start by telling us what you think
the place for Executive orders and Executive actions are?
Senator Sessions. That is a good question and a good
premise that we should think about. People are taught
``Schoolhouse Rock'' is not a bad basic lesson in how the
Government is supposed to work. Legislators pass laws, the
President executes laws, as does the entire administration, as
passed by Congress, or it follows the Constitution, and the
judicial branch decides disputes as a neutral umpire, an
unbiased participant, any sides of the controversy and does it
objectively, so I think every day that we get away from that is
really dangerous.
It is true that if a President says, ``I do not have this
authority,'' and other people say the President does not have
certain authority and then it is done by the President, it
confuses people.
I think, colleagues, we too little appreciate something
that is corrosive happening out in our country. There is a
feeling that judges just vote when they get a big case before
them on what their political agenda is and not what the
Constitution actually requires. The judges can redefine the
meaning of words to advance an agenda that they have that may
not be the agenda of the American people. And that inevitably
is corrosive to respect the law.
Senator Sasse. Thank you. But take it one step further,
because there are going to be many cases, there will be many
instances where the administration in which you are likely
going to end up serving will want to do things and they will
want to know what the limits of their Executive discretion is.
Some pieces of legislation that have been passed around here in
recent years sometimes are, you know, well over a thousand
pages with all sorts of clauses ``the Secretary shall--dot,
dot, dot'' fill in the law. So this Congress has regularly
underreached and invited executive overreach. This Congress has
regularly failed to finish writing laws and then invited the
executive branch to do it.
What are some of the markers that you would use to help
understand the limits where the executive branch cannot go?
Senator Sessions. We really need to re-establish that.
Professor Turley, Jonathan Turley, has written about this. It
is just powerful. He is certainly an objective voice in
American jurisprudence. And he says that Congress has just
fallen down on its job.
Now, of course, there are two ways. One of them is that it
writes laws that are too broad. And I would urge all of you to
be sure that when we pass a law or you pass a law, if I am
confirmed, that that law is clear and sets limits. When it does
not set limits, then you can have the secretary of this agency
or that agency claiming they have certain authorities and we
end up with a very muddled litigation maybe resulting from it.
So re-establishing the proper separation of powers and fidelity
to law and to limits is an important issue. And I think,
hopefully, I think that is what you are suggesting.
Senator Sasse. Could you tell me under what circumstances,
if any, you think the Department of Justice can fail to enforce
a law?
Senator Sessions. Well, it can fail to enforce it by
setting prosecutorial policies with regard to declining to
prosecute whole chunks of cases and, in effect, eliminate a
statute. If a new tax is passed and the Department of Justice
says it cannot be collected, then the law is not followed.
You also have circumstances that can redefine the statute
or alter it. If we are talking about improper actions, it could
expand the meaning of the words of the statute far beyond what
Congress ever intended. And that is abuse, too.
Senator Sasse. And not to interrupt you too soon, the
improper, but also, what is proper? Because this administration
has made the case regularly that they need to exercise
prosecutorial discretion because of limited resources. And
obviously, there are not infinite resources in the world, so
what are some proper instances, in your view, when an
administration might not enforce a law?
Senator Sessions. Well, critics of the immigration
enforcement, the DAPA and the DACA laws, said that the
prosecutorial discretion argument went too far. It basically
just eliminated the laws from the books.
Second with regard to that, the President's--well, the
order came from Homeland Security, not from the Department of
Justice, but Homeland Security's order not only said we are not
going to enforce the law with regard to certain large
classifications of people, but those people who had not been
given legal status under the laws of the United States were
given photo IDs, work authorization and Social Security numbers
and the right to participate in these Government programs; that
would appear to be contrary to existing law. So that would, to
me, suggest an overreach.
Senator Sasse. And in parallel before the courts, what
instances would it be legitimate, if any, for the Solicitor
General to not defend a law in court?
Senator Sessions. That is a very good question, and
sometimes it becomes a real matter. In general, the Solicitor
General, as part of the Department of Justice and the executive
branch, states the position of the Department of Justice. And
it has a duty, the Department of Justice does, to defend the
laws passed by this body, by Congress. And they should be
defended vigorously whether or not the Solicitor General agrees
with them or not, unless it cannot be reasonably defended.
Sometimes you reach a disagreement about whether it is
reasonably defensible or not, but that is the fundamental
question. And the Department of Justice should defend laws that
Congress passed unless they are unable to do so in a reasonable
way.
Senator Sasse. What is the place of independent agencies in
a unified executive branch? And do you envision that you will
be making any recommendations to the President to reign in
independent agencies in an effort to preserve the
constitutional distinction between the powers of the Congress
and the administrative responsibilities of an executive branch?
Senator Sessions. Senator, that is a good question, kind of
a historic question at this point in time because it does
appear to me that agencies oftentimes see themselves as
independent fiefdoms. And sometimes you even hear the President
complain about things clearly under his control.
I remember President Clinton complaining about the death
penalty processes of the department of the Federal Government
when he appointed the Attorney General who had just appointed a
committee to make sure the death penalty was properly carried
out. So whose responsibility is this? You are in charge, you
can remove the Attorney General if you are not happy. Those
kind of things do continue out there that we need to be careful
about. And I thank you for raising it.
Senator Sasse. I have less than a minute left, so last
question. But going back to something that Senator Lee was
asking about, could you just give a topline summary of what you
view the responsibilities of the OLC to be and what the
relationship would be between the OLC, the Office of the
Attorney General, and the White House?
Senator Sessions. Well, OLC has statutory duties to make
opinions. The OLC team reports to the Attorney General who
could reverse, I suppose, or remove the OLC head, the Deputy
Attorney General, if he thought that department was not
following the law. But essentially, they are given the power.
As Attorney General, I had an opinions section in Alabama and
they rendered opinions on a whole host of matters when called
upon from school boards and highway departments and that sort
of thing.
This OLC does represent a key position in the Department of
Justice. They must have extraordinary legal skill. They have to
be terrific lawyers. They have to understand the constitutional
order of which we are a part. And they should render objective
decisions day after day, week after week. It is ultimately the
responsibility of the President and the Attorney General to
ensure that we have that kind of quality at OLC.
Senator Sasse. Thank you.
Chairman Grassley. Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Senator, congratulations on your nomination.
Senator Sessions. Thank you.
Senator Franken. In 2009 when you became the Ranking
Republican on this Committee, you were interviewed about how
you would approach the Committee's work and nominations
specifically. You said that Democrats should expect you to be
fair because you had been through this process yourself back in
1986 and you felt that back then the Committee had distorted
your record. You said that moving forward, ``We are not going
to misrepresent any nominee's record and we're not going to lie
about it.'' And we certainly do not want to do that to our
colleague.
But I also think it is fair to expect that sitting before
us today that you are not going to misrepresent your own
record. That is fair to say, right?
Senator Sessions. That is fair.
Senator Franken. Good. Now, in that same interview, you
said, ``I filed 20 or 30 civil rights cases to desegregate
schools and political organizations and county commissions when
I was United States Attorney.'' So 20 or 30 desegregation
cases. Did I misread that quote?
Senator Sessions. I believe that is what I have been quoted
as saying, and I suspect I said that.
Senator Franken. Okay. Okay, now that was 2009. But in
November of this year, your office said, ``When Senator
Sessions was U.S. Attorney, he filed a number of desegregation
lawsuits in Alabama''; not 20 or 30 this time, but ``a
number.''
So tell me, did you file 20 or 30 desegregation cases or is
it some other number?
Senator Sessions. Well, thank you, Senator Franken. It is
important for us to be accurate. The records do not show that
there were 20 or 30 cases actually filed. Some of the cases
involved multiple defendants and multiple parties, like to a
school board and a county commission being sued for racial
discrimination, things of that nature. But the number would be
less than that as we have looked at. So I----
Senator Franken. What do you think would have caused you to
say that you filed 20 or 30 desegregation cases?
Senator Sessions. I do not know. I thought--well, we had
cases going throughout my district, and some of them were
started before I came and continued after I left. Some of them
were brought and then settled promptly. And so it was
extraordinarily difficult and actually I was surprised to get a
record by checking the docket sheets to find out exactly how
many cases were involved.
Senator Franken. Okay.
Senator Sessions. I heard one lawyer from the Department of
Justice, I believe, with that large number.
Senator Franken. Let me move on. Right.
Senator Sessions. But I do not--the record does not justify
it.
Senator Franken. The questionnaire you have submitted for
today asks you to list and describe the ``10 most significant
litigated matters you personally handled.'' Personally handled.
And among the cases that you listed that you personally handled
are three voting rights cases and a desegregation case.
Last week, I should note, three attorneys who worked at DOJ
and who actually brought three of the four cases wrote an op-ed
piece in which they say, ``We can state categorically that
Sessions had no substantive involvement in any of them.'' Now,
you originally said that you personally handled three of these
cases, but these lawyers say that you had no substantive
involvement.
Chairman Grassley, I would ask that that op-ed from last
Tuesday's Washington Post be entered into the record.
Chairman Grassley. Without objection, it will be entered.
[The op-ed article appears as a submission for the record.]
Senator Franken. Are they distorting your record here?
Senator Sessions. Yes. In fact, one of the writers there,
Mr. Hebert, spent a good bit of time in my office. He said I
supported him in all the cases he brought, that I was more
supportive than almost any other U.S. Attorney and that I
provided office space, I signed the complaints that he brought.
And as you may know, Senator Franken, when a lawyer signs a
complaint, he is required to affirm that he believes in that
complaint and supports that complaint and supports that legal
action, which I did.
We sued----
Senator Franken. So that is your personal involvement was
that your name was on it?
Senator Sessions. Well, look, you can dispute the impact or
the import of the questionnaire. Another attorney, Paul
Hancock, who brought cases in our district said, well, Attorney
General claims credit for the cases in the Department of
Justice, he saw nothing wrong with my claiming that this was a
case that I had handled.
Senator Franken. Okay. Two of the----
Senator Sessions. So you can disagree with that, but those
cases----
Senator Franken. Okay. I want to get through this and I do
not want any----
Senator Sessions. Those cases have my signature on the
docket sheet.
Senator Franken. I want to get through this.
Senator Sessions. My name is listed number one as the
attorney for the case.
Senator Franken. Okay, look, I am not a lawyer. I am one of
the few Members of this Committee who did not go to law school,
and usually I get by just fine. But it seems to me that a
lawyer, if a lawyer has his name added to a document here or
filing there, that lawyer would be misrepresenting his record
if he said he had personally handled these cases.
Two of the lawyers who wrote the op-ed have also submitted
testimony for today's hearing, Mr. Gerry Hebert and Mr. Joe
Rich. Mr. Hebert says he ``litigated personally two of the four
cases'' you listed. He said, ``I can state with absolute
certainty that Mr. Sessions did not participate personally in
either.'' Mr. Rich worked on one of the four cases you listed.
He said, ``I never met him at that time nor any other time and
he had no input to the case.'' These represent three of the
four cases that you claimed that were among the top 10 cases
that you personally handled.
Now, in your 1986 questionnaire, you used phrases like, ``I
prepared and tried the case as sole counsel'' and ``I was the
lead prosecutor on this case'' assisted by so-and-so. Why did
you not use the same level of detail in your 2016
questionnaire?
Senator Sessions. In looking at this questionnaire, we
decided that that was an appropriate response since these were
major historic cases in my office. Let me just reply, Senator
Franken, in this fashion. Mr. Hebert in 1986, when he testified
at my hearing, said, ``We have had difficulty with several U.S.
Attorneys in cases we have wanted to bring. We have not
experienced that difficulty in the cases I have handled with
Mr. Sessions. In fact, quite the contrary.'' He goes on to say,
``I have had occasion numerous times to ask for his assistance
and guidance. I have been able to go to him and he has had an
open-door policy and I have taken advantage of that and found
him cooperative.'' And that is an accurate statement.
I do not know Mr. Rich. Perhaps he handled a case that I
never worked with. He goes on to say, ``The''----
Senator Franken. Well, one of the cases----
Senator Sessions. No, I want to--you raised this question,
Senator Franken.
Senator Franken. One of the cases that you listed was a
case that Mr. Rich handled. So if you do not know him, it is
hard for me to believe that you personally handled it.
Senator Sessions. Well, when I found these cases, I had
been supportive of them.
Senator Franken. You filed them.
Senator Sessions. I am sure I was--Mr. Hebert says, ``And
yet, I have needed Mr. Sessions' help in those cases and he has
provided that help every step of the way. In fact, I would say
that my experience with Mr. Sessions has led me to believe that
I have received more cooperation from him, more active
involvement from him because I have called upon him.'' Quote,
``I have worked side by side with him on some cases in the
sense that I have had to go to him for some advice.''
Senator Franken. In some cases, not necessarily the ones
you listed.
Senator Sessions. Well, look, this is 30 years ago. And my
memory was of this nature and my memory was my support for
those cases.
Senator Franken. Your memory. Okay. Look, I am not--I am
one of the few Members of this Committee who is not a lawyer.
The Chairman, the Ranking are not. But when I hear ``I filed a
case,'' you know, I do not know some of the parlance, if it
might have a special meaning in legal parlance. But to me as a
layman, it sounds to me like ``filed'' means ``I led the case''
or ``I supervised the case.'' It does not mean that my name was
on it.
And it seems to me, look, I will close, Mr. Chairman,
setting aside any political or ideological differences that you
or I may have, DOJ is facing real challenges, whether it is
protecting civil rights or defending national security, and our
country needs an Attorney General who does not misrepresent or
inflate their level of involvement on any given issue.
Senator Sessions. I hear you.
Senator Franken. So I consider this serious stuff as I know
that you would if you were in my position.
Senator Sessions. Well, you are correct, Senator Franken.
We need to be accurate in what we say. When this issue was
raised, I did do a supplemental that I ``provided assistance
and guidance to Civil Rights Division attorneys, had an open-
door policy with them, and cooperated with them on these
cases.''
I signed them, I supported cases and attempted to be as
effective as I could be in helping them be successful in these
historic cases. I did feel that they were the kind of cases
that were national in scope and deserved to be listed on the
form. If I am in error, I apologize to you. I do not think I
was.
Senator Franken. Well, you could not find 20 or 30
desegregation cases that you stated you had participated in and
it does not sound like you personally handled cases that you
said you personally handled.
Thank you.
Senator Sessions. Well, I was on a radio interview without
any records and that was my memory at the time.
Chairman Grassley. I think you answered the question.
Senator Franken. Thank you.
Chairman Grassley. Senator Flake. Now, it is 12:59, so at
1:09 we will adjourn for lunch. I will be back here then at
1:39 and whoever is present will start then. But I hope
everybody can be back here at least by 1:45. Go ahead, Senator
Flake.
Senator Flake. Well, thank you. It is always nice to be the
last one standing between lunch.
[Laughter.]
Chairman Grassley. Let us have order for Senator Flake.
Senator Flake. Hey, I just want to say at the outset how
much I have enjoyed working with you and being your colleague.
I appreciate having you as a friend.
It is no secret we have had our difference of opinion on
immigration legislation that we put forward. You have had
different ideas. But I have no doubt that as Attorney General
you will faithfully execute the office. And I appreciate the
answers that you have given today.
Let me ask unanimous consent to submit a column written by
our own Attorney General in Arizona, Mark Brnovich, for The
Hill newspaper this week, supporting your nomination.
Chairman Grassley. Without objection, it will be included.
[The newspaper column appears as a submission for the
record.]
Senator Flake. Let me talk to you about an aspect of
immigration that is important in Arizona. As you know, we have
a large border with Mexico. We have a program called Operation
Streamline that has, over the years, been tremendously
effective in cutting down recidivism in terms of border
crossers. What it is, basically, it is intended to reduce
border crossing by expeditiously prosecuting those who enter
the country illegally under a no-tolerance or zero-tolerance
policy. It is credited with being instrumental in achieving
better border security, specifically in the Yuma Sector along
the western side of Arizona's border with Mexico.
Nevertheless, in recent years, the U.S. Attorney's Office
for the District of Arizona adopted a policy that ended
prosecutions for those who cross but for--well, without a
criminal history other than simply crossing the border. I have
asked Attorney General Holder and Attorney General Lynch as
well as Secretary Johnson at Homeland Security on what is being
done here and I have not gotten a straight answer, no matter
how many times I ask the question. So I am looking forward to a
little more candor here.
As Attorney General, if you are confirmed, what steps will
you take to restore Operation Streamline to a zero-tolerance
approach that has been so successful in Arizona, in a portion
of Arizona's border?
Senator Sessions. Thank you, Senator Flake. I have enjoyed
working with you. And I know the integrity with which you bring
your views on the immigration system. Like you, I believe that
Streamline was very effective. And it was really a surprise
that it has been undermined significantly.
The reports I got initially, some years ago, maybe a decade
or more ago, was that it was dramatically effective, and so I
would absolutely review that. And my inclination would be, at
least at this stage, to think it should be restored and even
refined and made sure it is lawful and effective. But I think
it has great positive potential to improve legality at the
border.
Senator Flake. All right. Well, thank you. It has been
effective in Yuma, and I can tell you there is concern there
among the Sheriff's Office, Sherriff Wilmot and others,
concerned that we are seeing an increase in border crossings
simply because the cartels understand very well where there is
a zero-tolerance policy and where there is not. Word spreads.
And we could quickly get to a situation where we have a problem
in the Yuma Sector, like we do in the Tucson Sector.
Is there any reason why we have not expanded this program
to the Tucson Sector if it has been successful elsewhere?
Senator Sessions. I do not know what reason that might be.
It seems to me that we should examine the successes and if they
cannot be replicated throughout the border.
Senator Flake. All right. Well, thank you. I look forward
to working with you on that.
Senator Sessions. I appreciate that opportunity to work
with you on that because I have long felt it is the right
direction for us to go.
Senator Flake. All right, thank you. When we have a
successful program, it is difficult to see it scrapped and to
see the progress that has been made in certain parts of the
border done away with.
Let me get to another subject here: victims' rights. This
is an area of the law that you have shown particular interest
in over your time as a Senator. I have with me letters of
support for your nomination from various victims' groups and
advocates, the Victims of Crime and Leniency, Verna Wyatt,
Victims and Friends United, op-ed by Professors Paul Cassell
and Steve Twist, all in support of your nomination. I would ask
that these documents be placed as part of the record.
Chairman Grassley. Without objection, they will be placed
in the record.
[The letters appear as submissions for the record.]
Senator Flake. As Attorney General, what steps will you
take to ensure that victims' rights are protected?
Senator Sessions. We cannot forget victims' rights. We have
victim witness legislation that creates within each United
States Attorney's Office a victim-witness coordinator. And the
job of that person is to make sure the concerns of the victims
are heard. If they have to come to court, to help them get
there, to make sure that they do not feel threatened and are
protected. That is a direct responsibility of the Department of
Justice and the criminal justice system as directed by
Congress. So I really think that is one step and that is the
fundamental mechanism.
I think Senator Kyl was a strong advocate for that. And it
helped really improve the treatment of victims in Federal
criminal cases. There is just no doubt about it.
Senator Flake. Well, thank you. I was going to note the
presence of former Senator Kyl, my predecessor in this office,
who did so much work in this area, partnering with you. So
thank you for that answer.
Senator Sessions. I am honored that he is giving of his
time to assist me in this effort, honored very greatly.
Senator Flake. Thank you. Let us talk about the Prison Rape
Elimination Act. It was mentioned previously, I think, by
Senator Collins. As Attorney General, you will lead not only
the department of prosecutors and law enforcement officials,
but also the Bureau of Prisons. You will be responsible for
190,000 Federal inmates currently in custody. This is an often
overlooked part of the Attorney General's role, but it is an
important part of the position that you are being nominated
for.
I believe one of the highlights in your record in the
Senate is your leadership in passing the Prison Rape
Elimination Act of 2003, or PREA, which passed both Chambers
without objection and was signed into law by George W. Bush.
This was a bipartisan bill. You worked across the aisle with
the late Senator Kennedy as well as with Republican
Representative Frank Wolf, Democrat Representative Bobby Scott
in the House, and I have letters of support from anti-prison-
rape activists that I would also like to put as part of the
record, without objection, if I could.
Chairman Grassley. Without objection.
[The letters appear as submissions for the record.]
Senator Flake. Thank you. With the law approaching its 15th
anniversary, 11 States have certified that they are in
compliance with the national standards, another 41 States and
territories have provided assurances that they are working
toward compliance. Only four States and territories have chosen
not to participate.
Is PREA meeting the expectations you had for it when you
introduced the bill in 2003?
Senator Sessions. I do not think there is any doubt that it
has improved the situation. As to whether it has reached its
full potential, I do not think I am able to tell you with
certainty, but I certainly think it has made a positive
difference.
You know, it was a special time for me. Senator Kennedy was
a strong critic of me in 1986. And he said, you know, as we
were working on this, he said I have wanted to work with you on
legislation like this. And I think it was sort of a
reconciliation moment. We also worked on another major piece of
legislation for several years. It would have been rather
historic, but it was private savings accounts for lower-wage
workers in America that I guess the financial crisis of '07 or
some things happened that ended that prospect.
But I believe that it is important for the American people
to know that when an individual is sentenced to prison they are
not subjected to cruel and inhuman punishment under the
Constitution at a minimum.
And the idea that was so widely spread that there is
routine sexual abuse and assaults in prisons and other kind of
unacceptable activities was widespread in our media and
widespread among the American people. One of our goals was to
establish just how big it was, to require reporting, and to
create circumstances that helped ensure that a person who
should be prosecuted for violence in the prison actually does
get prosecuted--that was a real step forward. We do not need to
subject prisoners to any more punishment than the law requires.
Senator Flake. Thank you. And in just the remaining seconds
I have, let me just say there is another area that we have
worked on and hopefully we can continue to work on and that is
the area of duplicative DOJ grants. As you know, the department
awarded approximately $17 billion in grants over the years. OIG
reports, GAO reports have all shown that there is duplication
and waste, sometimes fraud and abuse.
Will you continue to commit to work to root out this kind
of duplicative action there?
Senator Sessions. Well, I know you have had a history of
being a staunch defender of the Treasury against those who
would abuse it. And I believe the same way, it is the
taxpayers' money. Every dollar that is extracted from an
American citizen that goes into the Government needs to get to
productive, valuable activities. And any of it that is
delivered for political and insufficient reasons is a cause of
great concern.
I will make it a priority of mine to make sure that the
dollars we have are actually getting to the purposes they are
supposed to go for. It is one thing to say I did a great thing,
I got more money for this good purpose. But did it really
efficiently and effectively go there? Did it really make a
positive difference? So I think the Department of Justice can
utilize those grant programs to help valuable activities, and
it needs to guard against improper activities.
Senator Flake. Thank you, Senator Sessions.
Thank you, Mr. Chairman.
Chairman Grassley. We will break for about 30 minutes. We
will reconvene at 1:40, and Senator Coons would be next up, and
he has indicated he will be here on time. So recess for now.
[Whereupon, at 1:10 p.m., the Committee was recessed.]
[Whereupon, at 1:49 p.m., the Committee reconvened.]
Chairman Grassley. Before I call on Senator Coons, I want
to explain why one of the Members on my side of the aisle
cannot be here. Senator Tillis is unable to attend Senator
Sessions' confirmation hearing today because his brother is
being sworn in to the Tennessee General Assembly.
He also--Senator Sessions, he also wants me to know that he
will submit questions for you to answer in writing.
Senator Coons, as we announced before, will be the first
one this afternoon. Proceed. And Senator Sessions, if there is
any--I will not know unless you tell me--if there is any sort
of 15-minute break or anything you need, let me know.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Grassley. We will do that at the end of some
person asking questions.
Senator Coons.
Senator Coons. Thank you, Chairman Grassley.
Welcome, Senator Sessions. Congratulations to you and Mary
and your whole family on your nomination.
The position of Attorney General of the United States is
one of the most important positions on which this Committee
will ever hold hearings. And the next Attorney General of the
United States will assume leadership of the Justice Department,
on the heels of an election in which there were many issues
thrown about in the course of the campaign, some of which have
been asked about previously--calls for a Muslim ban or patrols,
issues of a potential Russian cyberattack affecting our
democracy, calls for mass deportations and chants at some
rallies to ``lock her up'' for one of the candidates. And given
the divisiveness of this election, I think it is critical that
the next Attorney General be well suited for this position and
this time. And as such, I think a successful nominee has to be
able to persuade this Committee that he will act fairly and
impartially administer justice, and advance justice for all
Americans.
Senator Sessions, we have served on this Committee together
for 6 years, and we have worked well together on a few issues--
on State and local law enforcement issues, on the
reauthorization of the Victims of Child Abuse Act and on the
restoration of funding for Federal public defenders. And I
appreciate that partnership. But there has also been many
issues on which we disagreed. Issues from immigration to civil
liberties to civil rights to criminal justice, voting rights,
and torture. And I am concerned about your views on a number of
these issues, as we discussed when we met last week. So I am
grateful to the Chairman and to you that we are going to have a
full and fair hearing on all of these issues today.
Let me start with some questions about your time when you
were Alabama Attorney General and how you understood some
direction you received from the U.S. Department of Justice. At
that point, Alabama was the only State in the country that
handcuffed prisoners to hitching posts. And we talked about
this when we met before, and I said I would ask you about this
in this hearing.
A hitching post was used as a punishment for prisoners
perceived as being unwilling to work or participate in the
daily lives of prison, whether serving on a chain gang or
participating in work, and they would be cuffed by both wrists
to a pole at chest height, sometimes for 7, 8, or 9 hours,
unprotected from sun, heat, or rain, without access, in some
cases, to water or even a bathroom. And as the Attorney
General, you and the Governor received letters from the U.S.
Department of Justice telling you that Alabama's use of the
hitching post in both men and women's prisons was
unconstitutional and unjustified. But as I understand it, the
use of the hitching post continued throughout your term, and
you did not act to stop it.
During this same period, the State of Alabama was sued not
just about hitching posts, but also about chain gangs. Prison
policies in Alabama said a man could be put on a chain gang if
he failed to shave or keep his bed clean, if he disrespected a
member of the staff, and would end up doing hard labor breaking
rocks while being chained together in groups of five, shackled
with eight feet of chain between men. And these practices, the
case that was brought demonstrated, were disproportionately
affecting African Americans.
In later litigation, the practice of using the hitching
post was called by an Alabama judge the most painful and
torturous punishment in Alabama, short of electrocution. And in
2002, the U.S. Supreme Court said using the hitching post was
clearly unconstitutional when it was used in Alabama.
Can you please, Senator, tell me your view today of the use
of the hitching post and chain gang in Alabama corrections, and
what your view is of what action you would take today if these
practices were restored?
Senator Sessions. Thank you very much, Senator. That was an
issue by the Governor, who campaigned and promised that
prisoners should work and he was determined to make that
happen. I believe the litigation occurred after my time as
Attorney General, according to my records, but we could be
wrong. I will supplement the records for you. Certainly the
decision by the Supreme Court and the Federal courts were after
I left office, I believe. So, working of prisoners is an issue
that we have dealt with in the Congress of the United States
and by State legislatures. I think a good employment of a
prisoner is a healthy thing.
I do not favor personally this kind of work. I think it
should be more productive work, work to kind of help the
individual develop a discipline that they could use when they
go on to private life after they leave prison. After the
Supreme Court ruling, I think it is crystal clear what the law
is. That was disapproved and disallowed and found to be
unconstitutional, and I would absolutely follow that as
Attorney General.
Senator Coons. In your view, did it take a ruling by the
U.S. Supreme Court to clarify that this constituted torture,
that it was not just bad corrections policy; it was actually
substantively torture of prisoners?
Senator Sessions. Senator Coons, I do not recall ever
personally being engaged in the studying of the constitutional
issues at stake. It is perfectly legitimate for prisoners to
work, but in decent conditions, and I think it should be the
kind of work that is productive and could actually lead to
developing good habits. I have heard some evidence on that
subject.
So I do not have a legal opinion about the case, have not
studied the details of it.
Senator Coons. Just to be clear, what I was pressing you on
there was the use of the hitching post, which is a disciplinary
measure that had been abandoned by all States but Alabama. It
is really reminiscent more of the stocks, the stockade that was
used centuries ago and, to me, somewhat troubling that it
continued without challenge.
Let me ask you more broadly, as you know, both Republicans
and Democrats on this Committee have worked together to address
ways in which our criminal justice system is broken and to
address the disparate racial impact of over-incarceration that
has resulted the last 30 years.
Senator Tillis and I just yesterday published an op-ed that
we wrote jointly about the importance of responsible, balanced
criminal justice reform. And Senators Grassley and Cornyn, Lee
and Graham, and Flake--all your fellow Republicans--have
supported meaningful reforms to address excessive mandatory
sentences and incarceration. And in my experience here, in 6
years with you, you have steadfastly opposed all of these
efforts at bipartisan sentencing reform.
Help me understand why you have blocked efforts at reducing
mandatory minimum sentences, at creating opportunities for the
revisitation of sentences that may have been overly harsh when
initially imposed, and help me understand whether you think it
is ever proper for a prosecutor to charge anything less than
the most serious offense available and carrying the longest
sentence.
Senator Sessions. Well, that was a lot of questions there,
Senator Coons.
Senator Coons. Yes.
Senator Sessions. So the Sentencing Act has one
foundational requirement now, and that is the minimum
mandatories. The guidelines have been either made voluntary by
the Sentencing Commission and the courts and the policies of
the Attorney General. So the thing that does stand in place are
the minimum mandatories. The minimum that can be sentenced for
a certain offense.
I offered legislation in 2001--it was opposed by the Bush
Justice Department--that would have reduced the sentencing
guidelines. And in fact, what passed a number of years later,
unfortunately, essentially could have been done in 2001. I made
a speech in favor of it saying what you are saying, that it was
disproportionately impacting our African-American community and
we needed to fix it, and eventually that was passed. So I have
a record of doing that, number one.
Number two, so these other things happened in the meantime.
The guidelines were reduced; the Justice Department has reduced
its requirements. The Justice Department now allows a
prosecutor to present a case to the judge that does not fully
reflect the evidence that they have in their files about a
case. That is a problematic thing. I think it is problematic
and difficult to justify a prosecutor charging five kilos of
heroin when the actual amount was 10, to get a lower sentence.
Now, there may be circumstances when somehow proof and other
issues could justify that, but I just would say, as a
principle, you have got to be careful about it.
Finally, colleagues, sentencing guidelines are within the
breadth of the Congress. They are mandated by law. I was
concerned about what we are beginning to see--a rise in crime--
and, at the same time, a decline in sentences. Sentences are
down 19 percent already, as based on the Sessions-Durbin
legislation and guidelines changes. So that is a matter of
interest. And I felt we should slow down a bit before we go
further and make sure we are not making a mistake, Senator
Coons.
Senator Coons. It is my hope that if you are confirmed and
we do make progress on bipartisan criminal justice reform, that
as Attorney General you will carry out whatever legislative
decisions that might be made by this body.
Last, let me just say that in my 6 years here, in addition
to not working with us on a number of bipartisan proposals on
criminal justice reform, that you have been one of the few
Senators to repeatedly and steadfastly vote against
congressional attempts to prohibit torture in the military
context, or in the interrogation context, and to repeatedly
defend enhanced interrogation practices.
Are you clear now that our statutes prohibit torture, and
if the President were to attempt to override that clear legal
authority, what actions would you take?
Senator Sessions. On your previous question, I would note
that the Federal prison population has already dropped 10 or
more percent and will drop another 10,000 this year. So what is
happening now is reducing the Federal population. This law only
dealt with the Federal prison population, and that represents
the most serious offenders. Our Federal DEA and U.S. Attorneys
are prosecuting more serious cases.
With regard to the torture issues, I watched them for some
time, and have been concerned about what we should do about it.
This bill that passed last time was a major step. I thought it
was really not the right step. Senator Graham, I know, has been
a steadfast opponent of torture and supported a lot of
different things opposed to it. It basically took what I was
teaching the young soldiers at the Army Reserve Unit as a
lecturer, as a teacher, the Army Field Manual, and it made that
the law for the entire Government, including the intelligence
agencies and other departments.
I thought that was an unwise step, to take something that
directs even the lowest private to do, to make that the rule
for higher-ups.
Senator Coons. Well, Senator----
Senator Sessions. But it is the law. It is the law, and it
needs to be enforced. Absolutely.
Senator Coons. As we both know, there was a bipartisan
effort to review our experience with enhanced interrogation
that concluded it was not effective.
Senator Sessions. Yes, there was. And of course Senator
Graham was a JAG officer, as I was, for a little bit.
Chairman Grassley. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman.
Senator Sessions, congratulations on your nomination.
Senator Sessions. Thank you.
Senator Cruz. You are a friend; you are a man of integrity.
You and I have worked closely together on this Committee, on
the Armed Services Committee, and I have every confidence you
are going to make a superb Attorney General.
You know, this has been an interesting day at this hearing,
listening to Democratic Senator after Democratic Senator give
speeches in praise of the rule of law. And I am heartened by
that. I am encouraged by that, because for 8 years it has been
absent. For 8 years, we have seen a Department of Justice
consistently disregarding the rule of law.
When Eric Holder's Department of Justice allowed illegal
gun transactions, illegally sold guns to Mexican gun
traffickers as part of ``Fast and Furious,'' guns that were
later used to murder Border Patrol agent Brian Terry, the
Democratic Members of this Committee were silent.
When Eric Holder was found in contempt of Congress for
refusing to cooperate with Congress' investigation into ``Fast
and Furious,'' once again the Democratic Members of this
Committee were silent.
When the IRS illegally targeted United States citizens for
exercising the First Amendment views--for exercising their
roles in the political process, Democratic Members of this
Committee were silent. When the Department of Justice refused
to fairly investigate the IRS targeting citizens and indeed
assigned the investigation to a liberal partisan Democrat who
had given over $6,000 to President Obama and Democrats,
Democrats on this Committee were silent.
When numerous Members of this Committee called on the
Attorney General to appoint a special prosecutor to ensure that
justice was done in the IRS case, Democrats on this Committee
were silent.
When the Justice Department began using Operation Choke
Point to target law-abiding citizens that they disagreed with
politically----
[Audience interruption.]
Senator Cruz. You know, free speech is a wonderful thing.
When the Department of Justice used Operation Choke Point
to target legal businesses because they disagreed politically
with those businesses, the Democrats on this Committee were
silent.
When the Obama Justice Department sent millions of dollars
of taxpayer moneys to sanctuary cities that were defying
Federal immigration law, the Democrats on this Committee were
silent.
When the Obama administration refused to enforce Federal
immigration laws and unilaterally rewrote those laws, the
Democrats on this Committee were silent.
When the Obama administration released tens of thousands of
criminal illegal aliens, including rapists and murderers, into
the general population, Democrats on this Committee were
silent.
When the Department of Justice signed off on the Obama
administration paying a nearly $2 billion ransom to Iran,
contrary to Federal law, the Democrats on this Committee were
silent.
When the Obama administration ignored and rewrote provision
after provision of Obamacare, contrary to the text of the law,
the Democrats on this Committee were silent.
When the Obama administration signed off on illegal recess
appointments that the Supreme Court had to strike down
unanimously, the Democrats on this Committee were silent.
And when the Obama administration released five Guantanamo
terrorists without the required notification to Congress, the
Democrats on this Committee were silent.
That pattern has been dismaying for 8 years, but I take
today as a moment of celebration. If once again this Committee
has a bipartisan commitment to rule of law, to following the
law, that is a wonderful thing and it is consistent with the
tradition of this Committee going back centuries.
Now, if we were to play a game of tit for tat, if what was
good for the goose were good for the gander, then a Republican
Attorney General should be equally partisan, should disregard
the law, should advance political preferences favored by the
Republican Party.
Senator Sessions, do you believe that would be appropriate
for an Attorney General to do?
Senator Sessions. No, I do not. I think we do have to be
aware that when something like this is done, and some of the
things I am familiar with enough to agree with you that I
thought were improper, I do believe it has a corrosive effect
on public confidence and the constitutional republic of which
we are sworn to uphold.
Senator Cruz. I think you are exactly right. You and I are
both alumni of the Department of Justice, and it has a long
bipartisan tradition of staying outside of partisan politics,
of simply and fairly enforcing the law.
I will say right now, if I believed that you would
implement policies, even policies I agreed with contrary to
law, I would vote against your confirmation. And the reason I
am so enthusiastically supporting your confirmation is I have
every degree of confidence you will follow the law faithfully
and honestly. And that is the first and most important
obligation of the Attorney General.
Now, earlier in this hearing, Senator Franken engaged you
in a discussion that I think was intended to try to undermine
your character and integrity, and in particular, Senator
Franken suggested that you had somehow misrepresented your
record.
It is unfortunate to see Members of this body impugn the
integrity of a fellow Senator with whom we have served for
years. It is particularly unfortunate when that attack is not
backed up by the facts. Senator Franken based his attack
primarily on an op-ed written by an attorney, Gerald Hebert.
There is an irony in relying on Mr. Hebert, because as you well
know, in 1986 during your confirmation hearing, Mr. Hebert
testified then and attacked you then, making false charges
against you. And indeed, I would note, in the 1986 hearing, 2
days later, Mr. Hebert was forced to recant his testimony, to
say that he had given false testimony to this Committee and
indeed to say, ``I apologize for any inconvenience caused Mr.
Sessions or this Committee by my prior testimony.'' So an
individual who has testified falsely once before this
Committee, his op-ed is now the basis for Senator Franken's
attack on you. And indeed, the basis of Senator Franken's
attack is he claims you were uninvolved in several civil rights
cases that were listed on your questionnaire.
In 1986, Mr. Hebert testified--this is a quote from him--
``I have needed Mr. Sessions' help in those cases and he has
provided that help every step of the way.'' Is that correct,
that that is what Mr. Hebert testified?
Senator Sessions. Yes, that is correct.
Senator Cruz. Now, in the four cases Senator Franken
referred to, you reported all four of them in your supplement
to the Judiciary Committee, is that right?
Senator Sessions. That is correct.
Senator Cruz. Mr. Franken did not mention that, and let me
point out, here is how you describe your involvement in your
written submission to this Committee: ``For the cases described
in two, four, eight, and nine, my role, like most U.S.
Attorneys in the Nation and with non-criminal civil rights
cases, was to provide support for the Department of Justice
Civil Rights Division's attorneys.
``I reviewed, supported, and co-signed complaints, motions,
and other pleadings and briefs that were filed during my tenure
as U.S. Attorney. I provided assistance and guidance to the
Civil Rights attorneys, had an open-door policy with them, and
cooperated with them on these cases. For the cases described in
six, I supervised litigation and signed the pleadings.''
Now, that is consistent with the 1986 testimony that you
provided help every step of the way, is that correct?
Senator Sessions. Well, I think so, yes.
Senator Cruz. There is no question you have been forthright
with this Committee, and I would note that Members of this
Committee do not have to search far and wide to know who Jeff
Sessions is. We have known every day, sitting at this bench
alongside you.
I want to shift to a different topic, and it is the topic I
opened with, which is the politicization of the Department of
Justice. The Office of Legal Counsel has a critical role of
providing sound legal and constitutional advice, both to the
Attorney General and the President. And in the last 8 years, we
have seen a highly politicized OLC, an OLC that has given
politically convenient rulings, whether on recess appointments,
whether on Executive amnesty, and early on, perhaps that was
started by 2009 Attorney General Holder overruling OLC
concerning legislation trying to grant the District of Columbia
representation in Congress. And it may well be that that sent a
message to OLC that its opinions were to be political and not
legal in nature.
Tell me, Senator Sessions. What will you do as Attorney
General to restore professionalism and fidelity to law to the
Office of Legal Counsel?
Senator Sessions. Senator Cruz, I think any short-term
political agenda gains that come from the abuse of the
lawmaking processes and requirements of the Department of
Justice just do not make sense. It will always, in the long
run, be more damaging, the short-term gain that one might have.
The Office of Legal Counsel, all of us who served in the
Department know, is a big-time position. You need a mature,
smart, experienced person who understands this Government, who
understands the laws and is principled and consistent in their
application of the laws. That will help the President, it will
help the Congress, and it will help the American people. I do
believe we need to work hard to have that, and I will do my
best to ensure we do have it.
Senator Cruz. One final question. In the last eight years,
the Department of Justice's Solicitor General's Office has
also, I believe, been unfortunately politicized. And it has
sustained an unprecedented number of unanimous losses before
the U.S. Supreme Court.
Indeed, President Obama's Justice Department won less than
half of its total cases before the Supreme Court, which is the
lowest Presidential win rate since Harry Truman. The average
historically for the last 50 years has been about 70 percent.
Numerous of those cases were unanimous with, indeed, both
Obama's Supreme Court appointees voting against the lawless
positions of this Justice Department, including their assertion
that the Government has the authority to supervise and direct
the appointment, the hiring, and firing of clergy in the
church.
What will you do as Attorney General to ensure the
integrity of the Office of Solicitor General, that it is
faithful to the law and not advancing extreme political
positions like the Obama Justice Department did that have been
rejected over and over again by the Supreme Court?
Senator Sessions. I think the problem there is a desire to
achieve a result sometimes that overrides their commitment to
the law. In the long run, this country will be stronger if we
adhere to the law, even though somebody might be frustrated in
the short term of not achieving an agenda.
The Solicitor General should not advocate to alter the
meaning of words to advance an agenda. That is an abuse of
office, and I would try to seek to have a Solicitor General who
is faithful to the Constitution, serves under the Constitution,
does not feel it has the power to rise above it and make it say
what it wants it to say.
Senator Cruz. Thank you, Senator Sessions.
Chairman Grassley. Senator Blumenthal goes--I think we have
votes still scheduled for 2:45. It is my idea that we would
continue this, going--like I will go at the end of the first
vote and then vote and come back, and I hope other people will
preside and keep asking questions while the two votes are going
on so we can finish at a reasonable time today.
[Exchange aside.] Oh, that is right. Did we get a decision?
You can stay here during that voting.
Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman, and thank you for
conducting this hearing in such a fair-minded and deliberate
way. And I want to join you in thanking Senator Sessions for
his public service over so many years, and his family, who have
shared in the sacrifices that you have made.
I am sure that my colleagues and I appreciate your service
and your friendship. This experience for us is a difficult one,
not only because you are a colleague, but I consider you to be
a friend and someone who is well liked and respected in this
body, understandably. And I know if you were sitting here, you
would be pretty tough on me, maybe tougher than I am going to
be on you. But it is not personal, as you understand, because
we have an obligation to advise and consent, to ask those kinds
of tough questions.
You and I have shared some experiences; both of us have
been United States Attorneys and Attorneys General of our
State. And I want to thank you as well for thanking our law
enforcement community, which is so important to this Nation.
And it makes sacrifices, and those sacrifices often are not
only in time and forgone income, but also in lives. And I join
you in respecting the law enforcement officers who were victims
most recently of gun violence.
I want to begin just by asking you a question which I asked
in a letter. Will you recuse yourself from voting on your own
nomination and the nominations of other Cabinet secretaries?
Senator Sessions. I do not have plans to vote on my
nomination. I have not thoroughly examined all the issues, but
if I think there could be a conflict of interest or a violation
of the ethics rule, then I would comply with the rules.
Senator Blumenthal. I believe it would be a conflict of
interest for you to vote on other Cabinet secretaries, as they
are nominated by the President, who is also your boss. And I
think that--I hope you will consider recusing yourself from
those votes as well, because I think it will set a tone for
what you will do in cases of conflicts of interest.
I want to talk a little bit about conflicts of interest,
because I think that the Attorney General of the United States
has a unique and special role, especially at this point in our
history. He should be a champion, a zealous advocate of rights
and liberties that are increasingly under threat in this
country, and he is not just another Government lawyer or
another Cabinet secretary. He is the Nation's lawyer. And so
any appearance of conflict of interest or compromising
positions because of political involvement I think is a real
danger to the rule of law and respect and credibility of the
rule of law.
I would hope that you would consider appointing special
counsel in cases where there may be a conflict of interest
involving the President. And one of those cases involves
Deutsche Bank. The President of the United States owes Deutsche
Bank several hundreds of millions of dollars. It is currently
under ongoing investigation. Will you appoint an independent
counsel to continue the investigation of Deutsche Bank?
Senator Sessions. Well, Senator Blumenthal, I am not aware
of that case. I have not researched it or even read some of the
public's articles about it. So I am totally uninformed about
the merits, or lack of it, of the case. I do not know that the
President is implicated simply because he has borrowed from a
bank. But I would say that, as I think Senator Lee raised in
his questioning, you do not want to be in a position where
every time an issue comes up, the Attorney General recuses
himself. But at the same time, when serious questions arise,
the Attorney General should recuse himself under the
appropriate circumstances. And I guess that goes with the
appointment of a special counsel, which is a somewhat different
issue.
Senator Blumenthal. Would you----
Senator Sessions. There are a lot of criticisms of that,
but I think it is a useful tool in the appropriate
circumstances.
Senator Blumenthal. Would you agree with me that the
Emoluments Clause applies to the President of the United
States?
Senator Sessions. Well, the Emoluments Clause applies. I
guess the dispute is and the discussion is to what extent does
it apply and how does it apply in concrete situations----
Senator Blumenthal. If there is evidence----
Senator Sessions [continuing]. Which I have not studied.
Senator Blumenthal. If there is evidence that the President
of the United States has violated or may be violating the
Emoluments Clause, will you appoint a special counsel?
Senator Sessions. We would have to examine that. I would
not commit, at this time, to appointing a special counsel when
I am not aware of a precise factual situation that would be in
play.
Senator Blumenthal. If there is a violation by the
President's family of the STOCK Act, which prohibits the use of
private or insider information for personal gain, will you
apply special counsel?
Senator Sessions. Well, we will have to evaluate that if
such a circumstance occurs, and I would do my duty as I believe
I should do it at the time.
Senator Blumenthal. I would suggest that in those cases an
independent counsel is not only advisable but required to avoid
a conflict of interest, and I would hope that you would be
sensitive to those concerns.
Senator Sessions. Well, there are reasonable arguments to
be made for that. I suggested that Attorney General Lynch
should appoint a special counsel in the Clinton matter. I do
not know whether you supported that or not.
Senator Blumenthal. One reason I am asking the question is
that you have advocated a special counsel in other instances
where, in fact, the argument for it was weaker than it would be
in these cases, and I think it would be appropriate. Let me----
Senator Sessions. Well, I will suggest that during the
campaign sometimes we get excited, but as Attorney General, you
have to follow the law, you have to be consistent, and you have
to be honorable in your decisionmaking. And I respect the
question you are raising.
Senator Blumenthal. Let me ask you about another group. I
welcome your condemnation of the Ku Klux Klan. You may be
familiar with a group called ``Operation Rescue,'' and
Operation Rescue endorsed you. In fact, Troy Newman, the head
of Operation Rescue, said, ``We could not be happier about the
selection of Senator Jeff Sessions as the next Attorney
General.''
Operation Rescue has, in fact, advocated ``execution'' of
abortion providers, and as an example of its work, this poster
was circulated widely in the 1990s and early 2000s about a
doctor, George Tiller, who subsequently was murdered. After his
murder, Operation Rescue said that his alleged murderer should
be treated as a political prisoner. Dr. Tiller was murdered in
2009, and I am sure you are familiar with this case. Will you
disavow their endorsement of you?
Senator Sessions. I disavow any activity like that,
absolutely, and a group that would even suggest that is
unacceptable. And I will enforce the laws that make clear that
a person who wants to receive a lawful abortion cannot be
blocked by protesters and disruption of a doctor's practice. I
might not favor that. I am pro-life, as you know, but we have
settled on some laws that are clearly in effect, and as
Attorney General, you can be sure I would follow them.
Senator Blumenthal. You would use the FACE statute, the
Freedom of Access to Clinic Entrances Act, to empower and
mobilize the FBI, the Federal Marshals Service, or the Bureau
of Alcohol, Tobacco, and Firearms to protect clinics if there
were harassment or intimidation?
Senator Sessions. I would use the appropriate Federal
agencies, and I do believe it is in violation of the law to
excessively or improperly hinder even the access to an abortion
clinic.
Senator Blumenthal. Will you rigorously enforce statutes
that prohibit purchase of guns by felons or domestic abusers or
drug addicts and use the statutes that exist right now on the
books to ban those individuals from purchasing guns?
Senator Sessions. Well, Congress has passed those laws.
They remain the bread-and-butter enforcement mechanisms
throughout our country today to enforce gun laws. The first and
foremost goal, I think, of law enforcement would be to identify
persons who are dangerous, who have a tendency or have been
proven to be lawbreakers and been convicted and those who are
caught carrying guns during the commission of a crime. Both of
those require mandatory sentences. As United States Attorney in
Alabama, it was a high priority of mine. I calculated a number
of years we were one of the top--even though a small office--on
a percentage basis we were one of the top prosecutors of those
cases. I think it saves lives, Senator Blumenthal. My judgment,
at least, tells me it can help create a more peaceful
community.
Senator Blumenthal. Will you support laws necessary to
effectively apply those laws, including universal background
checks that are necessary to know whether the purchaser is a
felon or a drug addict or a domestic abuser?
Senator Sessions. Well, I believe in background check laws,
and many of them are appropriate. But in every instance--there
are some instances when it is not practical, like, say, for
example, somebody inherited a gun from their grandfather. Those
transactions I am not sure should require that kind of
universal background check.
Chairman Grassley. For the first time I call on a new
Member of this Committee, Senator Crapo. Welcome to the
Committee, and you may proceed.
Senator Crapo. Thank you, Mr. Chairman, and I too want to
thank you for the way you are handling this hearing, and I
appreciate your service here in the Committee.
Senator Sessions, I also want to join those who have
congratulated you on your nomination to be the Attorney General
of the United States. I am one of those who has had the
opportunity to work with you for years and know you very well.
I consider you well qualified and look forward to your service
as Attorney General of the United States if you are confirmed,
and I expect you will be. I know you to be a man of your word.
I know that you are committed to the Constitution of the United
States of America, and you are committed to enforcing the law
of this country, as you have said multiple times here in this
Committee. So I thank you for that.
I want to go in my questions into just a couple of other
areas beyond just the notion of the enforcement of the law but
the manner in which the Department of Justice enforces the law.
Three basic areas: one, the abuse of the power or
discriminatory enforcement of the law; two, regulatory
overreach that we are seeing across this country and what role
the Department of Justice plays in trying to deal with that;
and then, finally, cooperation with the States. We live in a
Union of 50 States, and under our Constitution there are
appropriate roles for the Federal Government and the States,
and the Department of Justice has a very powerful influence on
that. So if I could get into those three areas.
The first one I am just going to use as an example of the
kind of abusive use of power that I hope you will help stop and
prevent from continuing to happen. This example is one that was
already referenced by Senator Cruz, Operation Choke Point.
Operation Choke Point, for those that are not familiar with it,
the only appropriate thing about it, in my opinion, is its
name. It was a program designed by the Department of Justice to
help choke financing away from businesses and industries that
were politically unacceptable or, for whatever reason,
unacceptable to the administration.
The Justice Department, working with, and I think perhaps
even pressuring, some of our financial regulatory agencies,
created this program to give additional scrutiny--indeed such
aggressive scrutiny that it pressured them out of their access
to financing--to certain industries. I do not know how these
industries got on the list, but I will just read you several
that are on the list: ammunition sales, coin dealers, firearms
sales, installment loans, tobacco sales. This list is a list of
30 that was put out by the FDIC. When they actually realized
they should not have put the list out, they quickly took it
back. And the FDIC says that they are not pursuing this program
anymore. But when we tried to de-fund it earlier, the
administration fought aggressively to make sure we did not get
the votes to de-fund it.
This program is one where the justification is, well, the
businesses who operate in these industries have not done
anything wrong. But these are industries that might do things
wrong more than other industries, and, therefore, we are going
to pressure people out of these industries. It reminds me of a
2002 movie called ``Minority Report.'' It was a Tom Cruise
movie, and that was one about an advanced police force in the
future that had determined or developed the ability to know if
you were going to commit a crime before you commit the crime.
And then their job was to go arrest you. It was really good at
stopping crime because they arrest you before you even commit
it. And then one of them came up on the list, and that is the
story of that movie.
My point is we cannot really tell for sure whether
Operation Choke Point is still operating, although we still
have people in these industries who cannot get financing. If
that kind of thing is going on in the Department of Justice,
will you assure that it ends?
Senator Sessions. I will. At least as you have framed this
issue and as I understand the issue, from what little I know
about it, but, fundamentally, a lawful business should not be
attacked by having other lawful businesses pressured not to do
business with the first business. That to me would be hard to
justify. I guess maybe they have got some arguments that would
be worth listening to, but, fundamentally, that seems to me--
Senator Crapo, you are a great lawyer, but it seems to me that
goes beyond what would be legitimate in a great economy like
ours.
Senator Crapo. Well, I would hope the Department of Justice
would not be a partner with any of our Federal agencies in this
kind of conduct.
Another one which I will throw out as an example is the
National Instant Criminal Background Checklist, which is now
being utilized by the Veterans Administration and by the Social
Security Administration to put people's names on the list so
that they can be denied access to owning or purchasing a
firearm. And the way they put their name on the list is to say
that they are mentally deficient. If they need a little help on
their Social Security benefits, if they are a veteran who put
their life on the line for us and goes to war and receives a
head injury and so they need a little bit of assistance, then
they get their name often put on the list.
I know that these are not the agencies that you supervise,
but I know the Department of Justice supervises the NICS list.
And I would just encourage your help, whether it is here or
anywhere else in our Government. As we see agencies using their
power to achieve political purposes or some other
discriminatory purpose of the administration, I would hope you
would stand solidly against it.
Senator Sessions. Well, thank you, Senator Crapo. I know
you have worked on that issue. So I would be sympathetic and be
willing to receive any information that I know you have
gathered to form your views about it.
Senator Crapo. All right. I appreciate that.
Let me move on to the question of regulatory overreach. I
will just use one example there. I am one who believes that
today we have gone--we talked a lot in this hearing today about
the rule of law. In America, statutes are passed by Congress
and signed into law by a willing President. But now we have
multiple agencies that are doing rulemakings that, in my
opinion, are going far beyond the legal authority of the laws
under which they operate. I will use one example: the Waters of
the United States rule that has been implemented or is seeking
to be implemented by the EPA and the Army Corps of Engineers.
In my opinion, that is totally unfounded in law, and often the
Department of Justice is partnered up with these agencies as
they try to defend their activities in court. And I am not sure
I actually know the proper role there.
Does the Department of Justice simply have to litigate on
behalf of these agencies? Or does it have the ability to advise
these agencies that they are pursuing activities beyond the
bounds of the law?
Senator Sessions. It can be that an agency would ask an
opinion of the Office of Legal Counsel, the Department of
Justice, as to whether their interpretation is sound or not.
That opinion, until reversed at some point, stands for the
entire Government. But, basically, these agencies oftentimes
just set about their own agendas without asking for an opinion,
and often they are narrow-minded or they are focused only on
what they feel are the goals of their agency and do not give
sufficient respect to the rule of law and the propriety of what
they are doing. In particular, did the Congress really intend
this? Did this law really cover this? Or is it just something
you want to accomplish and you are twisting the law to justify
your actions? Those are the kinds of things that we do need to
guard against.
Senator Crapo. Well, I appreciate that, and I hope that
under your leadership we will have a Justice Department that
will give strong advice where it can and have strong influence
where it can across the United States system, across our
agencies in this country, to help encourage and advise that
they stay within the bounds of the law.
The last thing, and I will just finish with this--and you
can give a quick answer, I am running out of time here--and
that is, cooperation with the States. As I said earlier, our
system of Government is comprised of 50 States in a Union under
a Constitution that establishes a Federal Government. And you
and I both know well that the Tenth Amendment says that those
rights and powers that are not specifically granted to the
Federal Government in the Constitution are reserved to the
States and to the people, respectively.
Many of our States feel that that proper respect for their
sovereignty is being abused, again, by Federal agencies, not
just the Department of Justice, but the Justice Department
often gets involved in this through providing the legal
services that it does to our agencies. And, you know, I could
go through a ton of more examples and lists of litigation that
is ongoing right now with my State and other States around the
country where, if we simply had a better level of respect for
the role of States in this Union and under our Constitution, we
could work out a lot more of these issues rather than having
the heavy hand of the Federal litigation system come to play
into forcing compliance by States.
I will not go into any specific details, but would just ask
your feelings about that importance of respecting the role of
States in this country.
Senator Sessions. There is no general Federal crime. So,
many things like larceny and even murder, when there is no
civil rights connection, have traditionally been totally the
responsibility of the States. As a young prosecutor in the
1970s, I remember almost all the cases had an interstate
commerce nexus. It was not the theft of an automobile that you
prosecuted. It was interstate transportation of a stolen
vehicle. So a lot of that is just--now we have forgotten that
distinction, that limitation on Federal power.
Senator Crapo. We have. And a lot of what I am talking
about happens in the Environment and Natural Resource Division
or in others. There is a lot of litigation out there. I would
just encourage you--I see I am out of time.
Chairman Grassley. Let me make a suggestion before I
introduce Senator Hirono, and she is welcomed back to the
Committee. She has been off 2 years. To make efficient use of
our time, when she is done, it would be Senator Kennedy's turn.
But you probably have to go vote, so if there is somebody back
here that can start the second round, do it, and then we will
call on Senator Kennedy to finish the first round.
Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. It is good to be
back on this Committee. And aloha to you, Senator Sessions.
Senator Sessions. Aloha.
Senator Hirono. I will do my best to be nice to you.
[Laughter.]
Senator Sessions. Well, that will not be hard for you.
Senator Hirono. Thank you very much. I know that the
Attorney General has broad prosecutorial discretion. You noted
in some of your responses to questions from Senator Durbin
around the issue of what would happen to the 800,000 DACA-
registered people if the President-elect rescinds that program,
and you indicated that I think at that point the AG's office
has only so many resources and that may not be a high priority
for you. But you indicated that is why we needed immigration
reform.
So my series of questions will center around how you would
exercise your prosecutorial discretion, which I think you would
acknowledge is wide as Attorney General, would you not?
Senator Sessions. In many cases, you do--the Federal
prosecutors set discretionary limits, but you have to be
careful that it does not exceed a reasonable judgment about
what a discretion should be.
Senator Hirono. I agree. It is not totally unfettered, but
wide prosecutorial discretion, so my questions will center
around how you would exercise prosecutorial discretion with
regard to some specific issues. You probably know, Senator
Sessions, that I am an immigrant, and you indicated in one
response that you would want immigration reform to center
around skills-based immigration reform. And if that were the
case, my mother who brought me to this country to escape an
abusive marriage would not have been able to come to this
country, and she acquired her skills later. But I just want to
let you know that this is one of the reasons that issues
relating to immigration are very important not just to me but
to millions of people in this country. And I have heard from
them. I have heard from immigrants in this country, LGBT
Americans, women, and religious minorities who are terrified
that they will have no place in President-elect Trump's vision
of America. And based on what I have heard, since the election,
I am deeply concerned that their fears are well founded. I am
hoping that you can address some of these concerns today.
I mentioned the exercise of prosecutorial discretion. When
you came to see me, we did talk about whether or not you would
support a ban on Muslims coming to this country based on the
fact that they were Muslims, and you said you would not support
that. But you also indicated that you would support basically
what would be considered enhanced vetting of people with
extreme views. What would characterize an extreme view to you?
And how would you go about ferreting out people with extreme
views? And there are millions of people legally coming into our
country.
And also a related question: The fact that you would
consider vetting of people with extreme views to be a proper
use of our governmental authority, there must be a connection
in your mind that people with extreme views, which I hope you
will describe what you mean by, will do something that would
compromise the safety of Americans? Could you respond to my
series of questions relating to extreme views?
Senator Sessions. Well, I do think, first of all, the
vetting process is in the hands of the State department, the
consular offices, and those offices that are meeting people
abroad and evaluating them for admission to the United States.
So the Department of Justice really does not dictate that, as
long as it is within constitutional order.
I think the approach that is preferable is the approach
that would be based on areas where we have an unusually high
risk of terrorists coming in, people that could be clearly
violent criminals, and those certainly justify higher intensity
of vetting. I think that maybe responds to your question. But,
again, the ultimate decision about that would be done through
the State Department and by the President.
Senator Hirono. I am sure they would ask for the Attorney
General's opinion as to the limits of the Constitution in
requiring these kinds of questions to be asked of people who
come to our country. You did indicate that one's religious
views would be a factor in determining whether somebody has
extreme views.
Let me turn to----
Senator Sessions. If their religious views----
Senator Hirono. Not in and of itself.
Senator Sessions [continuing]. Encompass extremism, if
their interpretation of their religious views encompasses
dangerous doctrines and terrorist attacks, I think they should
certainly deserve more careful scrutiny than someone whose
religious views are less problematic.
Senator Hirono. Yes, Senator Sessions, you did say that
one's religious views would be a factor in determining whether
one has extreme views that would not enable them to come to our
country.
Let me turn to the question of abortion. On Roe v. Wade,
you did say, ``I firmly believe that Roe v. Wade and its
descendants represent one of the worst, colossally erroneous
Supreme Court decisions of all time,'' and it was an ``activist
decision.'' My question is: Do you still hold that view? I
believe you answered yes to someone who asked you that question
previously, that you believe that Roe v. Wade was a bad
decision.
Senator Sessions. Well, I----
Senator Hirono. Do you still believe that?
Senator Sessions. Well, I guess I have said that before. I
am a pro-life----
Senator Hirono. Thank you.
Senator Sessions [continuing]. Advocate. But,
fundamentally, the problem as I see it with Roe v. Wade is that
it denies the people the right to make laws that they might
feel appropriate. Did the Supreme Court have that power? I
concluded they did not because the Constitution did not answer
that question, but----
Senator Hirono. Senator Sessions, I----
Senator Sessions [continuing]. I respect people----
Senator Hirono. I hate to interrupt you, but I have less
than 2 minutes, so I do not want to get into the substance of
Roe v. Wade. I realize you still believe that that was a bad
decision, although it was based on constitutional privacy
protections. So we can expect the makeup of the Supreme Court
to change, and we can very well end up with a Supreme Court
that will be very open to overturning Roe v. Wade. And should
you be the Attorney General, would you direct or advise your
Solicitor General to weigh in before that Supreme Court which
has an opportunity to overturn Roe v. Wade? And would your
Solicitor General go in and weigh in to repeal--or to overturn,
I should say, Roe v. Wade?
Senator Sessions. Well, Roe v. Wade is firmly ensconced as
the law of the land, and I do not know if we would see a change
in that. You are asking a hypothetical question. Those cases
seldom come up on such a clear issue. They come up at the
margins. I just would not be able to predict what well-
researched, thoughtful response would be to matters that could
happen in the future.
Senator Hirono. I think most of us know that the next
opportunity for the Supreme Court to weigh in on whether or not
to change Roe v. Wade would be a very close decision and likely
possibly a 5-4 decision, and that it is not just a hypothetical
but it is a real concern to a lot of people.
Let me turn to the Voting Rights Act. While the Supreme
Court did eliminate parts of the Voting Rights Act, it still
retains Section 2, which prohibits States from enacting laws
that would have a discriminatory impact. The Attorney General's
office was a party to challenging two States' laws--I believe
it was Texas and there was another State--that the Supreme
Court ultimately agreed with the Attorney General's position
that these laws violated the Voting Rights Act Section 2. Would
you, should you become the Attorney General, just as vigorously
prosecute those kinds of State laws that have a discriminatory
voting impact?
Senator Sessions. Well, this administration's Attorney
General has intervened when it felt it was appropriate and not
intervened when it did not feel it was appropriate. So I think
my responsibility would be to ensure that there are no
discriminatory problems regarding the Voting Rights Act in a
State. If there is, if it violates the Voting Rights Act or the
Constitution, I think the Attorney General may well have a
responsibility and a duty to intervene. You cannot allow
improper erosion of the right of Americans to vote.
Senator Hirono. Well, we know that since the Supreme
Court's decision that did away with major parts of the Voting
Rights Act that numerous States, perhaps 13 States, have
already enacted laws that could be deemed contrary to the
Voting Rights Act. So I would hope that as Attorney General you
would vigorously review those kinds of laws and to prosecute
and to seek to overturn those State laws, just as your
predecessors have done.
I want to turn to VAWA. I know that you voted against the
most recent iteration of VAWA because you had concerns about
how non-Indians would be prosecuted under Tribal law. And you
indicated that, yes, you do acknowledge that non-Indians do go
on Tribal lands, commit crimes, and that these kinds of crimes
should be prosecuted at the Federal level. And I would expect
that should you become Attorney General that you will do that.
But at the same time, my question is: Would you then seek
to overturn that part of VAWA that allows the Tribal courts to
proceed?
Senator Sessions. That would be a strictly legal decision.
We should give respect to the laws of Congress that have been
passed. As a Member of Congress, I was uneasy with it, did not
think it was a good approach, and I believe eight out of nine
Republicans on the Committee shared that concern and did vote
against it.
As I noted earlier, I voted for the Violence Against Women
Act in 2000, 2010, and I voted for the Grassley version of the
Violence Against Women Act this past time, even though I did
vote against the version that became law.
Senator Hirono. So as Attorney General, you would not do
anything to challenge that part of VAWA that allows for Tribal
courts to proceed, right?
Senator Sessions. Well, I would have to make a legal
decision on that. I am not able to do so today.
Senator Hirono. Thank you, Mr. Chairman.
Senator Lee [presiding]. Thank you.
Senator Sessions, as you are aware, in many instances,
Congress, when enacting a law, will choose to issue a broad
sort of mandate, a broad aspirational statement, leaving the
details of the actual lawmaking process to a regulatory system
that then has to follow certain procedures in turn to
effectively make laws. We call those regulations, typically,
and sometimes an executive branch agency will go a step further
and, outside the process that has to be followed when
promulgating a new regulation, they will just issue a guidance
document--a guidance document outlining what the agency feels
is the status of the law in this area. Guidance documents have
received a lot of criticism from members of the public who
point out that they are bereft of any kind of safeguard and
that they have not gone through a legislative process; they
have not even gone through any type of review process that
would normally accompany the regulatory rulemaking cycle.
As a matter of policymaking, will the Department of
Justice, under your leadership, assuming you are confirmed, use
guidance documents as a matter of course in promulgating legal
interpretations?
Senator Sessions. Senator Lee, a guidance document that is
clearly within the intent of Congress and the law's plain words
can be beneficial. I think they are normally issued by the
agency or department that administers it, like, for example,
the Department of Health and Human Services, Homeland Security,
Department of Commerce. Sometimes, they ask the Office of Legal
Counsel for their opinion about what the proper interpretation
of a statute is. But I do think you raise a valid concern. A
guidance document cannot amount to an amendment of a law.
Bureaucrats do not have--that is a pejorative term, but
department and agency attorneys and members do not have the
ability to rewrite the law to make it say what they would like
it to say.
If we get away from that principle, we erode the respect
for law and the whole constitutional structure where Congress
makes the laws, not the executive branch.
Senator Lee. What about in the context of litigation, where
you are litigating a case involving one of these guidance
documents, and you are representing the Federal agency in
question? Will the Department, under your leadership, assuming
you are confirmed to this position, ask courts to defer to
nonbinding guidance documents in the same way that courts are
routinely asked to defer to regulations?
Senator Sessions. Well, that is a good question from a good
lawyer, I have to say. In other words, the question you are
suggesting is, established law of the land or the courts is
that they give certain deference to well-established, properly
established regulations issued pursuant to statute. But what if
a Secretary just issues a guidance document? Is the court
entitled to give full deference to that? First of all, I do not
know. I have not researched it, but I do think that that would
be a pretty bold step to go that far, and would be dubious
about it.
Senator Lee. Thank you. As you know, from time to time, the
Department of Justice receives subpoenas, or one of the
entities being represented by the Department of Justice might
receive requests from Members of Congress, from Committees in
Congress, including some Committees that have the power to
issue subpoenas, in other instances, just letters or other
types of requests from Congress for documents.
I suspect that there may be a number of outstanding
requests of this nature that are left pending at the end of
this Administration, requests that were issued during the 114th
Congress, the Congress previous to this one, but that will
still need to be handled within the Department after you are
confirmed, assuming you are confirmed.
Will you commit to reviewing any of those that remain
pending, and doing so in a manner that is timely and showing
the respect for a coordinate branch of Government?
Senator Sessions. Senator Lee, if you would, repeat for me
what kind of request?
Senator Lee. Pending requests for documents that might be
left over from the previous Congress.
Senator Sessions. Requests for documents in what kind of
proceeding?
Senator Lee. Requests for documents either from the
Department, itself, or in matters where the Department is
involved representing an entity within the Federal Government.
I just want to make sure that those do not get left behind,
that they do not get ignored simply because they have not been
dealt with by the previous administration.
Senator Sessions. Well, I do think they are entitled to be
evaluated and proper requests, I would assume, would continue
to be valid. We would try to follow whatever the law requires
in that regard.
Senator Lee. Thank you. I appreciate that.
I want to talk about the attorney-client privilege by
members of the executive branch, by executive branch officials.
In a 1998 opinion, the U.S. Court of Appeals for the D.C.
Circuit reached a conclusion that executive branch officials do
not enjoy the same common law attorney-client privilege as
ordinary lawyers--lawyers who are not executive branch
officials.
Justice Scalia, while he was serving as the Assistant
Attorney General over the Office of Legal Counsel, authored a
legal opinion stating that executive branch officials do not
enjoy the privilege unless they are dispensing with personal
legal advice. Instead, in that view, executive branch officials
need to assert the executive privilege, rather than the
traditional common law attorney-client privilege.
And yet, executive branch agencies routinely can be
observed asserting the attorney-client privilege, instead of
the--in much the same way they would in the traditional
context, rather than just invoking the executive privilege.
Would you agree with that? That that might raise some
questions?
Senator Sessions. Senator Lee, I have not studied that
opinion of Justice Scalia. I would be reluctant to comment,
except I would say that it is probably good for the American
Republic that Department and Agency officials seek legal advice
before they act. In the long run, that is probably better.
I think having some expectation that they can have a candid
comment with their attorney is of value. I had not thought
about, and never given study to, the question of whether it
should be under executive privilege or attorney-client.
Although, I can imagine the difficulties.
Senator Lee. Yes. I appreciate your candor on that point.
It gives me some comfort knowing that you are aware of the
situation and you will look at those.
I would like to talk about some antitrust issues in the
moments I have remaining, and then perhaps we will get back to
these during a subsequent round.
Antitrust regulators, when they are reviewing potentially
competitive harms that might arise as a result of a merger,
will sometimes impose conditions on the merger moving forward,
saying unless you do A, B, and C, this merger cannot go
forward. But if you do A, B, and C in order to address whatever
concerns we, the antitrust regulators have, then the merger can
be consummated.
It is my view that there is a temptation for antitrust
regulators sometimes to impose conditions that do not involve
anticompetitive concerns, and that that raises some red flags
because the role of the antitrust regulator is to look out for
anticompetitive concerns arising out of the merger. That is
where their inquiry ought to be focused, and that is where
their conditions ought to be focused. Do you disagree with
that?
Senator Sessions. I would agree with that. As you
formulated, I believe it would be wrong to further some other
separate, discrete agenda that is not reasonably connected to
the merger itself. So I think we should ensure that we have the
highest integrity in antitrust adjudications because they can
have great impact. The law is not crystal clear about what is
lawful, and what is not lawful, and what the Antitrust Division
is required to do. It leaves dangers, if not politicization of
it--it remains--dangers of policy agendas getting embroiled in
it. So it is an important division. It requires great
integrity, and ability, I believe, in the leadership at the
Antitrust Division.
Senator Lee. Thank you.
Senator Leahy.
Senator Leahy. Thank you. Thank you, Mr. Chairman.
I listened to Senator Lee asking these questions. It
occurred to me that you are one of a very, very, very small
minority of Members who opposed the USA Freedom Act that I
drafted with Senator Lee. It passed with a super-majority in
both the House and the Senate.
Even though you voted against it--and this, of course,
stopped the bulk collection by NSA that both Senator Lee and I
opposed--do you agree the executive branch has to follow the
law, that they cannot reinstate the bulk collection of
America's phone records without amending Federal statutes?
Senator Sessions. Senator Leahy, that appears to be so, and
I cannot swear that that is absolutely, totally always true,
but it appears to be so.
Senator Leahy. Wait a minute. We either passed the law or
we did not pass the law. A super-majority voted for the Lee-
Leahy law. The President signed it into law. You voted against
it. Will you uphold the law?
Senator Sessions. I will follow the law, yes, sir.
Senator Leahy. And will you commit that you are not going
to allow the NSA to engage in bulk collection of Americans'
records in violation of the USA Freedom Act based on a theory
that somehow whoever is President has the power to disregard
the statute?
Senator Sessions. I do not believe that the statute can be
disregarded, and it should be followed.
Senator Leahy. Thank you. I appreciate that.
We had a dust-up in the press, as you recall, when Mr.
Trump bragged about how he had grabbed women and so on, shortly
after the tape came out, and I realize an explanation here--you
said, ``I do not characterize that as sexual assault.'' But
then you said later, ``The Weekly Standard's characterization
of comments I made following Sunday's presidential debate is
completely inaccurate. My hesitation was based solely on
confusion of the content of the 2005 tape. A hypothetical
proposed by the reporter which was asked in a chaotic post-
debate environment. Of course, it is crystal-clear that assault
is unacceptable. I would never intentionally suggest
otherwise.''
Especially what you said--after the confusion on your first
comment. Is that correct?
Senator Sessions. I believe that is correct.
Senator Leahy. Thank you.
Is grabbing a woman by her genitals without consent--is
that sexual assault?
Senator Sessions. Clearly, it would be.
Senator Leahy. Thank you.
If a sitting President or any other high Federal official
was accused of committing what the President-elect described in
a context in which it could be federally prosecuted, would you
be able to prosecute and investigate?
Senator Sessions. The President is subject to certain
lawful restrictions, and they would be required to be applied
by the appropriate law enforcement official when appropriate,
yes.
Senator Leahy. And the conduct described, based on the
description, would be sexual assault?
Senator Sessions. Well, the confusion about the question
was a hypothetical question, and it related to what was said on
the tape. I did not remember at the time whether this was
suggested to be an unaccepted, unwanted----
Senator Leahy. Let us----
Senator Sessions. That would certainly meet the definition.
If that is what the tape said, then that would be----
Senator Leahy. My question is very simple: Is grabbing a
woman by her genitals without consent, is that sexual assault?
Senator Sessions. Yes.
Senator Leahy. Thank you.
Now you were asked earlier about having called the NAACP
and ACLU un-American. You said that was before you were a
Senator. But as a Senator you have continued to be hostile to
them. You have criticized nominees for having what you call
``ACLU DNA.''
Now, I remember when Republicans led the Justice
Department, its Inspector General found the Bush administration
engaged in unlawful politicized hiring practices. That is the
Republican administration's own Inspector General. It said the
Ashcroft Justice Department used a litmus test whether
applicants would be sufficiently conservative. If they were
ever in the ACLU, they could not have a job.
You said in a radio interview, ``Justice has to be saved
from secular, progressive liberals.''
All right. Let me ask you a couple simple questions. Are an
individual's religious beliefs relevant to their employment at
the Justice Department?
Senator Sessions. Not unless it is such that they cannot
perform their duties in an honorable way, consistent with the
law.
Senator Leahy. What would be an example of that?
Senator Sessions. Well, if an individual so strongly
believed that abortion should be unlawful that they used their
position to block constitutionally approved abortions, I think
that would make them not subject to being employed in the
Department of Justice.
Senator Leahy. Are you going to have a litmus test at the
Department of Justice for people who worked at civil rights
organizations?
Senator Sessions. No.
Senator Leahy. Senator Graham mentioned you have long been
a champion of State's rights. Certainly you and I have had
enough discussions on that, and I realize those are deeply held
beliefs. But States have also voted on the issue of marijuana
and regulation. I believe your own State of Alabama permits the
use of a derivative of marijuana known as CBD oil, legal in
Alabama, illegal under Federal law.
If you are confirmed as the Nation's chief law enforcement
official, and you know that we have very, very limited Federal
resources--in fact, we spend about a third of our budget now
just to keep the prisons open because of mandatory minimums and
whatnot.
Would you use our Federal resources to investigate and
prosecute sick people who are using marijuana in accordance
with their State laws, but might violate Federal law?
Senator Sessions. Well, I will not commit to never
enforcing Federal law, Senator Leahy, but absolutely, it is a
problem of resources for the Federal Government.
The Department of Justice under Lynch and Holder set forth
some policies that they thought were appropriate to define what
cases should be prosecuted in States that have legalized, at
least in some fashion, some parts of marijuana----
Senator Leahy. Do you agree with those guidelines?
Senator Sessions. I think some of them are truly valuable
in evaluating cases, but fundamentally, the criticism I think
that was legitimate is that they may not have been followed.
Using good judgment about how to handle these cases will be a
responsibility of mine. I know it will not be an easy decision,
but I will try to do my duty in a fair and just way.
Senator Leahy. The only reason I mention it, you have some
very strong views. You even mandated the death penalty for
anyone convicted of a second drug trafficking offense,
including marijuana, even though mandatory death penalties are,
of course, unconstitutional.
Senator Sessions. Well, I am not sure under what
circumstances I said that, but I do not think that sounds like
something I would normally say. I will be glad to look at it,
but----
Senator Leahy. Would you say that is not your view today?
Senator Sessions. It is not my view today.
Senator Leahy. Thank you very much.
Senator Lee. I perked up when he started talking about
federalism. Of course, everything Senator Leahy said was
interesting, but the federalism stuff is particularly
interesting.
Senator Leahy. I am praising your legislation.
Senator Lee. Yes, exactly. I appreciated that, too. That
was great.
Federalism is an issue that is near and dear to many of us,
and I know it is important to you. The notion that our Federal
Government possesses powers that James Madison described as few
and defined, and those reserved to the States are numerous and
indefinite.
We were supposed to be a different legislative body. Our
Federal Government was always intended as a limited-purpose
national government, not a general-purpose national government,
one possessing complete police powers. We have seen a slow but
steady drift over the last 80 years away from this principle of
federalism, such that powers exercised at the Federal level
today could no longer be described as few and defined, but more
appropriately described as numerous and indefinite.
In light of the Supremacy Clause in the Constitution, any
powers we do exercise through the Federal Government are, by
definition, replaced from the States. In other words, when our
action conflicts with State action, it is our action that
prevails in light of the Supremacy Clause. It is one of the
reasons why federalism needs to be looked out for so carefully.
One of the reasons why a view that I think both you and I share
is that U.S. Government officials in all three branches of
government, whether they wear a black robe or not, are expected
when they swear an oath to uphold the Constitution, to look out
for basic structural protections in the Constitution like
federalism so that we do not have an excessive accumulation of
power in the hands of the few.
The Founding Fathers set up this system in which we have
these structural protections. We have the vertical protection
we call federalism, which we just described, and the horizontal
protection we call separation of powers. It says, within the
Federal Government in order to protect us against the risks
associated with the excessive accumulation of power in the
hands of few, we are going to have one branch that makes the
laws, another branch that enforces the laws, and a third branch
that interprets the laws.
As long as we keep each branch within the same lane, the
people are protected from what happens when one person, or a
group of people, gets too powerful. But over the last 80 years,
just as we have seen a deterioration of federalism, we have
also seen a deterioration of separation of powers.
You have an interesting set of circumstances with our laws,
our controlled substances laws concerning marijuana, in that
for the first time in a very long time, you have seen some
attention paid to federalism, but in the limited area
associated with marijuana. In other words, there are Federal
laws prohibiting the use of marijuana, the sale of marijuana,
the production of marijuana that apply, regardless of whether a
State has independently criminal-
ized that drug as every State, until recently, had.
Then you had some States coming along and decriminalizing
it, sometimes in the medical context, other times in a broader
context. The response by the Department of Justice during the
Obama administration has been interesting, and it has been
different than it has in other areas. They have been slow to
recognize principles of federalism elsewhere. They chose to
recognize it here.
My question to you is, did the way they responded to that
federalism concern run afoul of separation of powers? Did the
Department's approach to this issue that they identified as a
federalism issue contravene the understanding that we are the
lawmaking body, the executive branch is the law-enforcing body?
Senator Sessions. Well, I am not sure I fully understand
the point of your question, but--you are talking about
separation of powers within the Federal Government?
Senator Lee. Yes.
Senator Sessions. The three branches of Federal Government.
Senator Lee. Yes.
Senator Sessions. And how does that implicate the marijuana
laws?
Senator Lee. Yes. Are there separation of powers concerns
arising out of the Department of Justice's current approach to
State marijuana laws?
Senator Sessions. Well, I think one obvious concern is that
the United States Congress has made the possession of marijuana
in every State and distribution of it an illegal act. If that
is something that is not desired any longer, Congress should
pass a law to change the rule. It is not so much the Attorney
General's job to decide what laws to enforce. We should do our
job and enforce laws effectively as we are able.
Senator Lee. Thank you. I would like to get back to
antitrust issues for a moment. In 2010, you cosponsored some
legislation that extended the Antitrust Division's leniency
program and extended it all the way out to 2020. So it was a
10-year extension at the time, you helped move that through.
The legislation provided that members of a cartel could receive
reduced penalties if they reported cartel activity to the
Department and cooperated with any investigation the Department
had in connection with that antitrust cartel.
Now the Antitrust Division within the Department of Justice
considers this tool ``its most important investigative tool for
detecting cartel activity,'' because it creates an incentive
for cartel members to self-report, to come forward, and to
identify things that the Antitrust Division needs to be aware
of. So I applaud your leadership in this area because it has
been very helpful to the enforcement of our antitrust laws of
the Department.
I have two questions related to this program looking
forward: First, given its importance, do you think the program
should be made permanent; and second, are you open to any other
ideas that might strengthen the program?
Senator Sessions. Senator Lee, I would not commit to you
that I have formed an opinion on that. These are very complex
areas of the law. I am not a Member of the Antitrust
Subcommittee as a number of Members of our Committee are and
have achieved levels of expertise, like Senator Klobuchar, and
you, and others.
I would just have to commit to you that I am open to
hearing the views of this Congress and that Subcommittee, and
would try to work with you, but I do understand that antitrust
policy is an important issue for America, and we need to get it
right, and that would be my goal.
Senator Lee. Thank you. One important question sometimes
arises in the antitrust context. It relates to what role the
Department of Justice should play in communicating with foreign
authorities, authorities in other countries that deal with
competition laws, deal with things analogous to our antitrust
laws in this country. The Department of Justice has typically
played a leading role, but in recent years it has also allowed
the Federal Trade Commission, the FTC, to become heavily
involved.
To my mind, this raises some potential concerns because the
FTC is an independent agency as compared to the Department of
Justice, of course, which is headed by a presidential appointee
who, with Senate confirmation, serves at the pleasure of the
President.
Do you have any opinion on this point, that the Department
of Justice, which is more accountable to the President, and
therefore, has some connection to the people, should be more
actively involved in communicating with foreign antitrust or
competition authorities?
Senator Sessions. I really would not attempt to comment
today on that. I would be glad to hear your thoughts on it. I
think it can be problematic if U.S. officials encouraged
foreign officials to join with them to--against an action of a
private company. They put--could put so much excessive pressure
on them that they are not able to resist, when they may have a
lawful basis to resist. But--so these are big issues and you
have to be sensitive to the power that the Department of
Justice has, the Antitrust Division has, and make sure that
there is a principled policy and lawful basis for what is done.
Senator Lee. Thank you, Senator Sessions. I see our
Chairman is back. Oh, he is not back.
Senator Feinstein.
Senator Feinstein. It is my understanding that Senator
Durbin has not yet had his second round, and so I would like to
defer to him.
Chairman Grassley. Senator--oh, I am sorry.
Senator Feinstein. I am going to defer to Senator Durbin
because he somehow got missed.
Senator Durbin. Thank you very much. I want to thank the
Chairman and my friend Senator Feinstein.
This morning, before the Senate Intelligence Committee,
Director Comey of the FBI was testifying on the question of
investigating the Russian involvement in this last election and
he was asked if there was any ongoing investigation about
contacts between Moscow, the Russians, and any Presidential
campaigns, and he refused to answer, said he was not going to
discuss any ongoing investigations publicly.
I would like to ask you a question related to recusal. You
stated earlier today that you had made the decision--and you
have not given us a real background on it--but made the
decision that you would recuse yourself from any prosecutions
involving Hillary Clinton or the Clinton campaign and emails.
Then I understand--I was not present--but Senator
Blumenthal asked you for some other hypotheticals as to whether
you would recuse yourself on an emolument question or some
other things, and you said you would take it on a case-by-case
basis.
What if, hypothetical, same as Hillary Clinton, we are
dealing with an investigation that involves the Trump campaign,
or anyone in the Trump campaign. Would you recuse yourself as
Attorney General from that prosecution?
Senator Sessions. Well, my response to the--to my recusal
issue was because I had made public comments about it that
could be construed as having an opinion on the final judgment
that would have to be rendered. I do not think I made any
comments on this issue that go to that, but I would review it
and try to do the right thing as to whether or not it should
stay within the jurisdiction of the Attorney General or not.
Senator Durbin. It would strike me that this is an obvious
case for a special prosecutor if it involves a campaign leading
to a candidate who selected you as the Attorney General. Would
not an abundance of caution suggest that you would not want any
questions raised about your integrity in that type of
prosecution?
Senator Sessions. Senator Durbin, I think it would be
incumbent upon anybody who is holding the office of Attorney
General at that time to carefully think his way through that to
seek the advice and to follow the normal or appropriate special
prosecutor standards, and so I would intend to do that, but I
have not expressed an opinion on the merits of those issues, to
my knowledge.
Senator Durbin. Senator Sessions, there has been a lot of
controversy about refugees. The United States had a dubious
record on refugees during World War II, refusing to accept
Jewish refugees who were then, in some cases, returned to
Europe and the Holocaust, and perished. After World War II, a
new policy emerged in the United States, bipartisan policy, and
the United States became more open--in some cases generous--to
accepting refugees.
The numbers--I have heard various numbers, but 650,000
Cuban refugees who came to the United States during the
ascendancy of the Castro regime; 125,000 or more Soviet Jews
accepted in the United States, spared from persecution in the
Soviet Union; 400,000 from Eastern Europe after World War II;
400,000 from Vietnam; 150,000 from the former Yugoslavia.
In the audience today is Omar al-Muqdad. I do not know--if
he could please stand here. Mr. al-Muqdad is a Syrian refugee.
His story is a story of a journalist who, for more than a
decade, publicized human rights abuses by the Assad regime,
arrested seven times, imprisoned for 2 years. When he refused
to stop writing after that, the prison guards broke his hands.
After his release from prison, he continued to write about
the abuses of the Syrian security forces. When he was again
pursued by the regime, he fled to Turkey. He was resettled in
the United States by Catholic Charities after receiving refugee
status.
There have been some strong words spoken about Syrian
refugees. In fact, during the course of the campaign there were
some who said we should accept none, and many have questioned
whether we should accept any refugees from anywhere. Despite
the lengthy vetting process and background checks, some have
said no refugees, we are finished with that business.
One of your responsibilities as Attorney General will be
the involvement of prosecutorial discretion, decisions that
have to be made about the fate of men like Alton Mills, I
introduced earlier, who had served 22 years of a life sentence
for the possession of crack cocaine; the case of Oscar Vasquez,
a man who was a DREAMer and wanted to serve the United States
in uniform; and this case involving Omar al-Muqdad.
The American Bar Association standards say the duty of a
prosecutor is to seek justice, not merely to convict. It is an
important function of the prosecutor to seek to reform and
improve the administration of criminal justice.
When it comes to cases like these, in your role as the
leading prosecutor in the United States of America, what is
your feeling about your discretion to make the decision as to
whether or not to spare individuals like those I have
described?
Senator Sessions. I have been made aware in the last
several years how this process works. It is really the
Secretary of State, usually through consultation with the
President, that decides how many refugees should be admitted to
the country. There is little Congress can do, other than
getting into a funding argument with the President, about that.
So Secretary Kerry met with Members of the Judiciary
Committee to announce what he planned to do on refugees. That
would be how it would be decided, and legally the President
appears to have that power. But it would be my responsibility,
I think, to make sure that it was exercised within the bounds
of law.
Senator Durbin. But you have a responsibility, too. You
oversee the Office of the Pardon Attorney, who recommends that
sentences like those of Alton Mills be commuted. You oversee
the immigration courts, which are responsible for interpreting
how our Nation's immigration laws apply to DREAMers and
refugees like Mr. al-Muqdad.
So this is not another agency, it is the Department of
Justice, and you will be the leader of that department. You
will have the authority and prosecutorial discretion. You
cannot point to Congress and you cannot point to the State
Department; there is a responsibility within your own
department.
Senator Sessions. Well, a refugee is admitted or not
admitted to the United States on the approval or disapproval by
the Secretary of State and its consular officials. It is not a
trial or not a litigation, so that is how that would be
determined.
The gentleman from Syria that you mentioned should have--be
able to make a strong case for his acceptance as a refugee
because he has been damaged and injured and attacked and at
risk for his writings, so that would give him a more--proving
that should give them--put him at a higher level of potential
acceptance.
Senator Durbin. Well, you and I can disagree on this one
point and your authority over immigration courts as Attorney
General, but I hope that we both agree that there are
compelling cases of people who are victims around the world, of
terrorism and war, discrimination and maltreatment, men and
women, and many of them look to the United States as the last
possible place for them to find safety and security.
I hope, after the heated language of this last election
campaign, that we can come back to some of the standards that
have guided this Nation since World War II.
Senator Sessions. Well, we will not end the refugee
program. I would not favor that. But we do have a
responsibility to be careful and make sure that those who are
admitted have been properly vetted and are not a danger.
Senator Durbin. Thank you.
Chairman Grassley. Before I--this is what I would like to
do. The vote has kind of made this a convoluted rounds that we
are in here. One person has had a third round, we have got one
person with no round. So this--or not--without his first round.
And then Senator Sessions would like to take a break.
So here is what I would like to do, Senator Sessions, if it
is okay with you. I want to go with Senator Hatch, Senator
Feinstein for their second rounds, and then Senator Kennedy for
his first round, and give you a short break at that point. Is
that okay?
Senator Sessions. That would be good. Thank you.
Chairman Grassley. And for the benefit of the rest of you,
I kind of got lost out of this, but I have got to be here for
the rest of the meeting, where maybe some of you do not have to
be. So I will wait and do my second, third, and fourth round
when everybody else is gone.
Senator Feinstein. Oh, is that nice!
Senator Sessions. How many?
[Laughter.]
Chairman Grassley. So now it is Senator Hatch.
Senator Hatch. Senator Sessions, I think you have done a
terrific job. I have known you all your 20 years. I have
watched you work diligently on the Judiciary Committee and on
your other Committees as well. You are an honest, decent man
and you have tremendous abilities in law enforcement, and you
have proven it here today and you are showing it here today. It
is hard for me to understand why anybody would be against you.
Let me ask just a couple of questions. I want to emphasize
that you have wide support for your appointment among law
enforcement, including the National Sheriff's Association,
National District Attorney's Association, the National
Association of Police Organizations, the National Association
of Assistant U.S. Attorneys, National Narcotic Officers
Association, the Fraternal Order of Police, the Federal Law
Enforcement Officers Association, the International Union of
Police Associations, and the Associations of Major County
Sheriffs and Major City Chiefs of Police. I am not sure I have
seen anybody that had all that kind of massive support for this
position.
Now, I draw attention to this for an important reason. This
agreement about political--or policy positions are one thing,
but accusations about your commitment to fairness or
suggestions that you are not sensitive to race is another.
Would these law enforcement organizations enthusiastically
support someone who was biased? We know they would not. Of
course not. Would they endorse someone who would fail to be
impartial? Of course not.
Such accusations, especially without any evidence to
support them whatsoever, are not simply attacks on Senator
Sessions, they are also smears against organizations like these
which have similarly examined the record and found Senator
Sessions worthy of support. So I am grateful to you for your
willingness to take this on, knowing that you might be sneered
by certain organizations. It takes some guts to do this, but we
all know you have guts and we all know that you believe in what
you are doing. We all know that you have a tremendous
integrity, we all know that you have a tremendous intellectual
ability as well. And even though you and I have disagreed on
some issues that are important to both of us, you have always
acted with distinction, and with fairness and decency, and I
would expect you to do the same thing as Attorney General of
the United States. One thing I know: you would be giving it
everything you have, and that is a lot. You have a lot to give.
Let me just say that this morning one of my Democratic
colleagues said that the standards for evaluating your
nomination is whether you will ``enforce the law fairly,
evenly, without personal bias.'' Now, do you agree that the
Attorney General has a duty to do that?
Senator Sessions. That is the core responsibility of the
Attorney General, absolutely.
Senator Hatch. I have no doubt, knowing you, that you will
live up to that. No doubt whatsoever. I think everybody should
have to agree with that. The real question is how we can be
confident that you will fulfill that responsibility, and most
of the questions this morning were about statements you made,
positions you took, or votes you cast as a Senator on
legislative issues. Some of these questions suggested that you
could not enforce a law you had not voted for or that you would
not enforce a law or policy that you might have questioned or
personally disagreed with.
Now, I would personally categorically reject that, and you
have, too. Am I right?
Senator Sessions. That is correct.
Senator Hatch. You are darned right it is.
Some of my friends would also reject the suggestion that a
liberal could not be impartial. I think liberals can be
impartial.
Senator Sessions. I do, too, Senator Hatch. Some people--I
do not think it would be hard for me to be impartial and to
enforce laws that I did not vote for. I just do not think that
is going to be a--I think I can separate my personal votes,
maybe years ago, from what my responsibility is today and I
hope that my colleagues can believe that.
Senator Hatch. Well, the answer to the question whether you
can, as Attorney General, enforce the laws fairly evenly and
without personal bias, it is a resounding yes, you can, and
anybody who disagrees with that has not been listening, has not
observed you over the last 20 years, or anytime over the last
20 years. There is not a shred of evidence from your entire
record to undermine that conclusion.
Now, does the fact that you have already served in both the
executive and legislative branches strengthen even further your
commitment to the duty of fairness and impartiality? It seems
to me it does. Am I right?
Senator Sessions. Well, thank you. Yes, I do believe that I
have conducted myself according to principles that I think are
valid and try to be consistent and honest in my evaluation of
the many complex issues that we have here. Sometimes good
people can certainly disagree on them.
Senator Hatch. Well, anybody who knows you knows that that
is true.
Now, the Justice Department has a duty to defend, in court,
the laws enacted by Congress. As a Member of this Committee for
20 years, you have heard Attorney General nominees profess
their commitment to fulfill that duty, regardless of politics.
Now, in my opinion, the Justice Department, under the
outgoing administration, reneged on its duty to do so in a
number of respects. In some key instances, they made decisions
on political rather than legal grounds.
How important is it for the Justice Department to defend
Congress' statutes, and will you commit to do so even when, as
a legislator, you would have opposed those statutes?
Senator Sessions. Senator Hatch, you have been through
these issues for many years and I certainly respect your
judgment, but I do believe that the lawyer for Congress, the
lawyer for the United States that represents the U.S.
Government in court, should be the lawyer that defends an act
lawfully passed in Congress whenever a reasonable defense can
be found, and I commit to you I will do that.
Senator Hatch. Well, I believe you and I know that is true,
and I have a rough time seeing why anybody would find any real
flaws or fault with your nomination. I just want to personally
thank you for being willing to go through this, for your
willingness to be able to do this, and for your integrity that
you have shown, and exhibited, and demonstrated over the last
20 years. I can personally testify about you and about what a
fine, really good person you are.
And we have differed on some pretty important issues from
time to time. I have respect for you because you stand up for
what you believe, however wrong you may have been.
[Laughter.]
Senator Sessions. I heard my wife laugh at that.
[Laughter.]
Senator Hatch. Well, I have a lot of respect for you and I
hope that the rest of this proceeding goes really well and that
we can get you confirmed as soon as possible, because I know
you will do a terrific job and I am very proud of you for being
willing to accept this.
Thanks, Mr. Chairman.
Senator Sessions. I am honored to have your support,
Senator Hatch.
Senator Hatch. Thank you. You have it.
Chairman Grassley. Senator Feinstein.
Senator Feinstein. Thanks very much, Mr. Chairman.
Just to begin, I would like to ask unanimous consent that
all statements and written testimony sent to the Committee
concerning Senator Sessions be made part of the record, and I
have some testimonies and letters.
Chairman Grassley. Without objection, so ordered.
[The information referred to appears as submissions for the
record.]
Senator Feinstein. Thank you very much.
Senator Sessions, when I was a small child it was during
World War II, and my father took me to a racetrack south of San
Francisco called Tanforan. It had become a detention camp for
Japanese American citizens. During the length of World War II--
well, thousands of families were held in this compound. We
checked with CRS who says no Japanese American was ever
convicted of any sabotage against the United States during that
period of time.
Senator Lee, Senator Cruz, and I have tried, together, to
enact a bill to assure that no American citizen or lawful
permanent resident detained in the United States can be held
indefinitely without charge or trial, pursuant to authorization
of military force.
So here is the question: Do you believe that the Government
can, pursuant to a general authorization to use military force,
indefinitely detain Americans in the United States without
charge or trial?
Senator Sessions. Senator Feinstein, that is an important
question. Classically, the answer is yes. Classically, if you
captured a German soldier, they could be held until the war
ended. That was done, I am sure, at the Civil War and most wars
since.
Senator Feinstein. I am talking about Americans.
Senator Sessions. I hear you. So then the question is, we
are in a war like we have now that has gone on multiple years
and I would think the principle of law certainly would appear
to be valid. But as reality dawns on us, and wars might be even
longer, you know, it is important to discuss those issues. So I
respect your willingness to think about that and what we should
do, but in general I do believe--and Senator Graham has argued
forcefully for many years--that we are in a war and when
members who--unlike the Japanese who were never proven to be
associated with a military regime like the Japanese government,
these individuals would have to be proven to be connected to an
enemy, a designated enemy of the United States. I probably
explained more than I should, but that is basically the
argument and the issue we are facing. I respect your concerns
and I am sure they will continue to be debated in the future.
Senator Feinstein. Well, let me just say a few things about
that. I have served on the Intelligence Committee for 15 years.
I read all of it. I think I know as much as anybody about what
is happening in the United States and this is not--these are
Americans that we are talking about that can be picked up and
detained and held without benefit----
Senator Sessions. You are talking about American citizens?
Senator Feinstein [continuing]. Of trial, indefinitely, and
that should not be the case.
Senator Sessions. Well, I understand your point. A citizen
of the United States has certain important rights. They cannot
be abrogated. It is absolutely so, they cannot be detained
without undergoing a habeas review and the Government surely
has to prove that they are indeed connected sufficiently with
an enemy action against the United States or they could not be
detained. And if----
Senator Feinstein. Well, I appreciate that.
Let me go on to another subject. You were one of nine
Senators to vote against the Detainee Treatment Act of 2005. It
prohibited the imposition of cruel, inhuman, or degrading
treatment or punishment of any person in the custody or control
of U.S. personnel. You also voted against an amendment
sponsored by Senator McCain in the 2016 Defense Authorization
bill to limit interrogations to the techniques provided by the
Army Field Manual, which does not include waterboarding.
Do you agree that the CIA's former enhanced interrogation
techniques, including waterboarding, are prohibited by this
provision of law, as now codified at 42 U.S.C. Sec. 2000dd?
Senator Sessions. It does appear to be clear that the last
Act, the McCain Amendment, would prohibit waterboarding.
Senator Feinstein. And you would enforce that?
Senator Sessions. I would enforce the law, yes.
Senator Feinstein. Thank you very much.
Now, my third question is--and this was in The Washington
Post, a report last night--that you failed to disclose to this
Committee and to the Office of Government Ethics subsurface
rights to oil or other minerals on more than 600 acres in your
home State, some of which, I gather, are adjacent to a Federal
wildlife preserve.
Apparently, ``Alabama records show that the Senator leased
undivided mineral interests to Chief Capital, a Texas firm, in
2015.'' Do you in fact own these interests?
Senator Sessions. Senator Feinstein, I believe that is so.
And the way it happened was that many years ago, at least 50 or
more years ago, my family ancestors sold some land and reserved
mineral rights. Later, there was a dam built on the river and a
desire to take land that was going to be flooded and to add
additional land for a duck preserve, and they negotiated and
the family sold land to the Government and retained the mineral
rights, per the agreement. At least, that is my understanding.
So by an odd series of events, the properties fell to me. I
have never reviewed the deeds, I have never known how much land
is out there that I own mineral rights on, although oil
companies are pretty good about making sure they contact real
owners before they drill a well. So you are correct that we
reported the income on my return as----
Senator Feinstein. I saw that, $4,000. I saw that.
Senator Sessions [continuing]. As coming from the property
that I own and the property where the oil well is. I did not
note in that report specifically that it was oil income because
the blank said ``royalties.'' So I would just say this to you,
this is something I have taken no action on. I have one of the
simplest, clearest, fairest, financial reports you can see. My
assets and my wife's assets are almost entirely Vanguard Funds
and municipal bonds. I own no individual stocks because I want
to be sure that I do not have conflicts of interest. I want to
adhere to high standards. We are going to find out what we did
or did not do and correct it.
Senator Feinstein. Good. Thank you.
Chairman Grassley. I welcome brand-new Senator Kennedy, not
only to this Committee but to the Senate as well.
Senator Kennedy, you are allowed 10 minutes now.
Senator Kennedy. Good afternoon, Senator.
Senator Sessions. Thank you.
Senator Kennedy. My name is John Kennedy. That is really my
name.
[Laughter.]
Senator Kennedy. Just so you will know, I used to have a
law partner named Jose Canseco. It caused a lot of confusion
when we would go to meetings together.
Senator Sessions. I guess.
Senator Kennedy. I have been impressed, in preparing for
the hearings, with the deep support you enjoy from law
enforcement. In fact, one of my sheriffs from Louisiana--I do
not know if Greg is still here--Sheriff Greg Champagne, who
also happens to be a lawyer, came all the way up from Louisiana
to lobby other Senators on your behalf. And I have noticed that
a lot of the organizations that are supporting you are
organizations that have not always agreed with your positions
on the issues, and that impressed me.
I just wanted to read you one quick excerpt. This is from a
statement by the Sergeants Benevolence Association from the
NYPD, New York, about as far away from Mobile as you can get.
This is what the letter said: ``As a union representing law
enforcement officers, over the years the SBA''--that is the
Sergeants Benevolence Association--``has worked as both an ally
and a respectful opponent of Senator Sessions. This experience
has shown us that Senator Sessions is a man of unquestionable
integrity, devoted to the rule of law and the best interests of
our Nation. It is for these reasons and many others that we
believe Senator Sessions is the absolute right choice to serve
as America's chief law enforcement officer.''
Now, that impressed me. I would like to know what you
intend, as Attorney General, to do to further partner with
State and local law enforcement?
Senator Sessions. That is so important. The U.S. Attorneys
throughout the country, as in Louisiana and Alabama, are key
players in this. All U.S. Attorneys, colleagues, are funded to
have law enforcement coordinating officers. I had two in my
small office. We had regular meetings. In the early '80s, this
is when it started. This is the first time.
Instead of having a law enforcement plan produced in
Washington, DC, the U.S. Attorneys were directed to get all the
Federal agencies and all the State and local agencies to sit
down and identify what their main threats are and to direct
their resources to deal with these real threats in that
district, and they would be different in different districts
around the country. I sense that that has been eroded somewhat,
so we need to go back to a lot of that.
The Department of Justice has great resources for
identifying tactics and strategies that work on crime. We ought
to be able to always help the State and local police officers
have the best data on what works and how to create safer and
better communities. The Federal Government cannot dictate to
these agencies. It would be a disaster. They would not accept
it, number one, and any influence you might have would be
eliminated. We need to be partners.
The Federal Government, through its power internationally
and nationally, can help a local investigative agency solve a
complex criminal case that they do not have the subpoena power,
or they do not have--a Louisiana U.S. Attorney or sheriff does
not have power to have investigations conducted in Texas or
Denver. So these are the things that are all important. And I
truly believe from a matter of public policy, we need to see
the big picture, and we are all in it together. Ninety percent
of the law officers in America are State and local, and they
are the ones that are the eyes and ears of law enforcement. So
I really think, Senator Kennedy, you are correct that we need
to do this. I think there is a feeling among law enforcement
that that has not been happening sufficiently, and the fact
that I think I understand that explains why I have had as much
strong and enthusiastic support as I have had.
Senator Kennedy. You know, when a radical Islamist
terrorist drives a truck into a group of people and kills them,
we are told that we should not judge all Muslims by the act of
a few. Now, I agree with that. Do you not think the same rule
ought to apply when one or two law enforcement officers make a
mistake, do you not think that same rule ought to apply to all
the other 99.9 percent law enforcement officials out there who
just get up every day and go to work and try to protect us?
Senator Sessions. Well, I really do, and I think those of
us in high public office do need to be cautious about demeaning
whole departments and whole groups of people because within
those--most any department you can find in America, surely most
of the people are just wonderful servants, public servants
trying to do the right thing.
So when we say these things, we can increase risks for
them. We can make it harder for them to have relationships with
constituents where they are serving, and actually result in an
increase in crime and ineffectiveness in law enforcement. So,
we cannot miss these issues. We cannot make big mistakes like
we may be making now. So I commit to doing my best as a law
officer to engender the kind of unity and comprehensive effort,
State, local, Federal, that will be the most effective engine
to fight crime and make our community safer.
Senator Kennedy. In Louisiana, Senator, we believe that
love is the answer, but we also believe that we have the right
under the Constitution to own a gun just in case.
Could you share with me your thoughts on the Second
Amendment?
Senator Sessions. Well, I do believe the Second Amendment
is a personal right. It is a historic right of the American
people and the Constitution protects it, and explicitly states
it. It is just as much a part of the Constitution as any of the
other great rights and liberties that we value. So my record is
pretty clear on that.
However, people can forfeit their right to have a gun, and
it can be a factor in receiving sentences and being prosecuted
if you carry a gun, for example, during the commission of a
crime. That can add penalty and convictions to you. I think
that is a legitimate and responsible restraint on the Second
Amendment right to keep and bear arms.
Senator Kennedy. I think they believe this in Alabama too,
but in Louisiana we also believe that nothing makes it easier
to resist temptation than a good upbringing, a strong set of
values, and witnesses. I would like to know your thoughts on
the Freedom of Information Act.
Senator Sessions. Well, the Freedom of Information Act is
law. I would see it is carried out. The policies of the country
need to be followed.
Senator Kennedy. I have got one final question. I read the
Inspector General's report about the Department of Justice. I
think it came out in about the middle of 2016, last year. The
Inspector General talked about problems with the Department's
massive grant programs. The Inspector General said that
approximately $100 million over the last 5 years went for
``questionable expenditures'' or funds that ``could have been
put to better use.'' Now, this is taxpayer money. It did not
just fall from heaven. We thank heaven for it, but it came out
of people's pockets.
I would like to know your thoughts about the IG report if
you are familiar with it and what you plan to do once you are
confirmed, and I believe you will be confirmed to help our
friends at the Justice Department prioritize their spending a
little bit.
Senator Sessions. Thank you, Senator Kennedy. That report
raises real concerns. I believe that any responsible public
official should recognize that when their own Inspector General
says that their department is not performing according to high
standards, they should listen to that report and take action
and review what is happening and make sure it does not
continue. The American people have no desire, and they
absolutely should not have their money sent to Washington and
then be wasted. We can do a lot more with the money that we
have--having been Ranking Member of the Budget Committee, I
know how difficult it is--but one way to get extra money, free
money, is to use the money you have got wisely for things that
are valuable.
Senator Kennedy. Senator, I do not know you well, but I
followed your career with respect and admiration for a lot of
years, and I just want to tell you that. You will be a great
Attorney General. Thank you very much.
Chairman Grassley. Senator Sessions, you asked for a short
break. I hope, maybe, 15 minutes will be adequate.
Senator Sessions. That would be adequate. Absolutely.
Chairman Grassley. We stand in recess.
[Whereupon, at 3:57 p.m., the Committee was recessed.]
[Whereupon, at 4:13 p.m., the Committee reconvened.]
Chairman Grassley. We will resume with Senator Whitehouse,
but I was wondering if the staff or Members could give my staff
some indication of how many people still want to ask questions,
and it does not matter how many it is, I am going to stay here
as long as people want to ask questions, because I have not had
my second round yet, and if I could ascertain that, I would
appreciate it. I know we have at least one or two Republicans
that want to.
Senator Whitehouse, you go ahead.
Senator Whitehouse. As you know, the Department of Justice
has at its heart the career, prosecutor, and attorney core that
staffs it. On social media, conservative bloggers are already
circulating names of career attorneys in the Department who
they say should be demoted or reassigned, because of positions
they argued under Attorneys General Holder and Lynch.
One commentator for the Heritage Foundation has made the
comparison to ``filth'' within the Department of Justice and
suggested that like the Augean Stables, you need to run rivers
through the Department and wash out the agency from top to
bottom. And you yourself have criticized Department attorneys
for being secular. Now that was as recently as November. Now,
in Rhode Island, we have a long tradition back to Roger
Williams, of separating church and state and as an Attorney
General and as a U.S. Attorney, we also have a tradition of
allowing career attorneys to follow the policy dictates of
other administrations and not holding the career people
responsible for that.
I am wondering how you would react to this. Do you have a
problem with career attorneys if their private religious
beliefs are secular ones? Will you support the career attorneys
against the pressure from these right-wing organizations,
seeking to, ``wash them out like filth,'' to paraphrase the
Heritage Foundation?
Senator Sessions. The Department of Justice is composed
primarily of career professionals, as you know, Senator
Whitehouse. You served there ably as United States Attorney,
and I give them the highest respect. Most of those attorneys
reach high standards and they are willing to follow lawful
orders and directions from their superiors, even if they might
have a different philosophy. I do think that they are often put
into non-career spots and can then go back to career spots, but
I do not know how exactly that works.
I am sure the Obama administration made changes in the
leadership of the department, they put career people in
positions that they thought would be most advantageous for them
to advance the causes they believed in, and that is sort of
within the rules of the game. But to target people, and to any
way demean them, if they were fine public servants and they
were following the law, and carrying out a legitimate policy of
their supervisors, would be wrong and I think we should respect
them.
Senator Whitehouse. Does a secular----
Senator Sessions [continuing]. And I would do that.
Senator Whitehouse [continuing]. Attorney have anything to
fear from an Attorney General Sessions in the Department of
Justice?
Senator Sessions. Well, no. And I use that word at the
90,000-foot level. I am a little concerned that we as a Nation,
I believe, are reaching a level at which truth is not
sufficiently respected; that the very ideal, the idea of truth,
is not believed to be real and that all of life is just a
matter of your perspective and my perspective, which I think is
contrary to the American heritage. But we are not a theocracy,
nobody should be required to believe anything. I shared Thomas
Jefferson's words on the Memorial over here, ``I have sworn
upon the altar of God eternal hostility against every form of
tyranny over the mind of man,'' and I think we should respect
people's views and not demand any kind of religious test for
holding office.
Senator Whitehouse. And a secular person has just as good a
claim to understanding the truth as a person who is religious,
correct?
Senator Sessions. Well, I am not sure. In what method?
Senator Whitehouse. In the method----
Senator Sessions [continuing]. Objectively committed to----
Senator Whitehouse [continuing]. It is that an attorney
would bring to bear it.
Senator Sessions. Well, let me just say we are going to
treat anybody with different views fairly and objectively. And
the ideal of truth in trying to achieve the right solution to
me is an important goal of the American jurisprudential system
and, actually, our legislative system. What is the right thing,
what is true? Let us act on it and do the right thing.
Senator Whitehouse. On the subject of what is truth, you
may----
Senator Sessions. It is an age-old question.
Senator Whitehouse [continuing]. You may be in a position
as Attorney General to either enforce laws, or bring actions
that relate to the problem of carbon emissions and the changes
that are taking place, both physically and chemically in our
atmosphere and oceans, as a result of the flood of carbon
emissions that we have had. It is the political position of the
Republican party in the Senate as I have seen it that this is
not a problem, that we do not need to do anything about it,
that the facts are not real and that we should all do nothing
whatsoever. That is the Senate.
You, as Attorney General of the United States, may be asked
to make decisions for our Nation that require a factual
predicate that you determine as the basis for making your
decision. In making a decision about the facts of climate
change, to whom will you turn? Will you, for instance, trust
the military, all of whose branches agree that climate change
is a serious problem of real import for them? Will you trust
our national laboratories, all of whom say the same? Will you
trust our national science agencies? By the way, NASA is
driving a rover around on the surface of Mars right now. So
their scientists, I think, are pretty good. I do not think
there is a single scientific society, I do not think there is a
single credited university, I do not think there is a single
nation that denies this basic set of facts. And so, if that
situation is presented to you and you have to make a decision
based on the facts, what can give us any assurance that you
will make those facts based on real facts and real science?
Senator Sessions. That is a good and fair question and
honesty and integrity in that process is required and if the
facts justify a position on one side or the other on a case, I
would try to utilize those facts in an honest and appropriate
way. I do not deny that we have global warming. In fact, the
theory of it always struck me as plausible and it is just a
question of how much is happening and what the reaction would
be to it. So that is what I would hope we could see occur.
Senator Whitehouse. Indeed, I will bet you dollars against
those lovely Krispy Kreme doughnuts that we have out back that
if you went down to the University of Alabama and if you talked
to the people who fish out of Mobile, they would already see
the changes in the ocean and they would be able to measure the
pH changes, and they would know that acidification is happening
and that there is no actual dispute about that, except in the
politics of Washington, DC.
Senator Sessions. I recognize the great interest in time
that you have committed to the issue and I value your opinion.
Senator Whitehouse. I do come from an ocean State, and we
do measure the rise in the sea level and we measure the warming
of Narragansett Bay, and we measure the change in pH. It is
serious for us, Senator.
Thank you, my time is expired.
Senator Sessions. Thank you.
Chairman Grassley. Now it looks like it will be the Senator
from Texas, and Senator from Texas, I am going to step out for
a minute and when your 8 minutes are up, would you call on
Senator Klobuchar?
Senator Cruz [presiding]. Sure. Thank you Mr. Chairman.
Senator Sessions, I want to congratulate you in making it
through a lengthy hearing and then performing admirably. And I
think your performance today has reassured this Committee and
even more importantly, has given comfort to the American people
that you will be an Attorney General who will faithfully apply
the law without partiality, without partisan lens, but with
fidelity to the Constitution and the laws of the United States.
I also want to do something I do not do very often, which
is, I want to commend the Democrats on this Committee, for, I
think, showing admirable restraint. At the beginning of this
hearing I had concerns that it would turn ugly with accusations
that do not belong in this hearing. And I think my friends on
the Democratic side of the aisle have largely restrained from
going down that road. I think that was the right decision to
make, but I commend them for that.
You know, I would note that in the recesses of the
internet, and in some of the groups that are speaking on this
nomination, and indeed in the view of some of the protestors
who have made their voices heard today, there have been racial
charges raised, and indeed some of the protestors have chanted
``KKK.'' And you and I have both talked about this a number of
times. That is one of the easiest charges for someone to make
when they do not have an argument on the merits, when they do
not have the facts behind them. And it is a particularly
hurtful argument that can be directed at someone, particularly
when it is countered by the facts.
What I want to focus on principally in this round is
spending a little bit of time highlighting an aspect of your
record, which is your involvement in the prosecution of Henry
Hays, a member of the Ku Klux Klan. Because I suspect it is
something that very few people watching this hearing have ever
heard of. And it is striking and, I think, highly revealing, so
I would like to just walk through some of the facts. I know you
are very familiar with them, but I suspect some of the folks at
home watching this hearing may not be.
In 1981, in Mobile, Alabama, the Ku Klux Klan ordered the
murder of a random African-American man, Michael Donald. KKK
members Henry Hays and James ``Tiger'' Knowles abducted 19-
year-old African-American Michael Donald. They beat him, they
strangled him, they cut his throat, and they hung him from a
tree. Absolutely shameful and disgraceful.
You were a U.S. Attorney at the time. Your office, along
with the FBI, along with the local District Attorney,
investigated the murder. The Department of Justice attorneys
Barry Kowalski and Bert Glenn worked on the case. When asked
about your work on this case, Mr. Glenn testified that,
``During the entire course of the investigations, he''--meaning
Sessions--``has provided unqualified support and cooperation to
us, and independently as an individual who absolutely wanted to
see that crime solved and prosecuted.'' Is that accurate,
Senator Sessions?
Senator Sessions. I think it is, yes. That is exactly what
I intended to do. It actually occurred before I became a United
States Attorney. A wrong group of people had been indicted in
State court that complicated matters. The case was not making
the kind of progress it needed to make and so we had a
discussion. And we invited Civil Rights Division attorneys,
Bert Glenn and Barry Kowalski, both of which were exceptionally
fine, and along with Assistant Thomas Figures in my office,
they broke that case. And I thought they deserved a great deal
of credit. But I was with them, I was in the grand jury with
them. I called the grand jury at their convenience, whenever
they wanted to come to the State. I actually used and empaneled
a special grand jury so they could be called when they desired
it. It had already been called for another special purpose, but
we added that to their purpose. And so they had the flexibility
and it was, I thought, a brilliantly conducted investigation. I
guess Barry Kowalski was the lead attorney in it.
Senator Cruz. Now, Bobby Eddy was the chief investigator
for the Mobile County District Attorney's office. He testified,
``Without his''--meaning Sessions'--``cooperation, the State
could not have proceeded against Henry Hays on the capital
murder charge.'' Chris Galanos, who was the Mobile County
District Attorney in 1981, stated, ``We needed some horsepower,
which the Feds, through Jeff Sessions, provided. Specifically
we needed the investigative power of the FBI and the power of
the Federal grand jury. I reached out to him''--Sessions--``and
he responded, `Tell me what you need and you'll have it.' ''
And indeed, your office prosecuted Hays' accomplice in Federal
court, where he pleaded guilty. And Mr. Eddy testified that
Tiger Knowles, the accomplice, pled guilty on a civil rights
violation and received a life sentence, the highest sentence he
could receive under Federal law, in Federal prison. And he
continued to say Henry Hays was tried in State court by Mr.
Galanos' office and found guilty and sentenced to die in the
electric chair. And this made Hays the first White man executed
in Alabama for murdering a Black person since 1913.
When you were the Attorney General of Alabama, you later
argued to uphold Hays' death penalty. And in 1997, five months
after you joined this party as a Senator, Hays died in
Alabama's electric chair. And I would note not only that, not
only did you assist in the prosecution of the face of evil, a
Ku Klux Klan murderer who saw ultimate justice, but as it so
happened, you also prosecuted Hays' father, KKK Grand Titan
Bennie Jack Hays, who ordered his son to kill an African
American and you prosecuted him for attempting to defraud his
home insurer in order to collect money to pay for his son's
legal defense. Is that correct?
Senator Sessions. That is correct.
Senator Cruz. And beyond that, your office cooperated with
Morris Dees in the Southern Poverty Law Center to bring a civil
suit against the KKK, and Mr. Galanos explained, ``After the
criminal cases were over, the Southern Poverty Law Center took
the evidence we had developed and gave to them and they sued
civilly, and got a 7-million-dollar verdict on behalf of Ms.
Donald. And the 7-million-dollar civil judgment against the KKK
in Alabama bankrupted the Klan, leading to its demise in the
State.'' Is that correct?
Senator Sessions. That is essentially correct, yes. In
fact, they sold the Klan headquarters to help satisfy the
judgment.
Senator Cruz. Well I would say, Senator Sessions, it is
easy for people reading things on the internet to believe
whatever is raised, and passions get hot. And I know the
protestors who stand up and chant ``KKK'' they, in all
likelihood, believe what they are saying, because they are
reading and being encouraged on the internet. But I have not
seen any appointee to the Cabinet, Democrat or Republican, who
has a record like you do of prosecuting Klansmen, putting them
on death row, bankrupting them, and putting them out of
business, and doing so as you had. I will tell you, I admire
your doing so, and I will issue a challenge to our friends in
the news media. I noticed every time a protestor jumped up all
the photographers took pictures of the protestors. I suspect we
are going to see them in all the papers. I would encourage the
news media, cover this story. Tell the story on the six o'clock
news about Jeff Sessions helping prosecute a Klansman who had
murdered an innocent African-American man, and putting him on
death row, and bankrupting--helping bankrupt the Klan in
Alabama. That is a story that needs to be told. And Senator
Sessions, I thank you for your record, I thank you for your
service.
Senator Sessions. Thank you, Senator Cruz, and I would say
it has been very disappointing and painful to have it suggested
that I thought the Klan was okay when we did everything
possible to destroy and defeat and prosecute the Klan members
who were involved in this crime. And it was a good joint
effort. I was supportive of it every step of the way and some
great lawyers worked very hard on it.
Senator Cruz. Thank you, sir.
Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman.
Senator Sessions, just this week backpage.com announced that it
was taking down the adult services section of its website.
Senator Cornyn and I led the bill on the Judiciary Committee,
you contributed to it, which we appreciate. And then we also
had work by Senator Portman and Senators McCaskill and Heitkamp
and others on this issue. We had 48 arrests around the towns of
New Ulm and Mankato, Minnesota, alone, where Backpage was part
of the operation and so this was a good result. They took the
Fifth today in front of Homeland Security while you were
testifying.
But I wanted to know what your plans would be. The Justice
Department finally came out with the national strategy on sex
trafficking, which was part of our bill. And so it will be in
your hands if you are confirmed as Attorney General to
implement it. And could you just give me your thoughts on this
issue?
Senator Sessions. Well I am glad that the entire Nation
seems to be giving priority to this. A lot of great people have
given real focus to the problem of sex trafficking and the
degradation and destruction that results from it. So I think it
would be a firm and important part of the Department of
Justice's priorities and I would look forward to following up
on the legislative successes and other things that are
happening to see if we can make a real impact against this
abominable practice.
Senator Klobuchar. I will say, Attorney General Lynch and
the Deputy Attorney General Yates as former prosecutors like
yourself, they have worked really hard in this area, so it
would be worth talking to them about the work they have done as
well.
Antitrust. Senator Lee and I have long chaired that
Committee. We rotate, depending on who is in charge of the
Senate, as Ranking Member. I care a lot about this. We are in
the midst of a merger wave. Between 2010 and 2015, the number
of mergers reported to the Government increased over 50
percent, from 716 to 1,801, and over the last 18 months we have
seen substantial mergers in pharmaceutical, agriculture, cable,
insurance, beer. Recently, across the political spectrum there
has been a lot of concern about concentration, because, you
know, you need to have an even playing field if competition is
going to flourish. And that means that is better for consumers,
if you have strong competition.
Will you commit to making vigorous antitrust enforcement a
priority? Kind of a sideline to that, there is some concern,
based on some of the statements from the President-elect that
maybe certain companies or industries could be targeted,
depending on if they are in favor or not. These are not
statements that you have made. Could you comment about
independence of the Attorney General when it comes to
considering these cases?
Senator Sessions. The antitrust policies of the United
States have to be consistent and as clear as possible. As you
know, that is not always as easy as some people might think. I
could say with confidence that you and Senator Lee, as leaders
on the Antitrust Subcommittee, have been more attuned to the
details and the special issues that are involved in that
section of the Department of Justice. So we would work
resolutely on it. I have no hesitation to enforce antitrust
law. I have no hesitation, if the finding justifies it, to say
that certain mergers should not occur, and there will not be
political influence in that process.
Senator Klobuchar. Thank you. I am going to put a series of
some other questions on the record. One is on synthetic drugs.
We are working hard. Senator Grassley and I have long worked on
this issue with Senator Feinstein and Senator Graham, and we
have a new bill that we are working on to make it easier to go
after synthetic drugs, and maybe on the record we could get
your comments on that.
Drug courts. Again, one of my top priorities. I think that
they have worked very well in jurisdictions that are devoted to
seeing themselves not just as businesses that want to see
repeat customers, but getting people off of the treadmill of
crime and drugs.
And then, a very Minnesota-focused issue. Minnesota was
just--got a designation called HIDTA, for High-Intensity Drug
Trafficking Area. A lot of it is based on heroin and some of
the opioid addictions that we have seen, and somehow it was set
up so the money came through Wisconsin. If you know anything
about the Vikings-Packers rivalry, this makes our sheriffs very
concerned. I thought I would maybe just on the record--again, I
am not going to get into detail--discuss this with you on the
record and ask you some questions about making sure we get our
due for the funding for Minnesota.
But the last thing I want to talk about was just the
refugee issue. We have the biggest Somali population in the
country. Our U.S. Attorney and the Justice Department have done
an excellent job in taking on some ISIS cases, as well as al-
Shabaab cases, dozens of cases that have been successfully
prosecuted, and I know that work will continue--I want that
work to continue.
We also have--the vast majority of them are law-abiding, an
important part of our community. And as you know, there has
been a lot of anti-Muslim rhetoric out there. We had--I heard
the story in Minneapolis of a family that went out to eat. They
had lived in our town forever. They had two little kids. They
go out to eat and this guy walks by and looks at them and says,
``You four, you go home. You go home to where you came from.''
And the little girl looks up at her mom and she says, ``Mom, I
don't want to go home. You said we could eat out tonight.''
You think of the words of that innocent child. She only
knows one home, and that is my State. She only knows one home,
and that is America. So a big part of the job of the Attorney
General, to me, is not just enforcing those laws, as we have in
our State, against terrorist activities, but it is also
protecting the innocents among us.
So I wondered if you could close your questions from me by
commenting about your view of how you would uphold all of our
Nation's laws, the basic value of religious freedom, but also
the protection of people from larger crimes than the remark I
just talked about, but actually bullying and those kinds of
things, because I just think it has no place in our country.
Senator Sessions. Thank you. That is an important principle
that you have touched on, which is the principle that in
America you are free to exercise your religious beliefs as you
deem fit, as long as it does not violate established law. So we
have that provided for in the Constitution. We cannot establish
a religion and we cannot prohibit free exercise, and I believe
Americans value that principle and support it and we should
always hold it high and we should not back away from it, and
that includes Muslim friends and neighbors, as well as any
other religion.
You are right, overwhelmingly, there is not violence and
radicalism among our Muslim friends and neighbors, and we
should not ever think that and treat people in a discriminatory
basis. When people apply to come to the country it is
appropriate, I believe, to vet them--from countries that may
have had a history of violence, to be careful about who we
admit because basically the admission process is a process that
should serve the national interest. So that is sort of my view
about it. I believe it is an acceptable and good view and would
try to carry that out. But the decision about admitting and not
admitting is really not the Attorney General's decision at all.
It is the policy of the President and the State Department. And
so we would just simply make sure, if it is done, it is done in
a proper fashion and not unlawfully.
Senator Klobuchar. Thank you.
And Mr. Chairman, I also have some statistics on
immigration in response to some of the first exchanges that
Senator Sessions and I had about what Minnesota--the business/
economic value of immigrants in our community. I will just put
that on the record later. So, thank you. Thank you.
Chairman Grassley. Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
Senator Sessions, thanks to Senator Grassley and Senator
McConnell I now find myself as a Member not only of this
Committee, but also the Intelligence Committee, for which I am
grateful. One reason why I thought it was so important for
another Member of the Senate Judiciary Committee to get on the
Intelligence Committee is because while the Intelligence
Committee conducts a lot of the oversight, it is the Judiciary
Committee that confers the authorities on our intelligence
officials and law enforcement officials to do what they do.
My hope is that during this process, where we are coming
off of a very contentious election, that our colleagues across
the aisle will join us in making sure that the new President
has his National Security Cabinet members, at least, confirmed
on an expedited basis. And of course, I would include the
office of Attorney General as one of those. As you know, the
Attorney General and the Department's National Security
Division work with members of the intelligence community and
help oversee the collection of foreign intelligence
information.
I know earlier Senator Leahy and perhaps Senator Lee asked
you a little bit about the USA Freedom Act and the National
Security Agency, but I want to highlight something you are well
aware of, and that is the sunsetting of Section 702 of the
Foreign Intelligence Surveillance Act. According to the Privacy
and Civil Liberties Oversight Board, which Congress
appropriately appointed to oversee the activities of the
intelligence community, Section 702, which will expire at the
end of this year, has been responsible for disrupting more than
100 known terrorist plots, including the New York subway bomb
plot in 2009 and other plots outside the United States. As I
said, if we do not act by the end of the year, that authority
will expire. I think we are fortunate on the Judiciary
Committee to also have, in addition to our other colleagues,
Senator Feinstein, who has until recently served as the Ranking
Member on the Senate Intelligence Committee, and now of course
she is Ranking here. I hope she, along with Chairman Grassley,
will make sure that all of the Committee Members are thoroughly
briefed and comfortable with the reauthorization of Section
702, and to make it one of our highest priorities this year.
In addition to Section 702, as you know, there are other
legal and policy challenges that you are going to face as the
next Attorney General. Our national security investigators and
law enforcement officers are facing incredible challenges, many
of them technical challenges, like growing encryption of
communications, whether it is hardware or in the--or software.
We saw that being relevant to what happened in San
Bernardino, where the FBI had to pay third parties a
substantial amount of money to get at the communications
contained in the telephones of the actors in the San Bernardino
attacks, or in Garland, in my home State of Texas, where the
last time the FBI Director came before this Committee said
there were still a multitude of communications on the devices
of the two shooters in Garland that they still had not been
able to get access to. So the FBI Director said this is a part
of the tradecraft now of terrorists, and he referred to it as
``going dark.'' Thankfully, Chairman Grassley held a hearing on
that just this last year. We know there are other statutes,
including the Electronic Communications Privacy Act, things
like the Electronic Communications--the so called ECTR fix,
which would allow the use of national security letters to get
IP addresses--not content without a warrant, but IP addresses,
or metadata--which is important to these national security
investigations.
I think I know the answer to this, but as Attorney General
I just would like your verbal commitment here to continue to do
what you have always done, and that is, put the safety and
security of the American people first, and you will continue to
work with us, in a cooperative fashion, to make sure that all
the needs of all the stakeholders are being met, including the
brave men and women who defend us each and every day in the
intelligence and law enforcement community. Will you do that?
Senator Sessions. I will, Senator Cornyn, and thank you for
your hard work and leadership on these important issues.
Senator Cornyn. Let me ask you about the Freedom of
Information Act. I do not know whether Senator Grassley had a
chance to ask you about this or not. As you may know, Senator
Grassley and I are--excuse me--Leahy and I are kind of the odd
couple on Freedom of Information Act reforms. As a
conservative, I have always felt that the best antidote to
abuse or waste is sunlight where possible. You do not have to
pass another law or another regulation where people change
their behavior because they know people are watching. And
Senator Leahy and I have worked closely together to see a
number of reforms passed and signed into law, many of which I
know you have supported or consulted with us on. It is not a
blank slate. Sometimes you have to be careful about disclosing
information that ought not to be public information, or is law
enforcement sensitive, or classified, or the like.
But I just would hope that you would continue to work with
us, and I am confident you will, but I would just like to get
your verbal commitment to continue to work with us to make sure
that the public's right to know is protected. I am not
suggesting that the public has a right to know everything
because, frankly, as I have said, classified law enforcement
sensitive information needs to be protected for important
policy reasons. But will you continue to work with us to make
sure that we protect the public's right to know to the extent
feasible?
Senator Sessions. I will, Senator Cornyn, and I would value
your judgment and insight on this important issue. I appreciate
your work.
Senator Cornyn. Thank you.
Thanks, Mr. Chairman.
Chairman Grassley. Senator Franken.
Senator Franken. Thank you, Mr. Chairman. Before I move on
to my questions, I would like to respond very briefly to what
Senator Cruz said earlier. It is important, in my view, that
the Members of this Committee get clarity with regard to the
nominee's record. That is our job and it is important.
Now, let us be clear: Senator Sessions said in his
questionnaire that he ``personally handled four civil rights
cases.'' Some of the lawyers who worked on those cases disputed
that characterization, and Senator Sessions himself, after his
questionnaire was in, felt the need to file a supplement in
which he clarified that he merely provided ``assistance and
guidance'' to Civil Rights Division attorneys on these four
cases. Now, if that is a distinction without a difference, I am
not sure why Senator Sessions felt the need to clarify. But I
want to move on.
Senator Sessions, in late November, President-elect Trump
tweeted, ``In addition to winning the electoral college in a
landslide, I won the popular vote if you deduct the millions of
people who voted illegally.'' Now, let us be clear: President-
elect Trump lost the popular vote by more than 2.8 million
votes, so what he is saying here is that more than 2.8 million
fraudulent votes were cast. Do you agree with President Trump
that millions of fraudulent votes were cast in the Presidential
election?
Senator Sessions. Senator Franken, I do not know what the
President-elect meant when he made that comment, or what facts
he may have had to justify his statement. I would just say that
every election needs to be managed closely and we need to
ensure that there is integrity in it, and I do believe we
regularly have fraudulent activities occur during election
cycles.
Senator Franken. Well, the Department of Justice is tasked
with protecting voting rights and prosecuting fraud, so if
millions upon millions of fraudulent votes were cast, I would
imagine that the next Attorney General would be quite concerned
about that.
Did the President-elect tell you anything about what caused
him to come to this conclusion?
Senator Sessions. I have not talked to him about that in
any depth, particularly since the election.
Senator Franken. Uh-huh. So he did not share any evidence
of voter fraud with you? Because I would imagine, as the man
who wants--that he wants to make responsible for combatting
fraud at the ballot box, that he would want to make sure that
you had all the evidence necessary to take action and to
protect the vote. So he did not do that, evidently.
Before I move on, I should note for the record that State
election and law enforcement officials surveyed in mid-December
found virtually no credible reports of fraud among the nearly
138 million votes that were cast, and no States reported
indications of any widespread fraud. What is truly troubling
about this, I believe, are these bogus claims of voter fraud.
They are routinely used to justify voter suppression. Thanks to
the Supreme Court's disastrously decided Shelby County decision
which gutted the Voting Rights Act, it is easier than ever
before for States to make it harder for people to vote.
Now, Senator Sessions, you have a complicated history with
the Voting Rights Act. Ten years ago when voting rights was a
bipartisan issue, you voted to reauthorize the Voting Rights
Act, everyone did. It passed 98 to nothing. But you have also
called the Voting Rights Act ``an intrusive piece of
legislation.'' You have complained that the Act's preclearance
requirement unfairly targeted certain States, and you said that
there is ``little present-day evidence that State and local
officials restrict access to the franchise.'' You said that the
Voting Rights Act has ``eliminated that discrimination.''
Well, Senator, after the Shelby County decision, which you
celebrated, States began testing the limits of what they could
do, in many cases, citing the risk of so-called voter fraud as
a justification for their actions. Now, that is what happened
in North Carolina, for example. Just a few months after Shelby
County, the State enacted one of the Nation's strictest voter
ID laws and enacted other restrictions without any evidence.
The State described these changes as necessary to prevent
fraud.
Well, the courts disagreed. North Carolina's restrictions
were challenged, and in July, the Fourth Circuit found the
primary purpose of the restrictions was not to fight fraud, but
to make it harder for Black people to vote. Here is what the
court said: ``The new provisions target African Americans with
almost surgical precision. They constitute inept remedies for
the problems, assertively justifying them, and in fact impose
cures for problems that did not exist.''
Senator, do you still believe that there is little present-
day evidence of States restricting access to the franchise? And
if you do, what do you think the Fourth Circuit got wrong when
it found that North Carolina targeted Black voters ``with
almost surgical precision''? Do you accept that North Carolina
was targeting African-American voters, but not believe that it
was engaging in discriminatory conduct?
Senator Sessions. Well, you cannot create laws designed to
inhibit the right of any class of citizens to vote, and so if
the Fourth Circuit found that, and there is a factual basis to
support it, then any law that is passed would be subject to
being either eliminated or altered. So I support your concern
that laws of this kind cannot be used for that purpose.
I do believe, not long ago, that the Supreme Court did
uphold voter ID laws, but there are ways to do it and ways you
probably cannot do it. I am not familiar with the details of
the North Carolina law, but you are correct, any finding that
there is a racial animus in the passing of a law that would
restrict voting would render that unsustainable.
Senator Franken. Now, North Carolina is one of the States
who would have been covered by preclearance, was it not?
Senator Sessions. North Carolina would be. Of course----
Senator Franken. It would have been. So now we are----
Senator Sessions. I would just suggest that Section 2
allows all the remedies, and that is what I suppose they filed
the action under in this case. It is just not a preclearance
question. That preclearance policy is intrusive, as the Supreme
Court has said, and I did not mean that in any pejorative way.
I was asked, do you believe it is intrusive, is that correct? I
said it is intrusive, but the Voting Rights--I said this in
1986--but the Voting Rights Act was absolutely essential to
reverse the problem that we had in the South of systemic voter
suppression.
Senator Franken. Mr. Chairman? Mr. Chairman, let me just
respond to that, please. Okay. Here is the thing.
Senator Sessions. Well----
Senator Franken. Okay. Because we had this debate after
Shelby. Chairman Leahy tried to introduce something, a
substitute, so that we could have preclearance again, which was
fought by you. The whole point is the section--Section 2 of the
Voting Rights Act, you are right. But how many years after
North Carolina did that? So how many times, how many elections
were conducted in North Carolina where African-American votes
were suppressed? That is why you need preclearance. And as soon
as Shelby came down, you saw Texas, you saw North Carolina go,
``Oh, good, now we can suppress votes.'' That is the reason you
have preclearance and that is the reason that you cannot rely
on the District Court or the Circuit Courts to rule.
Senator Sessions. Mr. Chairman, I voted a few years ago to
extend the Voting Rights Act for 25 years. It included
preclearance in it. We all knew at that time that the Supreme
Court would probably take up a case before long that would have
wrestled with the question of whether there is a sufficient
basis for the extraordinary remedy of requiring only a few
States in the country to first have permission, even with
ministerial acts like moving a voting precinct, by the
Department of Justice.
The Supreme Court found that that could no longer be
justified. The Supreme Court decided that we did not have to
have preclearance. But Section 2 of the Voting Rights Act
allows these kind of challenges that Senator Franken is talking
about. That is what was brought in North Carolina, that is what
is being litigated today, and the court there did in fact find
that the voter ID law was improper, as I understand it. So I
believe we have proceeded in a lawful fashion, and I did feel
in one sense that it was a good feeling that the Supreme Court
had concluded that there had been substantial improvement in
our area of the country as to voting rights, sufficiently so
that Section 5 could no longer be justified. But I voted for
it.
Senator Franken. Thank you, Mr. Chairman, for your
indulgence. As Justice Ginsberg said, an umbrella means you do
not get wet when it is raining and you do not take the umbrella
away.
Chairman Grassley. I will put in the record a letter that I
just today received in support of Senator Sessions' nomination
from the National Shooting Sports Foundation. Senator Sasse.
Without objection, I should say.
[The letter appears as a submission for the record.]
Senator Sasse. Thank you, Mr. Chairman.
Senator Sessions, I would like to talk a little bit about
the Sarah Root case. I know that you and I have discussed it
briefly last summer. Sarah Root was a woman who was killed a
year ago this month in Omaha. She had just graduated from
college, and she was killed by a drunken street racer. Omaha
authorities believed that this guy had been engaged in similar
activity many times in the past. He was an illegal immigrant.
He ran into her car, killed her right after her graduation. He
was detained by Omaha police. They ultimately notified the
Department of Homeland Security this guy is a flight risk. He
was able to post a fairly insignificant bond and he
disappeared. The Department of Homeland Security did nothing to
detain the guy, despite the fact that the Douglas County
sheriff and the Omaha Police Department asked that he be
detained. The Obama administration determined that it was not
an enforcement priority.
I do not want to hold you to specifics on this case here,
but I want to get your pledge in this context. I want to hear
you talk generally about the coordination between State and
local enforcement on illegal immigration activities, and
particularly in cases where serious crimes have been committed.
But I wonder if you would pledge now that if I send you a
letter the day after you are confirmed, would you give
expeditious attention to responding with some of these details
about how enforcement priorities are set inside the Federal
Government?
Senator Sessions. Thank you, Senator Sasse. I certainly
will. It does represent unjustifiable failures that we are
seeing too often in our system today.
Senator Sasse. Do you have any top-line thoughts on the way
local and State officials interact with Federal officials on
immigration cases?
Senator Sessions. Well, the immigration enforcement
procedures, the courts have held, are exclusively the power of
the Federal Government. But it is also clear that a State
official has the right to arrest somebody for their offense of
crossing the border illegally. They have the right to arrest
people who have entered the country illegally or repeatedly
entered the country illegally for any kind of offense,
including that of illegal reentry. The cooperative system
should work in a way whereby the Federal Government then
evaluates whether or not it wants to put a hold on in order not
to release that person until they can take them and see them be
deported.
It is failing in a whole number of ways. You have got the
sanctuary cities that refuse to tell Homeland Security they
have got somebody that has committed a serious crime so they
can be deported. They refuse to honor detainers. On the other
side, we have got Homeland Security too often having standards
or failing to follow up on serious offenses of people who
should be deported. So in both aspects, I think, Senator Sasse,
we can do much better. This country has every right to deport
persons who are here unlawfully, who violate our criminal laws
in some other aspect, and they should indeed be promptly
deported.
Senator Sasse. Thank you. We will follow up with a letter,
because this guy, Edwin Mejia, who killed Sarah Root, it was
obvious to everybody engaged locally, lots of law enforcement
and the family whose daughter was killed, that this guy was a
flight risk and everyone was screaming to the Feds, please do
not let this guy disappear before he can stand trial. He is now
on the Top Ten Most Wanted list, and nobody thinks he is ever
going to be found. Everybody believes he left the country.
This kind of case is not an isolated case, it is a kind of
hand-off between Federal and local law enforcement that could
happen repeatedly if you do not have a Federal Government that
has any clear policy. So we would like to--so I would like to
send you a letter, right after your confirmation, asking for
clarity about how enforcement discretion and enforcement
actions are prioritized.
Senator Sessions. And Senator Sasse, I would note that
fundamentally that would be a Homeland Security issue
initially, and they need to set the standards of what they
should and should not do. And I would think that General Kelly
would be quite willing to also talk with you about it, as will
I.
Senator Sasse. I will likely be addressing the letter to
both you and General Kelly, so thank you.
A completely different line of questioning. This morning,
you were asked some hard and appropriate questions about the
responsibility of a chief law enforcement officer for the
Federal Government. When you have--if there are cases where
there might be a conflict between your oath of office to the
Constitution of limited government and a separation of
executive and legislative authorities and the people that you
report to when you work inside an administration, you said in
the course of that answer that there could ultimately be cases
where someone might have to resign because they were being
forced to do something that conflicted with their oath.
I wonder if you could unpack that a little bit and talk
about, you know, the Justice Department's responsibilities and
Attorneys General--Attorneys General past--over the past few
decades. Can you name instances where a resignation might be in
order and what kinds of lines would you envision being crossed,
and ways that you as the Attorney General might push back on an
administration if asked to do things that you regarded as
inconsistent with your oath to the Constitution?
Senator Sessions. It would be difficult to speculate on
that. We saw what you are alluding to during the Nixon
administration. But there could clearly be a circumstance in
which there is such a relationship breach that an Attorney
General would not be an effective member of a President's
administration. Maybe the Chief Executive could even be correct
and the Attorney General could be wrong. But the Attorney
General's duty is to give the best judgment that the Attorney
General can give, and, therefore, if it is rejected on a very
fundamental area, then that causes great concern. Maybe in
another area of less importance, you could afford to disagree.
But I just think that that result should be very rare, has not
happened very often in the history of this country. Actually, I
only know of one. And, therefore, the reason is that usually
the Chief Executive--and I would expect with President Trump--
that when confronted--or advised that certain policies are not
acceptable, he would accept that advice. I am confident that he
would. But you raise a hypothetical, and I have at least given
you my thoughts about it.
Senator Sasse. Just to conclude, because I am inside my
last minute, but going back to the connection between this
question and the OLC line of questioning that Senator Lee posed
this morning, if a head of OLC, if the Assistant Attorney
General from OLC was coming to you and saying, ``I have been
asked to try to justify a certain position, I have been asked
to write a memo to support this position, and I do not think we
can get there, I do not think that the Department of Justice's
considered wisdom and insight into the law is that we can
ultimately write the memo that will authorize certain
actions,'' how do you as the Attorney General envision that
conversation going? Just tell us the parts between an OLC, an
Attorney General's office, and the White House?
Senator Sessions. Well, Attorney General Mukasey, who I
think is still here--yes, and I am honored to have him here
today. He issued a memorandum about how the communications
could be effectively carried out, and it restricted
communications from the political officials to the Justice
Department in a way that guaranteed integrity. But there is
nothing wrong, as I understand it, if it goes through the
proper chain of command that a request for an OLC opinion on a
certain subject--there is nothing wrong with the White House
asking for that. Indeed, you want that. You do not want the
White House acting unadvised. You want it to seek legal advice.
And, generally, historically things get sort of worked out.
If the OLC comes back and says, ``Mr. President, you can do
this, but you cannot do it this way, maybe you can do it that
way, maybe it will not give you everything you want, but that
is safe, that is legal, that is within the realm of action that
the President can take, this we believe is not.'' And, usually,
an Attorney General has the confidence of the President, and
the President knows that he or she is giving him the best
advice, advising him of what he can and cannot do. And you need
the best lawyers, and you need to be very careful because these
things set precedents. They also can result in lawsuits and all
kinds of controversy that should not happen as a result of a
bad OLC opinion.
Senator Sasse. Thank you. The stewardship of the integrity
of that office is critically important. Thank you for your
forthrightness.
Chairman Grassley. Senator Coons.
Senator Coons. Thank you, Chairman Grassley, Senator
Sessions.
Senator Sessions. Thank you, Senator Coons.
Senator Coons. To return to an issue a number of Senators
asked about before, but I just want to get clarity about a
particular concern I had. The intelligence community has issued
a unanimous opinion with high confidence that at the highest
levels, the Russian Government engaged in an organized cyber
attack that was designed to influence the American elections,
and it is, as you have mentioned before, emblematic of the
kinds of threats that the United States faces, whether it is
China stealing our intellectual property or hacks into our
Federal database that affects a lot of Federal workers or in
this case a direct attack on democracy. And you mentioned in
response to a previous question you have not been fully briefed
on this. But there is a bipartisan bill that has been
introduced to strengthen and sustain sanctions against Russia
for this attack on our democracy. Is that something you would
support?
Senator Sessions. That is something that is appropriate for
Congress and the Chief Executive to consider. In other words,
how do you respond to what is believed to be a cyber attack
from a major nation? It is difficult just to say, well, we are
going to prosecute the head of the KGB or some group that has
participated in it--no longer the KGB, of course. So in many
ways, the political response, the international foreign policy
response, may be the only recourse. And it would help in that
regard that more clarity be established, which, Senator Coons,
you probably understand more than I the discussions about
having the world know that if you do X to us, you can expect we
are going to do Y to you.
Senator Coons. Well, I think this bipartisan bill is
designed to be a forceful response to provide predictable
preemption of other countries that might believe that they
could engage in a successful cyber attack to influence future
elections, whether at the Federal or local level. So I urge you
to get briefed up on it, as all Senators can now, and to have a
clear public stance on it.
Let me move to immigration, if I might. Alabama had a State
statute that enforced its schools to check students'
immigration status before allowing them to enroll in school.
Are you concerned at all that that statute might target
innocent children and discourage school attendance for
juveniles?
Senator Sessions. First, I had no involvement in that
statute. Second, I believe the Court struck that statute down.
I am not sure.
Senator Coons. I believe that is correct.
Senator Sessions. Some of the act was declared improper,
and some not. What was your question exactly?
Senator Coons. Well, I will follow up, if I could. There
was a statute in Alabama that was designed to require teachers,
school administrators to check the immigration status of
students before enrolling them. And I believe at that point 5
years ago, you made a public statement that we have allowed a
sad situation for decades where large numbers of people are in
this country illegally, and it is going to have unpleasant and
unfortunate consequences.
Some took that to mean that you felt that it was an
unfortunate consequence but appropriate that children who were
brought here illegally by their parents could be denied access
to education.
Senator Sessions. But they cannot be denied access to
education. The courts have decided that, as I understand it.
The question is: Could you even ask if you are lawfully in the
country or not? And I do not know what the law is on that
subject.
But what I was getting at was that this is a continual
problem and will continue to be a problem if we do not end the
lawlessness. I mean, you would rather have children of
immigrants here that came lawfully rather than unlawfully. It
creates a problem that we do not need to have, and I believe it
is within our grasp to fix, and I believe people of good will
will support that. And we need to get that done. A lot of
problems in our country will be fixed and a lot of our ability
to create a more harmonious system in the future could become
possible once this illegal system is fixed.
Senator Coons. Well, as you know, Senator, on this
Committee together, many of us worked, put great effort into
crafting a bill that ultimately passed the Senate by a strong
bipartisan margin, would have invested heavily in securing the
border, and addressed a lot of unresolved issues in
immigration. But my recollection was you did not support that
bill. It is my hope that we can find a bill, as you say, that
you could support.
Let me move to another point. We worked together to restore
funding to the Federal Public Defenders Service when it was cut
by sequestration, and I think that is because we both agree
that outcomes are more fair when there is effective
representation on both sides. One of the amendments I offered
to that immigration bill would have provided counsel to
children who were applying for refugee status because they were
fleeing violence in their home countries in U.S. immigration
proceedings. Is that something you would support?
Senator Sessions. Senator Coons, as I understand it, that
is the law, that you cannot provide lawyers to illegal entrants
into the country, and I do not believe it distinguishes between
minors and adults. But I may be wrong about that. I presume
that is why you have offered legislation to that effect, to
change established law. But, in general, I do not believe we
can afford nor should we undertake to provide free lawyers for
everybody that enters the country unlawfully. I think that
would be a massive undertaking.
So you are talking about children specifically. I
understand that. I think that is a matter----
Senator Coons. Specifically, those who are applying for
asylum.
Senator Sessions [continuing]. That Congress would need to
decide what to do about it.
Senator Coons. Let me ask you another question, if I might.
There was a lot of discussion in the course of the campaign--it
was a very vigorous campaign--about the role of immigrants and,
in particular, Muslims in this country. And I just want to make
sure I have understood this. You believe it is improper for the
Government to discriminate based solely on a person's religion,
correct?
Senator Sessions. That is incorrect. I believe that
religion, as practiced by and understood by an individual,
could make that individual subject to being denied admission if
that individual's practice of their religion would present a
threat to the country. So we have no requirement to admit
somebody who claims to be religious who would present a threat
to the United States, and I strongly think we have every right
to inquire into those kind of radical and dangerous ideas that
some might----
Senator Coons. So there are about 3 million Muslims in the
United States today. There have been Muslims in America since
its founding. Thomas Jefferson had a copy of the Koran. Would
you support a national registry of Muslims? And what sort of
surveillance of mosques do you think would be appropriate
within the constraints of civil liberties and respect for free
exercise?
Senator Sessions. I would not favor a registry of Muslims
in the United States. No, I would not. And I think we should
avoid surveillance of religious institutions unless there is a
basis to believe that dangerous or threatening illegal activity
could be carried on there. I am not aware that there is a legal
prohibition on that under current law.
Senator Coons. Let me ask a last question, if I might. As
Alabama's Attorney General--this is back in 1996--there was a
conference planned at the University of Alabama, and this was
for LGBT students, a conference to talk about a wide range of
issues, from health to status in society, for the LGBT
community. And based on a State law, you sought to prevent that
conference from happening. And a Federal district court held
that the existing State statute, Alabama State statute, that
prevented ``gatherings in public buildings for the advocacy of
sodomy and sexual misconduct''--I am quoting--the district
court held that that clearly violated the First Amendment, the
free speech rights of students to gather and talk about their
lives. And you publicly announced that you intended to do
everything you could to stop that conference and I believe
sought an injunction, which was later denied, and the Eleventh
Circuit later held that this law was unconstitutional on its
face.
Would you think, looking back on this now, given your
statement earlier that you understand the needs for justice of
the LGBTQ community, that it was a poor use of State resources
to defend a law that was so facially unconstitutional?
Senator Sessions. Senator Coons, that litigation started in
another university before I became Attorney General. It was
going on for about a year, and I believe the litigation arose
from the group filing a declaratory judgment against the law,
and as Attorney General, I felt I should attempt to defend the
law. And the court ruled against it. It would have been better
if we had not passed a law. It would have been better if the
controversy had not occurred.
Senator Coons. Thank you.
Chairman Grassley. Before I go to Senator Crapo, I have a
letter here from a former colleague, Senator Lieberman of
Connecticut, and in that letter he makes an important point.
There are two sentences I would like to repeat: ``Do I agree
with everything he''--meaning Senator Sessions--``has ever said
or done? Of course not. But I do not agree with everything
anyone I know has ever said and done, including myself. If I
were in the Senate today, I would vote aye on his nomination.''
I ask consent to put that in the record.
[The letter appears as a submission for the record.]
Chairman Grassley. Senator Crapo.
Senator Crapo. Thank you, Mr. Chairman.
Senator Sessions, one issue that has been gone over a lot
today which I am going to return to is the question of the rule
of law and whether you would honor it. Many times an
administration will not agree with a particular statute, even
though the language and intent of Congress are crystal clear.
And, in addition, many times the individual who has been
appointed to enforce the laws does not personally agree with a
law that is on the books. Yet, as Attorney General, it will be
your job, as you have already indicated, to enforce and defend
the laws as written by the legislative branch, regardless of
your own personal philosophical views. And I know that you have
done this. Let me talk about a few examples.
Even though you support the death penalty, you agreed to
drop the death sentence of a defendant when you determined that
the aggravating circumstances standard in the statute for
applying the death penalty did not apply to their particular
convicted double murder.
Even though you had supported a Republican Governor when
you were Alabama's Attorney General, when this Governor
violated the ethics laws, you agreed and argued to uphold his
conviction.
Again, when you were the Alabama Attorney General, you
declined to prosecute a former Alabama insurance commissioner
who was a Democrat, even though you received criticism for
this. You did not prosecute because you believed there was
actually a criminal--there was not actually a criminal
violation.
You also prosecuted the Alabama Republican Party Vice
Chairman even though you are from the same party. So it seems
to me that your history shows that you can make those kinds of
judgment calls and do what the job demands.
I already know the answer to this question because I have
seen it in your record and because I have known and worked with
you for a number of years, but I ask anyway, again: If you are
confirmed, will you commit to enforce and defend the laws and
the Constitution of the United States, regardless of your
personal and philosophical views on the matter?
Senator Sessions. I will, Senator Crapo. And I would note
on the death penalty case, my appellate lawyers gave a little
briefing of the cases that were coming up, and they said, ``We
will be defending this death case, but we are probably going to
lose.'' I said, ``Why are we going to lose?'' And they said,
``It did not have the aggravating factor you needed to carry
out a death penalty.'' And I said, ``We cannot go before the
Supreme Court and argue for a death penalty if it does not meet
the standard for a death penalty.'' To which the lawyers said,
``Well, the local people are really fired up about it, and we
usually just do what they want and let the Court decide.'' And
I said, ``Well, no, we should not do that.''
Well, that turned out to be an easy decision to make that
day. But when I was running for the United States Senate, maybe
a year later, it became one of the biggest ads and biggest
attacks on me that I had failed to defend the jury conviction
for murder in this county. But you just have to do the right
thing, and some of these others cases reflect the same thing.
Indeed, that case was taken by the Governor's team to the
State D.A. who prosecuted the case and convicted the man, but
it was reversed on appeal. The Court of Appeals found that he
did not commit a crime, just like we had concluded originally.
So these are tough calls. Sometimes I have not always made them
right. But I do believe you have to put the law first, Senator
Crapo, and I have tried to do that, tried to teach my people
that. And none of us are perfect, but we should strive to get
it right every time.
Senator Crapo. Well, thank you, Jeff. And I knew that
answer, as I said, before I asked the question. But one of the
other Senators here today said that it is important to get your
record out, and I think it is important to get your record
correctly understood, and I think that there unfortunately is
too much inaccurate reporting about your record.
Another instance in that context: As you know, I am the
Republican sponsor of the Violence Against Women Act that we
passed recently here in the U.S. Senate and the Congress. You
have been criticized for not supporting that act, but I want to
give you a chance again to correct the record and to fully
state the record. If I understand it right, you voted for the
original and supported the reauthorization of that act at least
twice, and that your objection to the act that did pass this
last time, the reauthorization, was not at all based on the
question of whether to have the statute in place. It was
instead based on an issue with regard to jurisdiction on Tribal
lands and other related matters.
Could you again restate your position on the issue?
Senator Sessions. Well, thank you, Senator Crapo. And, you
know, I came here as a lawyer, tried to conduct myself
properly, and consider what some might consider legal
technicalities but I think are pretty important. The bill, as I
understood it, was controversial primarily because of this
situation in which a non-Tribal member could be tried in a
Tribal court, which apparently, I think it is fair to say, is
not constructed in a way that is consistent with the
Constitution, and in a way that we have never done before.
And so eight of the nine Republicans on the Judiciary
Committee concluded that this was not appropriate. So by voting
against that version of the Violence Against Women Act, if it
had failed, we would not then, I am confident, have had a bill.
We would have been able to pass a Violence Against Women Act
that did not have that provision in it. So that is sort of
where we were in the political process, and one of the bad
things about modern American politics is if you take that
position, you are not portrayed as being wrong on the Tribal
issue; you are portrayed as being against a bill that would
protect women from violence. And I think that is unfair, and
thank you for giving me the chance to respond.
Senator Crapo. Well, thank you, and I appreciate that, and
I can again confirm because, as I said, I am the Republican
sponsor of that bill, and that description you have given is
exactly one of just a couple issues which were being seriously
litigated, if you will, here, which we were trying to resolve.
And those of you who took that position, again, were not in any
way objecting to the act. You had multiple times before
supported it, and you were trying to help resolve one specific
issue on the bill. And so I just wanted to clarify that with
you and, again, get the record straight about where you stand
on the issue.
I see my time is pretty much gone, Mr. Chairman. I will not
go to my next question.
Chairman Grassley. Before I call on Senator Blumenthal, out
of consideration for you, I want to explain what I think we
have left here. And if you need a break, tell me.
We have got two Democrats and two Republicans to do a
second round besides the Chairman, but I am going to wait until
later to do my second round. We have got two Democrats, I have
been told, at least, who want a third round. And so what I
would like to do is, first of all, if you need a break, we will
take a break whenever you say so now. And in the meantime, I
would like to have my colleagues take into consideration
something I want to do. I want everybody to get over here that
wants to ask questions, and I am not going to take up anybody's
time until everybody else is done. And then I want to take
about maybe 15 or 20 minutes of your time to do the equivalent
of a couple rounds with questions I have not asked yet. So what
is your desire?
Senator Sessions. I am ready to go.
Chairman Grassley. Okay. Senator----
Senator Sessions. I may need a break at some point.
Chairman Grassley. Well, you just say when you want to take
a break.
Senator Sessions. Thank you. Thank you, Mr. Chairman.
Chairman Grassley. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Thank you,
Senator Sessions.
I was pleased to hear you disavow and denounce Operation
Rescue in response to my last questions. I want to ask about a
couple of other groups and individuals.
In 2003, at an event called ``Restoration Weekend,'' you
gave a speech praising a man named David Horowitz as ``a man I
admire.'' David Horowitz has said, among other things, that
``all the major Muslim organizations in America are connected
to the Muslim Brotherhood,'' and ``80 percent of the mosques
are filled with hate against Jews and Americans.'' He has also
made a number of statements about African Americans, as in,
``Too many Blacks are in prison because too many Blacks commit
crimes.'' You praised him as ``a man I admire.''
That statement was omitted from your response to the
Committee. Did you omit it because you were embarrassed about
praising David Horowitz?
Senator Sessions. No, and I did not know David Horowitz had
made those comments. I read his brilliant book--what is the
name of it? I have a hard time remembering. But it was about
his transformation, having grown up in, as he described it, a
``communist family.'' He was editor of Ramparts magazine, the
radical magazine, and I believe ``Radical Son'' was the name of
his book. And it was a really powerful and moving story of how
he moved from the unprincipled totalitarian radical left to a
more traditional American person.
Senator Blumenthal. I find it----
Senator Sessions. He has written a number of other books
and I have read, I think, one of them. But he is a most
brilliant individual and has a remarkable story. I am not aware
of everything he has ever said or not.
Senator Blumenthal. Well, these statements have been
reported publicly repeatedly over many years. You first came to
know him in 2003. In fact, you received an award from the David
Horowitz Freedom Center in 2014. You are unaware of any of the
apparently racist comments that he made over----
Senator Sessions. I am not aware of those comments, and I
do not believe David Horowitz is a racist or a person that
would treat anyone improperly, at least to my knowledge. And he
did give me----
Senator Blumenthal. Well, let me just----
Senator Sessions. The award he gave me was the Annie
something Johnson Award, and that was the lady that went over
Niagara Falls in a barrel. That is the award that I received.
[Laughter.]
Senator Blumenthal. Let me ask you about another group
which also you left out of your questionnaire, a group that the
Southern Poverty Law Center, cited earlier by Senator Cruz,
listed as a hate group. And you received from the Federation
for Fair Immigration Reform an award known as the Franklin
Society Award. The founder of that group has said, ``I have
come to the point of view that for European-American society
and culture to persist requires a European-American majority,
and a clear one at that.'' He said also, ``Too much diversity
leads to divisiveness and conflict.'' The founder, John Tanton,
also through his political action committee, contributed twice
to your campaigns in 2008 and 2014, $1,000 in each donation.
Will you denounce those statements and disavow that award
and that support from that organization?
Senator Sessions. I do not accept that statement. I believe
the United States should have an immigration policy that is
fair and objective and gives people from all over the world the
right to apply. And that we should give preference to people
who have the ability to be prosperous and succeed in America
and can improve their lives and improve the United States of
America. And that is sort of my view of it. I do not accept
that kind of language----
Senator Blumenthal. Will you return the award----
Senator Sessions [continuing]. It would be contrary to my
understanding of the American vision of life.
Senator Blumenthal. Will you return the award?
Senator Sessions. Well, I do not know that I have to. I do
not know whether he had any involvement in choosing the award
or not. Presumably, the recipient of the award is chosen based
on some contribution or criteria, but I was not involved in
that decision.
Senator Blumenthal. This award similarly was left out of
your response to the questionnaire, and I guess the question,
Senator Sessions, is: How can Americans have confidence that
you are going to enforce anti-discrimination laws if you have
accepted awards from these kinds of groups and associated with
these kinds of individuals and you will not return the awards?
Senator Sessions. Well, first of all, I do not know that I
defer to the Southern Poverty Law Center as the final authority
on who is a radical group. So I would first challenge that.
They acknowledged publicly, and have in the last few weeks,
that I was a strong assister to them in prosecuting the Klan,
but they said they oppose me because of their views on
immigration. Well, I believe my views on immigration are
correct, just, decent, and right. Somebody else can disagree,
but that is what I think. I do not----
Senator Blumenthal. Would you also disavow support from
Frank Gaffney at the Center for Security Policy, who gave you
an award in August 2015, similarly having made statements about
Muslims and supporting your candidacy for Attorney General?
Senator Sessions. Well, they chose to give me the award.
They did not tell me what they gave it to me for. And I do not
adopt everything that that center would support, I do not
suppose. I am pretty independent about those things. I would
acknowledge----
Senator Blumenthal. But you can understand----
Senator Sessions [continuing]. That Ronald Reagan, Dick
Cheney, Joe Lieberman also have received that award from that
institution.
Senator Blumenthal. Well, he has not been nominated to be
Attorney General.
Senator Sessions. Well, he has not. But he ran for Vice
President on your party's ticket.
Senator Blumenthal. And the people of the United States
might be forgiving for including that the kinds of attitudes
and the zealousness--or lack of it--that you bring to
enforcement of anti-discrimination laws might be reflected in
your acceptance of awards from these organizations, your
association with these kinds of individuals. So, I am giving
you the opportunity to completely repudiate and return those
awards.
Senator Sessions. Senator Blumenthal, I just feel like the
reason I was pushing back is because I do not feel like it is
right to judge me and require that I give back an award if I do
not agree with every policy of an organization that gave the
award. I was honored to be given awards.
A lot of prominent people, I am sure, have received awards
from either one of these groups. And David Horowitz is a
brilliant writer and I think has contributed to the policy
debate. Do I agree with everything he said? I am sure I do not.
Some of the language that you indicated he has used, I am not
comfortable with. It is all right to ask that question. But I
do not believe it would be proper for you to insist that I am
somehow disqualified for Attorney General because I accepted an
award from that group.
Senator Blumenthal. Given that you did not disclose a
number of those awards, are there any other awards from groups
that have similar kinds of ideological, negative views of
immigrants or of African Americans, or Muslims, or others,
including awards that you may have received from the Ku Klux
Klan?
Senator Sessions. Well, I would not receive it from Henry
Hayes, I will tell you that. He no longer exists. So no, I
would not take an award from the Klan.
Senator Blumenthal. I want to give you the opportunity----
Senator Sessions. So I would just say that I received
hundreds of awards. I do not think--I probably somehow should
have made sure that the--Annie Johnson jumping off the Niagara
Falls, I should have reported that. But I would just say to
you, I have no motive in denying that I received those awards.
It was probably publicly published when it happened. I have
received hundreds--multiple hundreds of awards over my career,
as I am sure you have.
Senator Blumenthal. My time has expired, Mr. Chairman. I
apologize, and I will return on the third round. Thank you.
Chairman Grassley. I do not find any fault with the
questions you are asking, except for this business that
somebody that is in the United States Senate ought to remember
what awards we get. I do not know about you, but I will bet
every other week somebody's coming into my office to give me
some award, and you take these plaques, or whatever they give
you, and you do not even have a place to hang them. You store
them someplace. I do not know whether, even if I went down to
that storage place, I could tell you all the awards I got. I do
not need any more awards. It is kind of a problem that they
give you the awards.
[Laughter.]
Chairman Grassley. And obviously I will bet Senator
Sessions feels that way right now.
[Laughter.]
Senator Blumenthal. I do not differ with you. Mr. Chairman,
I do not differ with you that, sitting here, none of us on this
side of the table could probably recall every single award we
have ever received. But the questionnaire from this Committee
asked for the information as to all awards, and I think it is
fair to observe that a number of these awards were omitted from
the responses.
Chairman Grassley. Okay. Well, if somebody asked me to fill
out that same questionnaire, it would never be complete, and I
do not know how you ever could make it complete.
Before I go to you, I have a statement here from the
Alabama State Senate, Quinton Ross, a Democrat, Minority
Leader. He says, ``I know him,'' meaning Senator Sessions,
``personally and all of my encounters with him have been for
the greater good of Alabama. We have spoken about everything
from civil rights to race relations, and we agree that as
Christian men, our hearts and minds are focused on doing right
by all people.''
I do not think we should forget that Senator Sessions got
re-elected to the United States Senate without a primary
opponent or a general election opponent. Ye gods, you know,
would we not all like to do that?
Senator Graham.
Senator Graham. I have been unable to do that.
Chairman Grassley. For the record, without objection.
[The information appears as a submission for the record.]
Senator Graham. Thank you. I had six primary opponents.
Chairman Grassley. I can understand why.
Senator Graham. There you go. I will probably have 10. I
will probably have 10 next time. But here is what I want them
to know: I, too, received the Annie Taylor Award.
Senator Sessions. The Annie Taylor Award.
Senator Graham. Yes, there it is. I was there. I got it,
too. I do not get enough awards; you can speak for yourself,
Mr. Chairman.
[Laughter.]
Senator Graham. Yes, I got the award. I went to the dinner,
and Chris Matthews interviewed me. So I do not know what that
means, other than I will do almost anything for a free dinner.
[Laughter.]
Senator Graham. You know, I like Senator Blumenthal, but
you know, we did this for Alito, this whole guilt by
association stuff. You have been around 15 years.
Senator Sessions. Twenty.
Senator Graham. Twenty. Well, 15 with me. I am pretty sure
you are not a closet bigot. And I got the same award you did.
That other award--who got it, Joe Lieberman?
Senator Sessions. He got the award at the Gaffney.
Senator Graham. Okay. Well, anyway, all I can tell you is
that this whole idea that if you receive recognition from some
group, you own everything they have ever done or said, is
probably not fair to any of us. We can go through all of our
records about donations. The bottom line is, Senator Sessions,
there is no doubt in my mind that you are one of the most fair,
decent, honest men I have ever met. And you know what I like
most about you? If you are the only person in the room who
believes it, you will stand up and say so. I have seen you
speak out when you were the only guy that believed what you
believed, and I admire the heck out of that. So if I get
nominated by Trump, which I think will come when hell freezes
over----
[Laughter.]
Senator Graham [continuing]. I am here to tell you I got
the Annie Taylor award, too.
So let us talk about the law of war. I think you were asked
by Senator Feinstein about indefinite detention. Hamdi v.
Rumsfeld. This is Sandra Day O'Connor's quote: ``There's no bar
to this Nation's holding one of its own citizens as an enemy
combatant.'' That case involved a U.S. citizen that was
captured in Afghanistan and was held as an enemy combatant. Are
you familiar with that case?
Senator Sessions. Generally, yes. Not as familiar as you
because I know you have studied it in great depth.
Senator Graham. Well, being a military lawyer, this was
sort of part of what I did.
Do your constitutional rights as a U.S. citizen stop at the
Nation's shores or do they follow you wherever you go?
Senator Sessions. Well, you have certain rights wherever
you go.
Senator Graham. So if you go to Paris, you do not give up
your Fourth Amendment right against illegal search and seizure.
Could the FBI break into your hotel room in Paris and basically
search your room without a warrant?
Senator Sessions. I do not believe----
Senator Graham. No, they cannot. Your constitutional rights
attach to you. So to the people who say, well, he was in
Afghanistan, that does not matter. What the court is telling
us, no American citizen has a constitutional right to join the
enemy at a time of war. In re: Quirin, that case involved
German saboteurs who landed in Long Island. Are you familiar
with this?
Senator Sessions. I am very familiar with that case. I have
read it.
Senator Graham. They were German saboteurs and had American
citizen contacts in the United States. They were all seized by
the FBI and tried by the military. So what I would tell Senator
Feinstein and my other colleagues, the law is well settled
here, that a United States citizen in other wars have been held
as enemy combatants when the evidence suggests they
collaborated with the enemy.
Under the current law, if you are suspected of being an
enemy combatant within a certain period of time--60 days, I
think--the Government has to present you to a Federal judge and
prove, by a preponderance of the evidence, that you are a
member of the organization they claim you to be a member of.
Are you familiar with that, your habeas rights?
Senator Sessions. Correct. Yes.
Senator Graham. So as to how long an enemy combatant can be
held, traditionally under the law of war, people are taken off
the battlefield until the war is over or they are no longer a
danger. Does that make sense to you?
Senator Sessions. It does make sense, and that is my
understanding of the traditional law of war.
Senator Graham. And the law of war is designed to, like,
win the war. The laws around the law of war are designed to
deal with conflicts and to take people off the battlefield, you
can kill or capture them, and there is no requirement like
domestic criminal law that at a certain point in time they have
to be presented for trial because the goal of the law of war is
to protect the Nation and make sure you win the war. So when
you capture somebody who has been adjudicated a member of the
enemy force, there is no concept, in military law or the law of
war, that you have to release them on an arbitrary date,
because that would make no sense.
All I am saying is that I think you are on solid ground,
and this idea of an American citizen being an enemy combatant
is part of the history of the law of war. And I am very willing
to work with my colleagues to make sure that indefinite
detention is reasonably applied and that we can find due
process rights that do not exist in the traditional law of war,
because this is a war without end.
When do you think this war will be over? Do you think we
will know when it is over?
Senator Sessions. I have asked a number of witnesses in
Armed Services about that, and it is pretty clear we are
talking about decades before we have a complete alteration of
this spasm in the Middle East that just seems to have legs, and
will continue for some time.
Senator Graham. So let me----
Senator Sessions. That is most likely what would happen.
Senator Graham. You are about to embark on a very important
job in an important time, and here is what my suggestion would
be: That we work with the Congress to come up with a legal
regime that recognizes that gathering intelligence is the most
important activity in the law against radical Islam. The goal
is to find out what they know. Do you agree with that?
Senator Sessions. That is a critical goal.
Senator Graham. And I have found that under military law
and military intelligence gathering, no manual I have ever read
suggested that reading Miranda rights is the best way to gather
information. As a matter of fact, I have been involved in this
business for 33 years, and if a commander came to me as a JAG
and said we just captured somebody on the battlefield--you name
the battlefield--they want their rights read to them, I would
tell them, they are not entitled to Miranda rights. They are
entitled to Geneva Convention treatment, they are entitled to
humane treatment, they are entitled to all the things that go
with the Geneva Convention because the court has ruled that
enemy combatants are subject to Geneva Convention protections.
I just want to let you know, from my point of view, that we
are at war. I am encouraged to hear that the new Attorney
General recognizes the difference between fighting a crime and
fighting a war, and that the next time we capture bin Laden's
son-in-law, if he has got any more, I hope we do not read him
his Miranda rights in 2 weeks. I hope we keep him, humanely, as
long as necessary to interrogate him to find out what the enemy
may be up to. Does that make sense to you?
Senator Sessions. Well, it does. We did not give Miranda
warnings to German and Japanese prisoners we captured, and it
has never been part of the--and so they are being detained and
they are subject to being interrogated properly and lawfully
anytime, any day, and they are not entitled to a lawyer, and so
forth.
Senator Graham. Right. And Miranda and all did not exist
back in World War II but it does now, but the law, the Hamdi
case says--this is very important--that you do not have to read
an enemy combatant their Miranda rights. They do have a right
to counsel in a habeas proceeding----
Senator Sessions. In a habeas court. You are correct.
Senator Graham [continuing]. To see if the Government got
it right. You can hold them as long as is necessary for
intelligence gathering, and you can try them in Article III
courts, you can try them in military commissions. As Attorney
General of the United States, would you accept that military
commissions could be the proper venue, under certain
circumstances, for a terrorist?
Senator Sessions. Yes.
Senator Graham. Thank you.
Chairman Grassley. Senator Hirono, then Senator Kennedy,
then you should take a break, because I want one.
[Laughter.]
Chairman Grassley. Proceed.
Senator Hirono. Thank you.
Senator Sessions, in 1944, the Supreme Court handed down
what is considered one of the worst rulings in the history of
our country, and that case is Korematsu v. United States, which
upheld the constitutionality of the internment of Japanese
Americans in internment camps.
Despite the near-universal condemnation today of the
court's ruling, this past November, Carl Higby, a spokesman for
a pro-Trump Super PAC and a surrogate for President-elect
Trump, cited Korematsu as precedent for a program which would
require Muslims in the United States to register with the
Government.
Here are my questions: First, would you support such a
registry for Muslim Americans? In other words, U.S. citizens?
Senator Sessions. I do not believe we need a registration
program for U.S. citizens who happen to be Muslim. Is that the
question?
Senator Hirono. Yes. My question is whether you would
support such a registry for U.S. citizens who happen to be
Muslims.
Senator Sessions. No.
Senator Hirono. Thank you.
So since the President may go in that direction, what kind
of constitutional problems would there be for U.S. citizens who
happen to be Muslims to be required to register?
Senator Sessions. Well, my understanding is, as I recall,
the later comments by President-elect Trump do not advocate for
that registration, but he will have to speak for himself on his
policies. But I do not think that is accurate at this point, as
his last stated position on it.
Senator Hirono. Since you do not support such a registry
for U.S. citizen Muslims, is that because you think that there
are some constitutional issues involved with such a requirement
for U.S. citizen Muslims?
Senator Sessions. It would raise serious constitutional
problems because the Constitution explicitly guarantees the
right to free exercise of religion. I believe Americans
overwhelmingly honor that and should continue to honor it, and
it would include Muslims for sure. I do not believe they should
be treated differently, fundamentally. They should not be
treated differently.
Senator Hirono. Thank you.
And in addition to the freedom of religion provisions,
perhaps there would be some equal protection constitutional
problems, possibly some procedural due process constitutional
problems with that kind of registry requirement.
Turning to consent decrees, there are more than 18,000 law
enforcement agencies in the United States. America's police
officers are the best in the world, and that is due in large
part to their bravery, skill, and integrity in what they do.
Our Constitution ensures that the Government is responsible to
its citizens, and that certain rights should not be violated by
the Government. But that does not mean that things always work
perfectly, as you noted in one of your responses, in the real
world.
So while the vast majority of police officers do exemplary
work and build strong relationships with their communities to
keep the public safe, there have been specific use-of-force
deadly incidents that have sparked nationwide outrage.
Some of these incidents have led the Attorney General's
Civil Rights Division to do investigations into whether
individual police departments have a ``pattern of practice'' of
unconstitutional policing and to make sure our police
departments are compliant with the law.
When these investigations find that police departments are
engaged in unconstitutional policing, they are frequently
resolved through consent decrees with the Department of
Justice, which requires police departments to undertake certain
important reforms that are overseen by independent monitors to
ensure that necessary changes are being made in these
departments.
Senator Sessions, you once wrote that ``consent decrees
have a profound effect on our legal system, as they constitute
an end run around the democratic processes.'' Currently, more
than 20 police departments around the country are engaged in
consent decrees with the Justice Department. In Maryland,
Baltimore Mayor Catherine Pugh said Monday she expects her city
to finalize a consent decree with the Justice Department this
week, as noted in the Baltimore Sun.
My question is, will you commit to maintaining and
enforcing the consent decrees that the Justice Department has
negotiated during this administration?
Senator Sessions. Those decrees remain in force if and
until and if they are changed. And they would be enforced. The
consent decree itself is not necessarily a bad thing, could be
a legitimate decision. There can be circumstances in which
police departments are subject to a lawsuit, which is what
starts this process, ultimately ending in a consent decree.
But I think there is concern that good police officers and
good departments can be sued by the Department of Justice when
you just have individuals within the department who have done
wrong and those individuals need to be prosecuted.
These lawsuits undermine the respect for police officers
and create an impression that the entire department is not
doing their work consistent with fidelity to law and fairness,
and we need to be careful before we do that, is what I would
say to you, because filing a lawsuit against a police
department has ramifications, sometimes beyond what a lot of
people think. It can impact morale of the officers, it can
impact and affect the view of citizens to their police
department. I just think that caution is always required in
these cases.
Senator Hirono. Senator Sessions----
Senator Sessions. I would not pre-judge a specific case.
Senator Hirono. I understand that, but showing a pattern of
practice needs to be shown, so these are not just a rogue
police officer doing something that would be deemed
unconstitutional.
So are you saying that with regard to negotiated consent
decrees that you will revisit these consent decrees and perhaps
give police departments a second bite at the apple so that they
can undo some of the requirements on them?
Senator Sessions. Well, presumably the Department of
Justice, under the Holder-Lynch leadership, would be expecting
to end these decrees at some point, so I just would not commit
that there would never be any changes in them. If departments
have complied or reached other developments that could justify
the withdrawal or modification of the consent decree, of course
I would do that.
Senator Hirono. Well, usually consent decrees require when
they end it is because they have complied with the provisions
of the consent decree. So I am just trying to get a simple
answer. And I hope that you would----
Senator Sessions. Well, I will give you a simple answer.
It is a difficult thing for a city to be sued by the
Department of Justice and to be told that your police
department is systematically failing to serve the people of the
State or the city. So that is an august responsibility of the
Attorney General and the Department of Justice.
Senator Hirono. So----
Senator Sessions. So they often feel forced to agree to a
consent decree just to remove that stigma, and sometimes there
are difficulties there. So I just think we need to be careful
and respectful of the departments.
Senator Hirono. I understand that. But as to the consent
decrees that were negotiated with both parties in full faith to
do what is appropriate, that you would leave those intact
unless there are some exigent or some extraordinary
circumstances.
Of course, going forward as Attorney General you can enter
into whatever consent decrees you deem appropriate. So my
question really is the existing consent decrees, which took a
lot to negotiate, by the way. And it is not the vast majority
of police departments in this country, it is 20.
Chairman Grassley. You can answer that if you want to, and
then we will move on.
Senator Sessions. I understand what you are saying. One of
the impacts of a consent decree is it does require judicial
approval of any alteration in it, and that raises pros and
cons.
Senator Hirono. Thank you.
Chairman Grassley. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
Senator, could you tell the Committee a little bit more
about what it was like to be a U.S. Attorney? What was your
management style? Did you enjoy it? How was it compared to
serving in the State government as a State Attorney General?
Senator Sessions. I loved being a U.S. Attorney. Almost
everybody that has held the job says it is the greatest job if
you like law enforcement and trying to protect citizens and
prosecuting criminals. It was just a fabulous job, and we had
great assistants. I loved it, and our team did. Those were
Camelot days for me. So I did feel that. I only had 2 years as
Attorney General. We had this monumental deficit when I got
elected and we had to lay off a third of the office because we
did not have money to pay the electric bill, and it was just
one thing after another. Then I was running for the Senate, so
I did not get to enjoy that job.
But the United States Attorney's job was a really fabulous
experience, and I believe in the course of it I worked with
FBI, DEA, U.S. Customs, Marshals Service, all the Federal
agencies, ATF, IRS, Postal Service and their inspectors, and
you get to know their cultures and their crimes that they
investigate, the officers and what motivates them, and how a
little praise and affirmation is so important for them. They
get the same salary, you know. If they are not being
appreciated, they feel demeaned, their morale can decline. So
that kind of experience was wonderful, and I do think it would
help me be a better Attorney General.
Senator Kennedy. I have made up my mind. I yield back my
time. I hope you will be a raging voice of common sense at the
Department of Justice, Senator.
Senator Sessions. Well, thank you.
Chairman Grassley. Before you take a break, I hope that all
the people that still want to do a third round will come back
in about maybe 15 minutes, or a little less. Is that okay?
Senator Sessions. Yes.
Chairman Grassley. Okay. We stand in recess for 15 minutes
or so.
[Whereupon, at 6 p.m. the Committee was recessed.]
[Whereupon, at 6:26 p.m., the Committee reconvened.]
Chairman Grassley. For third round, I call on Senator
Franken.
Senator Franken. Well, thank you.
Senator, last Friday, the Director of National
Intelligence--we have covered this a little--representing 16
agencies, released a declassified intelligence report stating,
``we assess Russian President Vladimir Putin ordered an
influence campaign in 2016 aimed at the U.S. Presidential
election,'' and yet despite the consensus among our
intelligence agencies, President-elect Trump has remained
persistently skeptical.
During the first Presidential debate, he wondered aloud
whether the responsible party could be China or ``somebody
sitting on their bed that weighs 400 pounds.'' Last month, he
called reports of Russian hacking ``ridiculous'' and ``another
excuse for the Democrat loss.'' He said, ``It could be somebody
sitting in a bed someplace again. I mean, they have no idea.''
And even after the release of the declassified report, the
President has really yet to acknowledge Russia's role in the
hacking. You said earlier that you accept the FBI's conclusion.
To my mind, it is absolutely extraordinary to see a President-
elect so publicly refuting, and without evidence so far as I
can tell, the assessment of our intelligence agencies.
Why do you think President-elect Trump has been so
unwilling to acknowledge Russian involvement in the hacking?
Senator Sessions. I did mean to indicate I respect the FBI
and I respect the fact that if they give a conclusion, they
believe it is accurate. I am not able to comment on the
President-elect's comments about it.
Senator Franken. Okay.
CNN has just published a story--and I am telling you about
a news story that has just been published, so I am not
expecting you to know whether it is true or not--but CNN just
published a story alleging that the intelligence community
provided documents to the President-elect last week that
included information that ``Russian operatives claimed to have
compromising personal and financial information about Mr.
Trump.''
These documents also allegedly stated, ``There was a
continuing exchange of information during the campaign between
Trump surrogates and intermediaries for the Russian
government.'' Now again, I am telling you this as it is coming
out, so, you know--but if it is true, it is obviously extremely
serious. If there is any evidence that any one affiliated with
the Trump campaign communicated with the Russian government in
the course of this campaign, what will you do?
Senator Sessions. Senator Franken, I am not aware of any of
those activities. I have been called a surrogate at a time or
two in that campaign and I did not have communications with the
Russians, and I am unable to comment on it.
Senator Franken. Very well.
Without divulging sensitive information, do you know about
this or know what compromising personal and financial
information the Russians claimed to have?
Senator Sessions. Senator Franken, allegations get made
about candidates all the time, and they have been made about
President-elect Trump lots of times. Most of them--virtually
all of them--have been proven to be exaggerated or untrue. I
would just say to you that I have no information about this
matter. I have not been in on the classified briefings and am
not a Member of the Intelligence Committee, and so I am just
not able to give you any comment on it at this time.
Senator Franken. Okay. Totally fair.
Last week, Julian Assange, the founder of WikiLeaks,
claimed that the Russian government was not the source of the
hacked emails WikiLeaks published during the campaign. Now,
Assange did not identify his source, nor did he say whether his
source worked with or received information from the Russians.
But again, American intelligence agencies have concluded the
Russian government directed the hacking operation. Nonetheless,
immediately following that interview, President-elect tweeted,
``Julian Assange said a 14-year-old could have hacked Podesta.
Why was DNC so careless? Also said Russians did not give him
the info!''
Senator Sessions, does it concern you that our future
Commander-in-Chief is so much more willing to accept what
Julian Assange says instead of the conclusions of our
intelligence agencies, and why do you think President Trump
finds Assange trustworthy?
Senator Sessions. Senator Franken, I am not able to answer
that. I have not talked to the President-elect about any of
these issues. It is often inaccurate, what gets printed in the
papers.
Senator Franken. Well, back in 2010, back when WikiLeaks
was publishing stolen American diplomatic cables and military
secrets, you voiced concern about the Obama administration's
response. You said that WikiLeaks publishing sensitive
documents should be ``pursued with the greatest intensity.''
You said, ``The President from on down should be crystal clear
on this, and I haven't seen that. I mean, he comes out of the
left, the anti-war left. They've always glorified people who
leak sensitive documents. Now he's the Commander-in-Chief, so
he's got a challenge.''
President-elect Trump, by contrast, said, ``WikiLeaks, I
love WikiLeaks.'' Do you believe that by holding up Julian
Assange, who traffics in leaked and stolen documents, often
classified documents, as a legitimate source of information
that President-elect Trump is glorifying people who leak
sensitive documents?
Senator Sessions. Well, I would say this, that if Assange
participated in violating the American law, then he is a person
subject to prosecution and condemnation.
Senator Franken. Well, we know that in regard to what he
did in 2010, and yet the President-elect said, ``WikiLeaks, I
love WikiLeaks.'' Does it not seem like perhaps if you were not
sitting before us today as an Attorney General nominee, and if
President Obama was publicly embracing Julian Assange, that
perhaps you might take a more critical view?
Senator Sessions. As a Member of the Senate, as you, and I
remain for, hopefully, not too much longer--depends on you and
your colleagues--but I feel it is a lot easier to be vigorous
and outspoken. But it is different as you begin to think about
the awesome responsibility of serving as an Attorney General,
with the possibility of having to handle certain cases. You
need to be more cautious about what you say. So I think it is
just not appropriate for me to be the person for you to seek
political responses from.
Senator Franken. Okay. I am out of time. I will try to
stick around for one more quick round.
Chairman Grassley. Okay. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman.
Mr. Sessions, thank you for your endurance today.
Senator Sessions. Thank you.
Senator Cruz. Let us turn to a different topic, one that
has been addressed some in this hearing but one that I know is
a particular passion of yours and one on which you have built a
remarkable record, and that is immigration. I want to focus in
particular on the problem of criminal aliens in the United
States and this administration's non-enforcement of the laws,
and take a moment just to review some of the numbers, which you
know very well but I think it is helpful to review for those
watching this hearing.
We have had an administration that consistently refuses to
enforce our immigration laws, so in October 2015, I submitted
that there were 929,684 aliens present in the United States who
had been ordered to leave the country but who had not done so.
Of those over 929,000 aliens with removal orders, 179,027 had
criminal convictions. In addition to the 179,027 criminal
aliens with final orders of removal, there were at least
194,791 known criminal aliens who were at the time in removal
proceedings. We also know that 121 criminal aliens released by
ICE between fiscal year 2010 and 2014 went on to commit
homicides, and between Fiscal Year 2009 and Fiscal Year 2015,
ICE released 6,151 aliens with sexual offense convictions from
its custody.
My question for you, Senator Sessions, is can you commit to
this Committee and to the American people that as Attorney
General you will enforce the laws, including the Federal
immigration laws, and you will not be releasing criminal
illegal aliens into the public, especially those with violent
convictions, such as homicide or sexual assault convictions?
Senator Sessions. Senator Cruz, you and I have talked about
this and you know that I believe we have failed in dealing with
criminal aliens. President Obama set that as a priority, but I
do not think they have been as effective as needed. I believe
that should be increased and stepped up. The actual policies,
as you know, are Homeland Security policies. The Secretary of
Homeland Security will determine those policies. There are ways
in which the Department of Justice can fulfill a role in it,
but the overall policies and priorities would be set by
Homeland Security.
I just believe that as we go forward and reduce the flow of
illegal immigrants into America, then there are fewer people
illegally per investigative officer and you get a better
handle--you are in a virtuous cycle instead of this dangerous
cycle that we are in today where things tend to get worse. So I
believe we can turn that around. This is one of the policies
that has to be given priority. Donald Trump has also said that
he believes criminal aliens obviously should be the top
priority, and I believe this Government will work effectively
to deal with it. I would do my part.
Senator Cruz. You know, there are few issues that frustrate
Americans more than the refusal to enforce our immigration
laws. Not too long ago, I was down on the border in Texas
visiting with Border Patrol officials, visiting with law
enforcement, local sheriffs. I will tell you, it was after the
election and there was a palpable sense of relief, that finally
we would have an administration that did not view the laws as
obstacles to be circumvented, but rather an administration that
would be willing to enforce the laws on the books and stop
releasing criminal aliens in communities where the citizens are
at risk.
One of the most tragic instances that we are all familiar
with is Kate Steinle, beautiful young woman in California who
lost her life, who was murdered, by a criminal illegal alien
who had seven prior felonies, and yet over and over and over
again the system failed and young Kate Steinle lost her life in
her father's arms, saying, ``Daddy, please save me.'' You and I
are both the fathers of daughters and I cannot think of a more
horrific experience than having to hold your daughter at that
moment of agony.
Can you share--this has been an issue you have been leading
for so long. Can you share your perspective as to the
responsibility of the Federal Government to keep the American
people safe and not to subject the American people to murderers
and other repeat felons who are here illegally, not to release
them to the public?
Senator Sessions. Senator Cruz, you touched on the right
issue here. First and foremost, the immigration policy of the
United States should serve the national interest, the people's
interest. That is what an immigration system should do.
Number two, under the laws and world agreements, when a
citizen from a foreign country is admitted by visa to the
United States and commits a deportable act or otherwise needs
to be removed, that country has to take them back. When they
cease to do that, then you have a serious breach of collegial
relations between the two countries. No country, particularly
the United States, should ever allow in so many individuals who
committed crimes here, often when they entered illegally, and
not even coming on a lawful visa. They need to be deported
promptly. The reluctance of carrying this out is baffling to
me. It should have total bipartisan support. It is said that it
does, but somehow it is never accomplished. So it is very, very
frustrating. The basic summary of that is, it is perfectly
proper, decent, and correct that this Nation not allow people
who come here on a visa or illegally to remain here after they
have committed crimes.
Senator Cruz. Well, thank you, Senator Sessions. As you
know, I have introduced legislation in the Senate, Kate's Law,
which would provide, for those who illegally re-enter with a
violent criminal conviction, a mandatory 5-year prison
sentence. This past Senate that failed to pass. It is my hope
that Congress will pass that legislation and give additional
tools to the administration to keep the American people safe.
Let me turn to one additional aspect of illegal
immigration, which is the national security component of it.
Since August 2015, you and I have joined together to send three
separate letters to the Departments of Justice, Homeland
Security, and State, as well as a letter to the President,
seeking information on the immigration histories of individuals
who have been convicted or implicated in a terrorist attack in
the United States, and over and over again the current
administration has stonewalled our efforts as Senators to get
basic facts that I think the American people are entitled to.
You and I were able to piece together from the public
record that at least 40 people who were initially admitted to
the United States as refugees were subsequently convicted or
implicated in terrorism, and more broadly, of a list of 580
individuals who were convicted of terrorism or terrorism-
related offenses between 2001 and 2014, at least 380 were born
in foreign countries, many from terror spots in the Middle
East, Africa, and Central Asia. Of the 198 U.S. citizens you
and I were able to find on that list, at least 100 were born
abroad and subsequently naturalized.
As I mentioned, the administration has stonewalled us. Will
you commit to work with this Committee to provide the data that
we have been seeking, that I think the American people are
entitled to know, of those who are committing terror plots
against us, how many are coming in through a broken immigration
system, through a broken refugee system, and to working with
this Committee to prevent that from happening in the future to
keep the people safe?
Senator Sessions. I would do that. I do believe that is a
Homeland Security's primary responsibility, but it was a bit
frustrating because what those numbers tend to indicate is that
it is not true that refugees do not commit terrorist acts.
There is a danger, even in the refugee population, and good
vetting is critical in that process.
Senator Cruz. Thank you, Senator.
Chairman Grassley. Senator Coons.
Senator Coons. Thank you, Mr. Chairman.
Senator Sessions, if I might, I would like to take us to an
area I do not think has been explored much today, but of grave
concern to me, which is disability rights, another area where,
if confirmed as Attorney General, you would be charged with
protecting among the most vulnerable Americans and those whose
rights have only recently been fully recognized and enforced.
You have previously said that the IDEA, which provides for
access to education for those with intellectual disabilities,
creates ``lawsuit after lawsuit, special treatment for certain
children, and is a big factor in accelerating the decline in
civility in classrooms all over America.'' In a different
setting, you were critical of the Supreme Court's decision in
Atkins v. Virginia in 2002 which held that executing
individuals with intellectual disabilities violates the Eighth
Amendment. In a floor speech 6 days later after that ruling you
said that you were ``very troubled'' by the Court telling
States ``they could not execute people who were retarded.'' If
a State was scheduled to execute someone with intellectual
disabilities, would you insist on the Justice Department now
taking vigorous action to stop it? And given your previous
comments about the IDEA, do you still believe it unfairly
benefits some children and hurts others?
Senator Sessions. We made real reform in IDEA. I led that
effort. We ended up having the vote of Hillary Clinton and Dick
Durbin, Senator Durbin. We worked on it very hard and I was
very pleased with the way it worked out. It was true that the
IDEA community pushed back against the reforms I was proposing,
but in the end I think it worked out fine.
The reason was that the burden was on the school systems. I
was in a Blue Ribbon, great little school in Alabama on the
first day of school and the principal told me, it is now 3; at
5, I will go to a meeting with lawyers and parents about a
child on whether or not they will be in the classroom all day
or half a day, and the child had serious disabilities. So he
said, I am trying to get this school up and running and I am
having to spend this extraordinary amount of time on this. So
we created a legal system that made it better and the schools
got a little more deference in being able to monitor it, and it
was a big issue. It was a disruptive force in big-city schools
in New York and Chicago and other places like that.
So on the question of intellectual disabilities, I suppose
we can disagree, as a matter of policy. Perhaps I was
questioning the legal mandate. But a person with intellectual
disabilities, that should be considered as a factor in the
sentencing jury or the judge's opinion before they go forward.
But obviously if a person knows the difference in right and
wrong, historically they would be held to the same standard,
even though their intellectual ability would be less.
Senator Coons. Let me revisit a question about consent
decrees that Senator Hirono was asking about previously,
because consent decrees have been used in this area, in
disability rights, to make sure that folks with intellectual
disabilities have access to services and education, but also in
policing.
Police chiefs and elected officials, as we have spoken
about, in communities across the country have in some cases
invited DOJ to open civil rights investigations of their police
departments and have invited them to enter into consent decrees
in order to implement reforms to law enforcement in order to
make sure that they improve the quality of police-community
relations and respect for civil rights.
Do you plan to continue to assist cities with these
investigations when asked, if Attorney General, and under what
circumstances would you commence a civil rights investigation
of a law enforcement agency that may have violated Federal law?
Senator Sessions. Well, those are difficult questions for
me to answer explicitly today, but I would note on the consent
decrees or the language Senator Hirono quoted, that my
statements were simply part of the foreword to a booklet.
Consent decrees have been criticized in a number of areas.
I am not familiar with how they have worked out in the
disabilities arena, but with regard to police departments, I
think it is a good thing that a police department might call on
Federal investigators and a team to work with their police
department to identify any problems and to help select remedies
that the community might feel were more valid because the
Department of Justice validated them and agreed to them. So, as
I think you and I talked, it really is important that the
people trust the police departments and the police departments
have respect from the communities. When you do not have that,
people's safety is at risk.
Senator Coons. Well, I hope we can find ways to continue to
work together to combat violent crime and to improve police-
community relations.
Let me just briefly ask you about trade secret theft and
intellectual property, something we have also talked about.
There is a significant problem for American inventions,
companies, entrepreneurs, of having their innovations stolen,
sometimes by cyber hack, by intrusions, sometimes physically
through industrial espionage. The Obama administration has made
real progress in increasing enforcement and in going after
those who would steal America's inventions.
Is that something that you would intend, to continue
vigorous enforcement to protect American inventions?
Senator Sessions. I do. I think a lot of that may be
through the U.S. Trade Representative, it could be done through
the Commerce Department and other departments, and the
Department of Justice may have a role----
Senator Coons. It does.
Senator Sessions [continuing]. In criminal activities or
civil enforcement. I would not say for certain what that role
would be at this point, but my view, as you and I have talked,
is that you are correct about this. When we enter into a trade
agreement with a foreign nation, we have to understand that it
is just a simple contract and we will comply, we will deal with
you on this basis, and if a party to that contract is not
acting honorably, then you have every right to push back.
And if it ultimately means you have to pull out of the
agreement, then you pull out of the agreement if it is serious
enough. I do not think we have been as aggressive as we should
have been in those agreements.
Senator Coons. Let me ask one last question, if I may, Mr.
Chairman. I just wanted to reflect on something you said in
your opening, and something we have talked about. You were born
in Selma, roughly 70 years ago. I have been to Selma several
times with Congressman Lewis and a number of others, and last
year many of us joined Congressman Lewis for the 50th
anniversary of that famous march across the Edmund Pettus
bridge when he faced violence and the response--the conscience
of the Nation was stirred by this horrible event, and it
spurred Congress to pass the bipartisan Voting Rights Act.
There has been a lot of questioning back and forth about
your comments about whether the Voting Rights Act was intrusive
in the Shelby County decision, and I just wanted to make sure I
came back to an important point, which was that Senator Leahy
and I, and a number of others, tried hard to find Republican
partners to advance the Voting Rights Advancement Act, which
would have replaced the now 50-years-old, roughly, preclearance
formula with a new one that would be national in scope, would
not disadvantage any region, and would be simply based on
enforcement actions.
Previous questioning by, I think, Senator Franken and
others focused on recent enforcement actions, the Fourth
Circuit finding that North Carolina's post-Shelby voter ID law
violated the law because it targeted African Americans. You
said in your opening statement that you witnessed the civil
rights movement as it happened near you, that you witnessed the
depredations of segregation. In a ceremony last year during the
presentation of the Congressional Gold Medal to the foot
soldiers of the civil rights movement, you said, ``I feel I
should have stepped forward more.''
What more do you think you perhaps could have done, or
should have done, in recent years as a Senator to take more
active action so that folks from around the country could have
confidence in your commitment to continuing the journey of
civil rights in this country?
Senator Sessions. Well, I do not think we have to agree on
everything. Just because you think this was a necessary thing,
you may be right, and if I do not think so I do not know that I
am necessarily wrong. I would say that I did sponsor the
Congressional Gold Medal Act that gave the Gold Medal to the
Selma and Montgomery marchers with Senator Cory Booker. We were
the two lead sponsors on it.
I was at that event and have a wonderful picture I cherish
with John Lewis and other people on the bridge, celebrating
that event. It changed the whole South. African Americans were
being discriminated against systematically in voting. They were
being flatly denied, through all kinds of mechanisms, and only
a very few in many instances were allowed to vote, if any. So
this was an unacceptable thing. As I said at the hearing in
1986, I was asked about it being intrusive. Please, Senator
Coons, do not suggest in any way that that word means that I
was hostile to the act. I said then and I say now, it was
necessary that the act be intrusive because it had to force
change, and it would not have happened without the power of the
Federal Government. That is a plain fact.
Senator Coons. Senator, what I am suggesting is an
alternative path forward for the Voting Rights Act that would
not have been singling out one region or one State or one
history, but that would have allowed the Voting Rights Act to
continue to be effective in the face of the recent record
showing ongoing discrimination, ongoing denial of the right to
vote in different States across the country, now no longer
isolated to the South. When presented with an opportunity to
continue and strengthen the Voting Rights Act post-Shelby, you
did not take that step.
Senator Sessions. Well----
Chairman Grassley. Senator Sessions, if you need to answer
that, go ahead and answer it.
Senator Sessions. I will be short.
Chairman Grassley. I want to go to Senator Blumenthal.
Senator Sessions. As I said, I supported the
reauthorization of the Voting Rights Act with Section 5 in it.
When the Supreme Court said it was no longer necessary that
Section 5 be in it, I did not support the language that you and
Senator Leahy offered that would basically put it back in. So I
do not apologize for that. I think that was a legitimate
decision.
With regard to the question of voter ID, I am not sure it
has been conclusively settled one way or the other whether a
properly conducted voter ID system is improper and
discriminatory. Indeed, the Supreme Court has held that voter
ID is legitimate, at least under certain circumstances.
Chairman Grassley. Okay. Before Senator Blumenthal, I have
another thing that has come to our attention, so I would put
this in the record without objection, a letter that we received
from some lawyers about the IDEA issue. These lawyers litigate
cases on this issue. They say certain stories about the issue
took Senator Sessions' comments out of context, and then they
go on to note that Senator Kennedy and others later reached an
agreement with Senator Sessions on the issue.
[The letter appears as a submission for the record.]
Chairman Grassley. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman.
Senator Sessions, I want to pursue this conversation about
voting rights. In October 2015, there was a report, widely
reported, that the State of Alabama intended to close a number
of DMV offices. Congresswoman Terry Sewell wrote to the
Attorney General, Loretta Lynch, urging an investigation,
stating, I am quoting, ``This decision will leave 8 out of 10
counties with the highest percentage of non-White registered
voters without a Department of Motor Vehicles, DMV, to issue an
Alabama driver's license.'' She noted that, ``an estimated
250,000 Alabamians who do not have an acceptable form of photo
identification to cast a ballot.''
As you know, subsequently the Department of Transportation
initiated an investigation under Title VI of the Civil Rights
Act, and that year-long investigation found that Alabama's
conduct caused ``a disparate and adverse impact on the basis of
race.'' Did you believe, or do you believe now, that it was a
problem that 250,000 estimated citizens of your State did not
have the requisite ID to vote?
Senator Sessions. There is a system, I understand, that
makes those IDs available. The driver's license offices were
part of a budget-cutting process within the State, which I had
absolutely nothing to do with, and did not know about until it
was done. And they claim that they were simply identifying the
areas with the lowest population and trying to do some
consolidation and trying to make the system more efficient and
productive.
It was later that these objections arose, and they have
reversed that, I believe. So that is the way that went. I hope
there was no intent at the time to be racially insensitive, but
indeed many of the closures were in counties with large
African-American populations.
Senator Blumenthal. Did you believe then that there was a
problem in denying 250,000 people an access to photo
identification they needed to vote?
Senator Sessions. Well, it did not deny 250,000 people the
right to vote. That would be utterly wrong and should be
stopped immediately. But in this instance, it might have
required people to go to the closest driver's license office in
the next county which might be closer for you to go to than the
one that was closed. But it was, in general, perceived as
detrimental to African Americans, and included within that
detriment was the possibility of an ID for voting. So you are
correct. It was controversial, and it was fixed.
Senator Blumenthal. Did you agree with the Department of
Investigation finding that it had an adverse and disparate
impact on people on the basis of race?
Senator Sessions. Oh, I have never expressed an opinion
upon it and I never studied that issue in depth. But apparently
somebody must have agreed, because it was changed.
Senator Blumenthal. Did you agree with that conclusion?
Senator Sessions. Well, yes; I was happy that that solution
was reached, yes. Very much. You know, we should remember those
things as we move forward, setting policy, what kind of
ramifications it could have. I do not think they had voting on
their minds at all, but it could impact voting to some degree,
for sure.
Senator Blumenthal. But you took no action at the time? You
expressed no conclusion at the time, despite what was found to
be a disparate and adverse impact on voting rights of 250,000
members of the citizens of your State?
Senator Sessions. Well, they did not ask my opinion before
they did it, and it was purely a State matter. And I did not
actively intervene, you are correct.
Senator Blumenthal. I want to ask you about the DACA young
people, the DREAMers, who have submitted information to the
Federal Government about their whereabouts, their identities, a
lot of personal details. And I know that your response, I think
to a question about it, was that Congress must act.
But would it not violate fundamental fairness, whether due
process or some standard of constitutional due process, to use
that information, in fact, against them? Obviously, we are not
talking about a criminal proceeding, so there is no double
jeopardy. But I guess I am asking for your commitment, as a
prospective Attorney General, your respect for the
Constitution, to make a commitment that those young people will
not be deported, that you will continue that policy that has
been initiated.
Senator Sessions. Certainly you are correct that that
cohort of individuals should not be targeted and given priority
anything like that which should be given to criminals and
people who have had other difficulties in the United States--
those who have been ordered deported and had final orders of
deportation. I understand what you are saying there. I think,
until I have had a chance to think it through and examine the
law and so forth, I would not opine on it myself.
Number two, importantly, this is a policy of Homeland
Security. They have got to wrestle with the priorities of their
agents, how they should spend their time, and try to do that in
the most effective way. So General Kelly will have to think
that through. Simply, if some matter were litigated, we would
try to be supportive of the litigating position, if possible.
But it is really a Homeland Security question.
Senator Blumenthal. I understand that Homeland Security may
be involved, but ultimately, orders to deport are the
responsibility of the Department of Justice to enforce. You are
the nominee to be the Nation's chief law enforcement officer.
And more importantly, in some sense you are a source of the
Nation's conscience, legal conscience. And so I am asking you,
as a prospective United States Attorney General, whether your
conscience would be violated by using information submitted in
good faith, by countless young people who have been in this
country since infancy, many of them, and who trusted the
Government of the United States of America to give them the
benefit of that policy articulated by the President of the
United States.
You may have disagreed with that policy, but the submission
of that information in good faith on the basis of
representations by the United States of America, it seems to
me, involve a prospective commitment on your part in
representing the United States of America.
Senator Sessions. Well, you make a good point, and that is
a valid concern. I know of no policy that would suggest that
something like that would be done, and I would not push for it.
But ultimately the decision would be made by the Homeland
Security Department. They decide their priorities for
enforcement. I would not want to be in a position to say they
would never be used, and I cannot make that commitment today. I
have not thought it through as to what laws might be
implicated. But if somebody were a terrorist or had other
criminal gang connections, could you never use that
information? I do not know. I am just not prepared to answer
that today. It may not be possible to use it.
Senator Blumenthal. Well, I recognize, Mr. Chairman, my
time is up. But I will pursue this line of questioning again,
because I feel I am midway through a number of questions.
Thank you, Senator.
Chairman Grassley. Before I call on the Senator from
Hawaii, I would like to note that Pat Edington, former vice
chair of the Alabama Democratic Party, wrote to our Committee
in support of this nomination. Mr. Edington says, ``I truly
hope our party will not make this vote on party lines, but
instead vote on the man.'' Quote again, ``I have known him for
approximately 40 years, and while we have had our policy
differences, I know his instincts are fundamentally humane and
just.'' I will, without objection, enter that in the record.
[The letter appears as a submission for the record.]
The Senator from Hawaii.
Senator Hirono. Thank you, Mr. Chairman.
Our Muslim-American community is gravely concerned about
what a Trump presidency would mean for them. So can the Muslim
Americans count on you, as Attorney General, to protect their
constitutional and civil rights?
Senator Sessions. Yes.
Senator Hirono. Thank you. Very reassuring.
[Laughter.]
I had asked you earlier about consent decrees, to relate to
police departments. I have a question along those lines, but it
involves another part of civil rights. In 2015, a Federal
district court in Alabama, your State, approved a consent
decree order filed by the Department of Justice in the
Huntsville City Schools case. And this was a school
desegregation case.
A number of other school districts throughout the country
are under desegregation orders. Would you commit to maintaining
and enforcing those decrees?
Senator Sessions. Those decrees still remain in effect in a
number of districts. Huntsville is a very strong, healthy, and
well-managed school system. I believe they have good
leadership. But a consent decree remains in effect until it is
altered by the Court.
Senator Hirono. So your answer is----
Senator Sessions. They would be enforced until there is an
alteration of it, yes.
Senator Hirono. Thank you. I have a question about violence
and the increasing number of threats against providers of
health care services and abortion services to women.
Since the November election, the number of threats online,
many of them online, against the providers have more than
tripled. Given the increasing numbers of violence targeting
abortion providers, how high of a priority will it be for you
to prosecute violence targeting abortion providers under the
Freedom of Access to Clinic Entrances Act?
Senator Sessions. They deserve the same protection that any
entity--business or otherwise--is entitled to, when people
violate the law and carry out improper threats or blockades of
their business.
Senator Hirono. Well, where there is----
Senator Sessions. Even more so, because we have a specific
law about abortion clinics, I believe.
Senator Hirono. Yes. So there is a specific law that
Congress passed that protects access to these clinics and where
there is evidence of increasing number of threats of violence,
I hope that that gets on your radar screen as a priorty for
enforcement.
Senator Sessions. As the law is to be applied, yes. I do
not know exactly how the threats are worded, but if it is
improperly done, they can be subject to criminal prosecutions
and they would be evaluated properly, in my administration.
Senator Hirono. And certainly where Congress cared enough
about this particular area of access, that I hope that you
would have a commitment to making sure that that law is being
enforced in the way that we intended.
Regarding birthright citizenship, people born in this
country are U.S. citizens, regardless of the citizenship status
of their parents. And there are those who argue that that is
not enough to confer citizenship.
Do you believe that there should be more required to become
U.S. citizens?
Senator Sessions. Well, under the current state of the law,
it is accepted that they do obtain their citizenship. There are
two obstacles to changing that. One would be congressional
enactment, I believe, to change it, and even that congressional
action could be construed as violative of the Constitution and
not be a constitutional act. I have not reviewed the details of
that. I do know there is some dispute about whether or not the
Congress could change that status.
Senator Hirono. But it is certainly not anything that, in
the order of priorities, that you would pursue as Attorney
General to ask Congress to change the law to require more than
being born in this country to confer U.S. citizenship?
Senator Sessions. I would be focusing my attention on
enforcing the laws that exist, and I guess it would be
Congress' duty to wrestle with whether to change it or not.
Senator Hirono. On turning to a change in the law that came
about after the Lilly Ledbetter case, the Lilly Ledbetter Act,
and I know you are familiar with the factual circumstance in
which Lilly Ledbetter did not know that she had been given
disparate pay--that was illegal. She did not find out about it,
and the Supreme Court said you only have 180 days in order to
find this out, in order to have your day in court.
So Congress had a bill which you voted against, and I am
wondering why you voted against that bill. Because in making
that decision, the Court basically abrogated years and years of
legal precedent. It was a surprise to a lot of us that suddenly
they were imposing 180-day, you-must-know kind of a
requirement.
But you voted against that bill. Can you tell us briefly
why?
Senator Sessions. We had a hearing on it in the Judiciary
Committee. A number of witnesses testified, and the testimony,
as I understood it, was that she did in fact have notice, that
the Court found that she had notice, and that is why they held
that the statute of limitations was enforced.
You need a statute of limitations of some kind, and if they
do not know, then you can allow it to continue indefinitely.
But as I understood it, that was the ruling. So it was less
problematic for future cases than was discussed, but my
recollection is not perfectly clear on that issue. That was one
of the factors I remember being involved in my decision.
Senator Hirono. My recollection of the holding in that case
is different from yours, because often in these pay
discrimination cases, unlawful pay discrimination, the victim
is not aware and has no way of finding out that such
discrimination is occurring. And that is why the law made it
very clear that every instance of a disparate paycheck would
constitute a new violation, and that is all this bill did.
Otherwise, the Lilly Ledbetters of the world would really be--
would be foreclosed from their day in court.
So you obviously have a different understanding of the
holding of the case.
Senator Sessions. My memory is not that good. But if you
have explicit notice, hypothetically, should every paycheck for
the next 20 years restart the statute of limitations? So that
was the legal question. However, my recollection is not
perfect.
Senator Hirono. I was very concerned about that case, and
so I would say that perhaps my recollection of the holding is
more accurate than yours.
Let me turn to corporate wrongdoing. When I just met with
you, you indicated that nobody is above the law. And there is,
I think, an ongoing investigation on the part of the Department
of Justice what Wells Fargo did in basically defrauding
millions of their customers.
So would you continue to pursue this kind of investigation,
and would you also hold accountable individual corporate
officeholders should there be found to have been a violation of
law?
Senator Sessions. Corporations are subject as an entity to
fines and punishment for violating the law, and so are the
corporate officers. And sometimes it seems to me, Senator
Hirono, that the corporate officers who caused the problem
should be subjected to more severe punishment than the
stockholders of the company who did not know anything about it.
Senator Hirono. That could not agree with me more.
Thank you, Mr. Chairman.
Chairman Grassley. Senator Franken, you said you had one
more question you wanted to ask?
Senator Franken. Could I ask two?
Chairman Grassley. Go ahead.
Senator Franken. By the way, Chairman, I must compliment
you. You have deferred your time to us all, and I thank you.
Chairman Grassley. I have not given it up. I have just----
Senator Franken. No, you deferred it.
Chairman Grassley. Please proceed. You are taking time.
[Laughter.]
Senator Franken. Okay.
Senator, I would like to briefly return to something you
said earlier about your opposition to VAWA and our courtesy
visit. The second item of substance that we discussed was
violence against Native women. I told you how important the
issue is to me and to Tribes all over the country, and they
have highlighted that for me time and time again. And when I
provided you with a statistic demonstrating just how prevalent
violence against Native women is and at the hands of non-
Indians, you expressed shock and said that you did not realize
the extent of the problem.
Over 84 percent of Native women experience domestic or
sexual violence, and over 97 percent of them are victimized by
non-Indians. That is a recent stat. But in 2012, all you had to
do was talk to one Tribe, and you would have learned that women
in Indian Country are regularly abused by non-Indians, who go
unprosecuted and unpunished.
If you take the issue of domestic and sexual violence
seriously, I think it is incumbent upon you to visit at least
one Tribe. I think Alabama has nine Tribes that are recognized
in the State, is that correct?
Senator Sessions. Well, I believe, only one Tribal group
that has properties on Tribal lands.
Senator Franken. The Poarch?
Senator Sessions. Poarch Creek. Used to be in my district;
I have had good relations with them. Been on that small Tribe's
lands a number of times and visited their clinics.
Senator Franken. Okay, good. Well, I would--if you are
Attorney General--and even if you are not, but certainly if you
are Attorney General, when you are back home you might take
some time to talk with them about this issue. Earlier, you told
Senator Hirono that you cannot commit to not challenging VAWA
on these grounds. But you have also admitted that you did not
understand the gravity of the problem of violence against
Native women when you voted on it in 2013, or the extent of
non-Indian violence.
Would you just commit to me to spending a little bit of
time with the Poarch Tribe? Thank you. That would be good.
Senator Sessions. They have been supportive of me.
Senator Franken. Thank you.
I want to talk about one last thing.
Chairman Grassley. You have got one more question.
Senator Franken. Thank you. Thank you, Mr. Chairman.
The day before the election, Candidate Trump came to my
State for his only rally during the campaign. And let me tell
you what he said. He was standing before a large crowd, and he
accused Democrats of planning to ``import generations of
terrorism, extremism, and radicalism into your schools and
throughout your communities. Here in Minnesota,'' he said,
``you have seen firsthand the problems caused with faulty
refugee vetting and large numbers of Somali refugees coming
into your State without your knowledge, without your support or
approval, and with some of them joining ISIS and spreading
their extremist views all over our country and all over the
world.''
I cannot begin to tell you how angry those comments made
me, to see Candidate Trump hold his only rally in Minnesota at
an airport where about a thousand Somalis, immigrants, work--
Somali Minnesota immigrants--work and earn--well, refugees,
really. And to stoke that kind of fear and hatred was an
insult, I believe, to every Minnesotan. It was offensive, it
was irresponsible, but it was not really surprising. Candidate
Trump made scapegoating immigrants and refugees and banning
Muslims from entering our country a centerpiece of his
campaign. Now, some of his advisers tried to spin or walk back
his comments on the so-called Muslim ban, but you, Senator, no,
you said that the idea was ``appropriate to discuss.''
In June you said, ``We must face the uncomfortable reality
that not only are immigrants from Muslim-majority countries
coming to the United States, radicalizing, attempting to engage
in acts of terrorism, but also their first-generation American
children are susceptible to the toxic radicalization of
terrorist organizations.''
You said that our Nation has an ``unprecedented
assimilation problem.'' You know, Senator, part of what makes
that assimilation challenging is when people seeking to lead
this country exploit fear and anxiety and redirect that fear
toward our immigrant and refugee communities.
Right after the election, my office got a call from a
middle school teacher in St. Paul. Her school has a very
sizable population of Somali-Americans, Somali-Minnesotan kids.
Now, they are smart kids, so they have been paying attention to
the election, and they were terrified. The teacher called my
office and said, please, please have Senator Franken come to
the school and give them some assurance. These kids did not
know what to make of a country, their country, electing a
leader who describes them and their families as worthy of
hatred and suspicion. So I did my best to alleviate their fears
that day. I told them, ``You are Americans.'' I said, ``You
kids, you are Americans. Do not be afraid.''
A couple of weeks later, I talked to the French Ambassador
to the United States. I said to him, ``Who is defined as a
Frenchman in France?'' And he said, ``Somebody who can trace
back a couple of centuries to their family in a French
village.'' Well, these kids are Americans, and we consider them
American. And what we saw in Paris and what we saw, which was
caused by Belgians, is because they take that attitude in
Europe. We do not take this attitude, and it is dangerous to
take it.
One of the most beautiful events I have been to was the
graduation--high school graduation, Wilmer, Minnesota, in June.
I invited myself there because one of our pages, our Senate
pages, was from Wilmer and she is Somali. A Somali Minnesota
girl. When I saw her on Election Day, I was at the University
of Minnesota; she graduated and went to the University of
Minnesota. She told me her sister, her younger sister, was
named the Wilmer Homecoming Queen. In Europe, they do not
assimilate people. Here in the United States, we vote them
Homecoming Queen.
Thank you.
Chairman Grassley. Senator Tillis.
Senator Sessions. They are Americans.
Chairman Grassley. Senator Sessions, if you want to
respond, go ahead.
Senator Sessions. Well, I think Senator Franken makes some
important points, and I appreciate his comments.
Senator Franken. Thank you.
Chairman Grassley. Senator Tillis.
Senator Sessions. Although I do believe my comment was
unrelated to the event in your State.
Chairman Grassley. Senator Tillis, you are entitled to 10
minutes--first round, but you do not have to use it all.
[Laughter.]
Senator Tillis. I have learned nothing else except to
understand what the Chairman means when he says that.
Chairman Grassley. I want to do my second and third round.
Senator Tillis. No, Mr. Chair, I am not going to take long.
And Mr. Chair, you know, and Senator Sessions, I think that you
know that I was in Tennessee today for the proud moment of
seeing my brother sworn in to the legislature. However, I got
up and watched the opening comments, your opening comment. You
did an extraordinary job. And to be honest with you, I think
you have demonstrated more stamina today than the Crimson Tide
did last night against a worthy adversary.
But Senator Sessions, I am not going to ask a lot of
questions. I am going to tell you I thank you for your
leadership. I think you and I have talked about this before,
but I want to thank you again publicly about your leadership as
a balanced chair and I think, as the late Arlen Specter said,
an egalitarian.
I have seen you sit on the Immigration Subcommittee, and
you have seen me come to every one of those meetings and you
know you and I have a difference of opinion on that matter.
What is remarkable about you is you bring balanced panels to
discuss the issue so that both sides can be heard, and you
never, ever hesitated to let me speak as long as I want to,
which I am sure was a lot longer than you wanted me to. And I
really appreciate your leadership, because that is what is
missing oftentimes up here in the Senate. And we are going to
miss you, and I am going to look forward to voting for you and
for your confirmation.
I asked the same question of the Attorney General that was
before this Committee two years ago, and I want to ask you
because it is very important to me. I think the Department of
Justice has issues. I think that the Inspector General's report
is a good example, back in 2014, when I simply said, an
Inspector General's report that says that they need to increase
accountability in the Department of Justice--and I will get to
a specific question in a minute--that we should act on it. I
got a non-answer to that question. In fact, I got a better
answer to a deputy who came back in, which is why I supported
the deputy and I did not support the AG nominee.
Could you tell me if you have had an opportunity to take a
look at those recommendations and to what extent those
recommendations would be instructive to you, now that you have
become the--when you become the Chief Executive of that agency?
Senator Sessions. I am glad you raised it and I hope you
will stay on the Department of Justice to respond to it. I have
not studied it. Some time ago, I believe, I had a briefing on
the nature of it, but it does appear to me to raise fundamental
questions about the good management of the people's money. That
money needs to be managed effectively--every single dollar--to
get positive results, not wasted. And I will be glad to hear
any suggestions you have and it will be a priority of mine.
Senator Tillis. Thank you.
Senator Sessions. In fact, you are the third person that
has raised it, and so I think what we need to do, and I will
do, is an immediate analysis of it if I am so fortunate as to
be confirmed.
Senator Tillis. Thank you, because we will be following up
on it. This is something that I think is very important to me.
And really a specific question in that regard, I hope you will
look at it, and when you get confirmed, make it a priority to
look into.
As a part of the report, I believe it was said that some
DOJ employees engaged in prosecutorial misconduct and perjured
themselves in court. If you find that to be substantiated, what
would you do with the people in the DOJ who were guilty of such
actions?
Senator Sessions. The Department of Justice is a great
institution. Most of the people are people of the highest
character and ability.
Senator Tillis. Without a doubt.
Senator Sessions. However, we have had a series of problems
over time that seem to me to be worthy of concern, broadly. And
I think it would be important for the next Attorney General to
try to revitalize and re-emphasize the absolute commitment that
a Federal prosecutor must have to do justice and not just win a
case.
And also, it is hard for lawyers in Washington who get sent
out to the field to try a big, important, high-profile case;
they do not know the community very well. Maybe they have not
tried as many cases as a United States Attorney in the field
that does that every day. Things can go wrong. We need to do
better.
Senator Tillis. Well, I thank you for that. Also, just by
way of comment, the Chair lifted a stack of letters that
remained unanswered by the current Attorney General and the
DOJ. He did cite that he expects you to respond, at least to
the one that you signed, but I hope you will actually respond
to all of them. To the Chair's credit, not only from the Chair,
but from the Ranking Member and Members of this body who are
trying to make the DOJ the best it can possibly be.
Finally, I will just yield back the rest of my time after
saying that I watched--I probably watched a good 3 hours of the
proceedings today. I was struck at one point when some were
casting doubt about you in terms of your view of ethnicity and
a number of other backgrounds. What struck me the most about
that picture on TV was your wife's eyes welling up because she
and your son know you well. Many of us know you well. And I
think all of us know that you are going to make a great
Attorney General. You are a fair-minded man, and you are going
to obey the law. You will no longer be a lawmaker, which I know
from time to time is probably going to frustrate you. But I
have no doubt in my mind you will be one of the best Attorney
Generals; you will faithfully execute the law, you will enforce
the law, and you will do it in a fair and impartial manner. And
I cannot wait to see you in action.
Thank you, Senator Sessions. Thank you, Mr. Chair.
Senator Sessions. Thank you.
Chairman Grassley. Before we start the fourth round, I do
not think you have had your third round, Senator Sasse, so
proceed.
Senator Sasse. Thank you, Mr. Chairman.
Chairman Grassley. You have got 8 minutes. You do not have
to use it all.
Senator Sasse. Thank you for the counsel for a rookie. I
also did not think I could talk about college football, but
Senator Tillis already broke that bubble. Senator, Nebraska
1995 remains the best team in the history of college football.
I think we can all agree after last night.
[Laughter.]
Senator Sasse. I would like to ask you a question about sue
and settlement. I have heard from Nebraskans how regulations
are gamed by activists to try to change Federal policy through
lawsuits and settlements rather than through the making of law
in the Congress. Federal agencies and activist groups are often
assumed to have been sort of colluding to do this to circumvent
the Congress, and I am curious as to what you think when
plaintiffs and the Government enter into a settlement to try to
change policy.
What is the appropriate role of the Department of Justice
to make sure that that agreement does not circumvent the law
and the Congress and the Administrative Procedure Act?
Senator Sessions. The Department of Justice has final
settlement authority in any case against the United States,
although they can listen to and see their role as being
supportive of the agency. So if Homeland Security or the
Department of Education or EPA is being sued, they have the
power to make the final judgment, and their responsibility is
to protect the public interest, the national interest, and to
make sure the law is followed.
There has been in State court, and sometimes in Federal
court this sue and settlement, this consent decree that we have
been talking about. I pointed out that it is, at times,
controversial. So if the officials at the Environmental
Protection Agency believe that a law should be expanded and
they are sued by a group that wants to expand the law in the
same way, and if the Department of Justice goes along with the
agency and agrees to a settlement and gets a court to order
this to occur, then the Government is bound by their settlement
agreement. The democratic process is eroded because a decision
is being made by unelected people and not the legislature.
So you understand, and I think that was a fundamental part
of your question, I do believe a good Department of Justice
needs to be alert to that and should not feel obligated to
settle a case on the terms that any agency might think, but
make sure the settlement is legal and justified and in the
national interest.
Senator Sasse. And there have been occasions, there have
been reports that it has been the practice of DOJ at times to
force violators to make certain payments to approved third
parties as a condition of settlement. As a hypothetical, there
have been discussions about whether or not a bank that was,
again hypothetically, fined by the DOJ might see its penalties
reduced if it made payments to a designated not-for-profit.
When, if ever, is it appropriate for the Department of
Justice to require payments to any third party as a part of a
settlement?
Senator Sessions. I think that is a very dubious practice.
I would be cautious about it, and we would have to make sure it
is justified. And normally that is not the best way to settle a
case, in my opinion.
Senator Sasse. And, finally, the Judgment Fund that the
Department of Justice administers is a general fund that is
available to compensate those who sue the Government and win.
Unfortunately, how this money ultimately gets used is not fully
known by the Congress.
Will you commit to making public the use of these funds?
Senator Sessions. The funds that are not paid out or funds
that are paid out as part of a litigation?
Senator Sasse. In the Judgment Fund, the Department has the
discretion to determine how to settle these cases and what
payments to make. But the Congress and the public often do not
know where this money goes.
Would you commit, as Attorney General, to being transparent
with where the funds go out of the Judgment Fund?
Senator Sessions. I would be surprised if it is not public,
and it should be available to the public. They should know how
a lawsuit is settled and where the money went, absolutely.
Senator Sasse. Thank you, Senator.
Chairman Grassley. Before Senator Blumenthal follows up on
some things he wanted to, we received a letter in support of
Senator Sessions' nomination from 108 former U.S. Attorneys who
served under every President since President Nixon. They say,
``We have no doubt that Senator Sessions can do the job well,
bringing to this critically important office his own unique and
extraordinary strengths of courage, humility, experience, and
an inviolable promise to treat all people equally under the
law.''
Without objection, I will insert that in the record.
[The letter appears as a submission for the record.]
Chairman Grassley. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman.
Senator Sessions, in response to one of Senator Tillis'
questions, you said that the job of the Attorney General is to
do justice, not necessarily to win a case. And I think that is
almost an exact quote from Justice Jackson when he was United
States Attorney General. It is one of my favorite quotes. I
think he said the role of the United States Attorney or a
Government lawyer is to do justice, not necessarily win a
conviction. And that is why I feel that the role of Attorney
General ought to be the legal conscience for the Nation, as I
was remarking earlier.
So I hope that you will reconsider what you have said about
the DACA policies and assert an independent view based on the
Nation's conscience, or what it should be, about what has
happened to those young people. Likewise, on issues like
Deutsche Bank, which you and I have discussed privately, and
where I think there ought to be an investigation focusing on
individual culpability, and perhaps in some of these other
investigations as well, where an independent counsel may be
necessary; and, similarly, your response on recusal from votes
on your prospective colleagues appointed by the President-elect
where you have not yet responded to the letter that I wrote.
I am not going to take more time this afternoon or tonight,
but I think that I remain unsatisfied on those questions. And,
in general, I think that the role that you would have as United
States Attorney General ought to be not just another Government
lawyer, but as a champion of civil rights and liberties and the
Nation's legal conscience. And thank you, Mr. Chairman, for
giving me this opportunity.
Senator Sessions. Thank you, Senator Blumenthal, and I
respect your history as a prosecutor and United States Attorney
and time in the Department of Justice.
Senator Blumenthal. Thank you.
Chairman Grassley. Thank you, Senator Blumenthal.
Senator Sessions, you have been a vocal champion for
American workers, especially as we have heard so much about how
American workers are being laid off and replaced by cheaper
foreign labor imported through some of our visa programs. You
have been a cosponsor of a bill sponsored by me and Senator
Durbin that would reform H-1B visa programs by ensuring that
qualified American workers are considered for high-skilled job
opportunities before those jobs can be offered to foreign
nationals. It also would prohibit companies from hiring H-1B
employees if they employ more than 50 people and more than 50
percent of their employees are H-1B or L-1 visa holders.
This provision would crack down on outsourcing companies
that import a large number of H-1B and L-1 workers for short
training periods and then send these workers back to their home
countries to do the work of U.S. workers.
In 2013, you and I seemed to be the lone Senators on this
Committee who fought for U.S. workers. We argued that the Gang
of Eight bill that would have increased the number of foreign
workers who came in on H-1B visas and actually hurt Americans
who were qualified and willing to do those jobs, we said that
the bill failed to adequately protect U.S. workers and
neglected to hold employers accountable for misusing the H-1B
and L-1 visa programs.
We tried to provide more protection for U.S. workers. We
tried to ensure that no business imported foreign workers
before making a good faith effort to hire people at home. We
tried to expand the ability for Government to audit employers.
We offered amendments that were supported by the AFL-CIO. In
April 2015, you helped lead eight other Senators in a letter to
then-Attorney General Holder, Secretary of Homeland Security
Johnson, and Secretary of Labor Perez on this issue. Some of
those who signed that letter sat on this panel today, for
instance, Senator Durbin and Senator Blumenthal. That letter
requested that the Obama administration investigate abuse of H-
1B visa programs by companies, including Southern California
Edison, Disney, and IBM, that have been laying off American
workers and replacing them with H-1B workers, in some cases
reportedly making the American workers train their own
replacements.
The Office of Special Counsel for Immigration-Related
Unfair Employment Practices is an office within your Department
that you will head. That enforces the anti-discrimination
provisions of the Immigration and Nationality Act. While the
office is designed to protect foreign nationals with employment
visas from discrimination, it is also charged with ensuring
that American workers are not discriminated against in the
workplace.
Many U.S. worker advocates believe, for example, that the
layoff of American workers and the replacement by cheaper,
foreign H-1B workers constitutes de facto nationality-based
discrimination against American workers. The Obama
administration has failed to protect American workers here.
This is my question: Will you be more aggressive in
investigating the abuses of these visa programs?
Senator Sessions. Mr. Chairman, you know, I believe this
has been abused, and I have been pleased to support your
legislation, and some others' too, that I believe could be
helpful. It needs to be addressed. It is simply wrong to think
that we are in a totally open world and that any American with
a job can be replaced if somebody in the world is willing to
take the job for less pay. We have borders. We have a
commitment to our citizens. And you have been a champion of
that. I have been honored to work with you on it. Thank you for
your leadership. I would use such abilities that I have to help
address that.
I think it also does require legislation like you have
offered--you and Senator Durbin. I believe legislation may be
necessary to have the kind of reforms that we need.
Chairman Grassley. I appreciate your answer. We will
continue to push for the legislation. We have been very
difficult moving that legislation along because of business
oppositions within our country. So whatever you can do in
regard to being more aggressive, investigating the abuses of
our visa programs, will help solve some of the problems if we
do not get legislation passed. But we still intend to pursue
that.
Now on another point, as you know, relationships between
law enforcement and the communities they serve have been
strained. You have already spoken to that in your opening
comments. In many instances, police have been specifically
targeted.
Now tomorrow, it is my understanding, the president of the
Fraternal Order of Police will testify about this issue. But I
would also like to hear from you on this point. We obviously
need to figure out a way to fix these relationships and restore
mutual trust and respect for law enforcement.
What role can you play as Attorney General in this, and
what role can the Department play more broadly?
Senator Sessions. It is essential that this Nation support
those that we send out to provide public safety and affirm
their good deeds. If they make mistakes and commit crimes, then
they have to be prosecuted like anyone else would who commits a
crime and violates the law, but fundamentally, the overwhelming
majority of our law officers are dedicated, faithful
individuals, serving their country and their community with
discipline and integrity and courage.
So I think this is an important matter. We need to guard
against the kind of public statements that have troubled me in
recent months and years in which we seem to dismiss and take
sides against the entire law enforcement community, where we
suggest that the law enforcement community is not a positive
factor, and that all officers are not performing at a high
level. So, I believe that. I will do my duty to correctly
distinguish between wrongdoing by individuals and the entire
law enforcement community.
Deaths of law enforcement officers are up 10 percent over
the last year. The number of policemen and law officers who
have been killed with a firearm is up, I think, 58 percent.
Some stunning numbers, and part of this is a corrosion of
respect between the communities and law officers. I think it is
a dangerous trend we must reverse and reverse soon.
Chairman Grassley. My next question deals with agricultural
antitrust. I do not believe that there should be political
decisions involved in antitrust decisions in your Department.
But there are several high-level agricultural mergers going on
right now, one before DOJ, one before the FTC, and then there
is another one I do not think has been assigned yet. I come
from the standpoint of being in agriculture with a general--
just a very, I guess ideological belief that when you have less
companies, you have less competition, you have higher prices
for inputs. That is in agriculture, but that would be true of
any segment of the economy.
I also--before I ask this question--want to make a point
that I do not think there are enough people in the Department
of Justice that know much about farming. And one time, maybe
10, 15 years ago, I got some administration--I do not know if
it was a Clinton one or the Bush one--to say they were going to
have somebody in the Antitrust Department that knew something
about agriculture, and I think they did put somebody there. I
do not know whether that person is still there or not.
So this is my question: I am concerned about increased
consolidation and possible anticompetitive business practices
in the agricultural industry. Currently, the Antitrust Division
is reviewing several significant mergers and acquisitions in
the agricultural sector.
Do I have your commitment that the Justice Department will
pay close attention to agribusiness, competition matters, and
carefully scrutinize proposed agriculture mergers and
acquisitions, and can you assure me that the agricultural
antitrust issues will be a priority for the Justice Department
if you are confirmed as U.S. Attorney General?
Senator Sessions. There has been controversy on a number of
those issues over the years that I am, generally, aware of.
Without committing and commenting on any particular case, I
will, Senator Grassley, be pleased to honor your request.
Chairman Grassley. In 1986, 10 years before you came to the
United States Senate, I got the False Claims Act passed. It has
brought 53 billion dollars back into the Federal Treasury since
then.
If you are confirmed, will you pledge to vigorously enforce
the False Claims Act and devote adequate resources to
investigating and prosecuting False Claims Act cases?
Senator Sessions. Qui tam provisions are a valid and
effective method of rooting out fraud and abuse. I even filed
one myself one time as a private lawyer. So these are important
issues that you have been a leader on. It has saved this
country lots of money and probably has caused companies to be
more cautious because they could have a whistleblower that
would blow the whistle on them if they try to do something that
is improper. So I think it has been a very healthy thing. You
are to be congratulated for that, and I do support that act.
Chairman Grassley. You took care of my second question I
was going to ask you on qui tam. And you said that
whistleblowers are very important. I am glad to hear you say
that. I do not know whether they get enough support. I hope you
give priority to that, because a great number of the qui tam
places come from the outside, not from the inside.
Will you provide Congress with regular--this is the last
point on this one. Will you provide Congress with regular
timely updates on the status of FCT, False Claims Act cases,
including statistics as to how many are under seal and the
average length of seal time?
Senator Sessions. I would do that. My experience has been
that they take an awfully long time.
Chairman Grassley. That is exactly why I am asking the
question. And updates from time to time, I think, will keep
people within your Department more responsive and responsible.
Senator Sessions. I understand that. I do not know if a
report is required now, but I do not see why it would be
particularly difficult to provide that to you.
Chairman Grassley. Okay. I have a long lead-in to another
question. I am just going to ask you if you would tell us, for
the record, your reasons for opposing the 2013 Immigration
Bill.
Senator Sessions. Mr. Chairman, fundamentally, I believe
that it would not end the lawlessness, and it would grant
amnesty. That is the position that fundamentally caused you
concern, because in 1986, there was an amnesty given and a
promise of enforcement in the future. And it did not happen.
So, instead of 3 million people, the estimates are that we
now have 11 million people here unlawfully. This is not the
kind of policy a great nation must have. We need to have a
lawful system that we can be proud of, that the world knows
works, that people stop coming illegally because they do not
think they will be successful in the attempt, and we could see
a dramatic reduction in illegality and we could all be pleased
to see that result occur. We will have to call on Congress to
help some.
You understand the issue, and you have been supportive, but
we may have to pass some legislation. Not a lot can be done
with current law, but I would love to be part of an effort with
this Committee to restore the immigration system to the high
level at which it ought to be.
Chairman Grassley. I want to return to the issue of
Violence Against Women Act. I know that for me, that bill did
not do enough to fight fraud and abuse. That is why I
introduced a substitute amendment that would have given more
money to victims by fighting fraud and abuse that was
discovered in the program. It would have ensured that no money
under the program was used to lobby Congress. It also would
have had limited the amount of funding in the program that
could be used for administrative fees and salaries.
In addition, my substitute amendment developed harsher
penalties for Federal conviction of forcible rape, which the
bill that passed weakened. It also addressed child pornography,
and aggravated sexual assault, neither of which were addressed
in the bill that is now law. Finally, my substitute amendment
combatted fraud in the award of U visas to ensure true victims
were protected.
My question, as you mentioned, you voted for my substitute
amendment that was stronger in many respects than the bill that
was passed: Will you enforce the law that was passed?
Senator Sessions. Yes, I will, Mr. Chairman.
Chairman Grassley. That is probably the tenth time you
answered that today, but thank you for being with me.
I want to speak about the Board of Immigration Appeals. It
is the highest administrative body for interpreting immigration
laws, hearing appeals rendered by immigration judges. This
Board, which is under the Attorney General's purview, has
published some very problematic precedent decisions the past
several years. The Board of Immigration Appeals decisions are
binding on all immigration officers, including Homeland
Security Officers and Immigration Judges unless overturned by
the position you are seeking or a Federal court.
Will you, or someone on your team, commit to taking a hard
look at all precedent decisions made by this Board?
Senator Sessions. Mr. Chairman, that does appear to be a
power or an ability of the Attorney General which I have not
thoroughly studied. Any changes would need to be carefully
done, and thought out in a principled and honorable way. I
would do that, and if changes need to occur, and I have the
ability to do it, I will try to conduct myself properly in
making those changes.
Chairman Grassley. Two more points. Oversight by Congress
is important. You have already said that. I am glad you know
the necessity of that. But Congress cannot do all the oversight
needed on its own. We need to rely on strong Inspectors General
to provide another independent assessment on the operations
within the executive branch. That is why that position was set
up in 1979, I believe.
Do you agree that independence is the hallmark of an
Inspector General's integrity and effectiveness and if you do,
please elaborate. The reason I ask the question is, probably it
happens in more departments, but I pay a lot of attention to
DOJ, and I think there has been some problems within DOJ of
recognizing and cooperating with the independence of the
Inspector General.
Senator Sessions. Yes, that independence should be
respected and should be had. I am familiar with some cases in
which the independence of the Inspector General is less than
that, in general, throughout the Congress, and I have been
willing and interested in strengthening their independence.
It is a challenge. The Inspector General is appointed by
the agencies for the most part, I believe. But if they are not
seen as independent, then they cannot be the effective body
that we would like them to be. They have staffs. They have the
ability to contribute to saving money. I believe in the
Inspector General's process.
Chairman Grassley. Before I ask the last question, whatever
reputation I have for investigation and oversight, probably,
maybe even 90 percent of the leads we get come from
whistleblowers. And whistleblowers within an agency are
generally treated like skunks at a picnic. I hope that--I do
not know how many thousands or tens of thousands of employees
you are going to be administering over. You cannot possibly
know what goes on with all those employees. I hope you will
give encouragement to whistleblowing, and that you will listen
to them.
Once in a while you have a crank, but for the most part,
these are just patriotic people that want the Government to do
what the Government is supposed to do, or spend money the way
the Government is supposed to spend it. And then when they do
not get anything going up the chain of command, that is when
they become whistleblowers and they come to us. And by that
time, even if they are protected under law, they still ruin
themselves professionally. So I hope that you see them as a
source, so you can administer a better Department and do what
the Government is supposed to do.
In regard to that, I would appreciate it if you would
provide Congress with accurate and timely information regarding
any action taken, administrative or criminal, against
individuals who retaliate against whistleblowers because it is
against the law to retaliate.
Senator Sessions. You are correct about that. And it is not
acceptable to retaliate against a whistleblower. Some have been
known to be cranks, as you indicated, but you cannot
effectively manage this Government without good citizens and
good employees speaking up when they see wrongdoing. You have
established a reputation as someone willing to receive that
information and act on it and then defend the individual who
had the courage to come forward. We need more of that in this
Government.
Chairman Grassley. I thank you very much. I would like to
have you and other people listen to a couple of points I want
to make at the tail end.
I want people to know that we will keep the record open
until Monday for questions, and you know what to do with those
when you get them.
I want to thank everybody who participated, including those
in the audience, but most importantly, thank you for your
testimony today, and for answering our questions, and doing it
very thoughtfully and very thoroughly. You performed, I think,
admirably, and showed this entire country what we all know from
serving with you. You are eminently qualified to serve as
Attorney General, and I have every confidence that you are
going to do a superb job.
Senator Sessions, you are excused. We will reconvene
tomorrow morning at 9:30 for Panel II.
[Whereupon, at 8:02 p.m., the Committee was recessed, to
reconvene at 9:30 a.m., Wednesday, January 11, 2017.]
[Additional material submitted for the record for Day 1
follows Day 2 of the hearing.]
CONFIRMATION HEARING ON THE
NOMINATION OF HON. JEFF SESSIONS
TO BE ATTORNEY GENERAL
OF THE UNITED STATES
----------
WEDNESDAY, JANUARY 11, 2017
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:35 a.m., in
Room SR-325, Russell Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley, Hatch, Graham, Cornyn, Lee,
Cruz, Flake, Tillis, Sasse, Crapo, Feinstein, Leahy, Durbin,
Whitehouse, Klobuchar, Franken, Coons, Blumenthal, and Hirono.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. Good morning, everybody. I welcome
everyone back for our second day of the hearing on Senator
Sessions' nomination for Attorney General. As I said yesterday,
I want everyone to be able to watch the hearing without
obstruction. If people stand up and block the views of others
behind them, or if they speak out of turn, it is not fair or
considerate to others, so officers will remove individuals, as
they have previously.
Before we begin with opening statements from the panel, I
want to go over a couple of housekeeping items and explain how
we are going to proceed today.
Senator Whitehouse will be acting as Ranking Member today,
and I will give an opening statement, and he can if he wants to
as well. I welcome that. Then we will turn to our witnesses for
their opening statements. Following their statements, we will
begin with the first round of questions in which each Senator
will have 7 minutes. After we finish asking questions of the
first panel, we will turn to the final panel for their
testimony. And in regard to the timing of that, it will kind of
depend upon when this panel is completed. But if we get this
panel completed, let us say, around lunch or 12:30 or 1
o'clock, we may adjourn for an hour or so at that time. But I
will not be able to make that determination until we finish
here with this panel.
Yesterday, we met here from 9:30 until about 8 p.m. so that
every Senator, both Democrat and Republican, could ask Senator
Sessions as many questions as they wanted to. We had great
cooperation yesterday, and I should thank everybody for that
cooperation, and we will press ahead today.
We heard from Senators Shelby and Collins who gave their
strong endorsement of Senator Sessions. Their introductions
described Senator Sessions' extensive experience, outstanding
qualifications, and character.
I also want to note that yesterday Senator Feinstein
participated in her first nomination hearing as the new Ranking
Member. I am looking forward to working with her in her new
capacity, as I said yesterday.
In her opening statement yesterday, Senator Feinstein
correctly observed, and I would like to quote, a fairly long
quote: ``Today we are not being asked to evaluate him''--
meaning Senator Sessions--``as a Senator. We are being asked to
evaluate him for the Attorney General of the United States--the
chief law enforcement for the largest and best democracy in
America.'' She continued, ``As Attorney General, his job will
not be to advocate for his beliefs. Rather, the job of Attorney
General is to enforce Federal law, even if he voted against a
law, even if he spoke against it before it passed, even if he
disagrees with the precedent saying that the law is
constitutional.'' Then she concluded, ``This hearing must
determine whether this Senator will enforce the laws that he
voted against.''
And yesterday, through 10\1/2\ hours of testimony, we got a
clear and unequivocal answer to this threshold question. He was
asked repeatedly if he would enforce the law, even if he
disagreed with that law as a matter of policy.
Time and again, Senator Sessions reaffirmed his commitment
to this fundamental principle. As Attorney General of the
United States, his solemn duties, as we all know and expect,
are to the Constitution and to enforce the laws duly enacted.
His fundamental commitment to the rule of law emerged as a
central theme of our discussion yesterday. And as I made clear
in my opening statement, that is what I believe the Department
desperately needs.
Yesterday's testimony further convinced me that Senator
Sessions is the right choice to serve as our Nation's chief law
enforcement officer at this critical time. We know that he is
very well qualified for the position, having served for 15
years as a prosecutor and now 20 years as a Senator, so that is
three decades of public service.
We all know Senator Sessions will be up front with you.
When he says that he is going to do something, he will do it.
Senator Sessions will be an independent Attorney General, as he
has been asked so many times yesterday and about his
enforcement of the law. That is the bottom line.
I now turn to Senator Whitehouse.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
A U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Thank you very much, Chairman. Let me
just make some very brief remarks.
First, I cannot help but note, as a general proposition,
hearing after hearing, the effort to push nominees into
confirmation hearings before their FBI background checks are
complete, before their ethics and financial disclosure filings
are concluded, and I would like to put into the record of this
hearing the letter that Senator Schumer, Minority Leader
Schumer, wrote to Majority Leader McConnell in which he took a
letter that Majority Leader McConnell had written to--Minority
Leader McConnell had written to Majority Leader Reid and simply
changed the names. He wrote ``Dear Mitch'' in place of ``Dear
Harry,'' and he signed his own name at the bottom. And it was,
thus, a verbatim letter, and what we have been asking for is
exactly what Republicans have asked for over and over again,
what has long been the tradition of the Senate.
It is not the Senate's fault that the Trump administration
was not prepared and that it did not have its nominees vetted
in place. I know that Senator Sessions has been one of the
nominees who has been prepared, but I cannot help but point out
that across the board, the ramming of unvetted nominees, the
stacking of hearings on top of hearings, and the jamming of all
of this up against an unprecedented vote-a-rama for a no-
hearing budget creates, I think, an unfortunate new precedent
in the Senate.
The point that I will make about the Department of Justice,
as somebody who has served in the Department of Justice, like
many of my colleagues or a number of my colleagues, is that I
think there is legitimate concern based on the hectoring in the
right-wing groups for a general housecleaning of career staff
and for a particular targeting of named career staff. As I
mentioned in my questioning yesterday, one of the Heritage
Foundation spokespeople made the comparison to the Augean
stables and ``filth'' as having to be washed out of the Augean
stables. I do not think it is fair to characterize the career
employees of the United States Department of Justice as
``filth,'' nor do I think it is proper to assert that this
should not be secular. And I think it is a matter of concern
when an Attorney General thinks that a secular attorney may
have a lesser or a different appreciation of truth than a
religious attorney. Particularly coming from Rhode Island,
where freedom of conscience has been such a principle of core
value since the days of Roger Williams when Providence was a
tiny settlement in the wilderness where people who thought
freely were able to get away from the theocracy of
Massachusetts, we have a long history of concern about that
kind of evaluation of career department professionals.
Finally, I would say that after a very divisive campaign
that left a lot of Americans and a lot of communities feeling
very wounded and very vulnerable and very set upon, and after a
promise that he would be President for all Americans over and
over and over and over again, we are seeing an array of Cabinet
nominees who run far to the right and, frankly, in many cases
come out of the swamp that the President-elect promised to
drain.
So I thank you, Mr. Chairman, for the, I think, thoughtful
and fair way in which you have run this hearing. I thought that
Senator Sessions handled himself very well by staying until all
the questions were answered. I appreciate the procedure that
you have gone through, but I did want to make a record of those
concerns from our side about the larger process in which these
nominations hearings are taking place.
And with that, I yield back to you, sir.
Chairman Grassley. Thank you.
Before we swear witnesses and I introduce them, I promised
Senator Coons a point of personal privilege on one of the
nominations.
Senator Coons. Thank you, Mr. Chairman. I had asked for the
opportunity to introduce my friend and colleague from law
school, Cornell Brooks, but I am perfectly happy to wait to do
so until there are other introductions afoot or to do it right
now.
Chairman Grassley. I would rather have you do it now, if
you would, please.
Senator Coons. Okay. Thank you, Mr. Chairman.
I am pleased to introduce Dr. Cornell Brooks, the president
and CEO of the NAACP as one of our many witnesses on this
distinguished panel here today. Mr. Brooks has dedicated his
entire career to ensuring that Americans truly enjoy the
promise of equal protection of the law.
Before assuming leadership of the NAACP in 2014, he was
head of the Newark, New Jersey-based Institute for Social
Justice, and fittingly for a hearing on the nominee to lead the
Department of Justice, his early experience was being a part of
the Department of Justice as a trial attorney, where he secured
the then-largest Government settlement for victims of housing
discrimination and filed the Government's first lawsuit against
a nursing home alleging discrimination based on race.
He was also executive director of the Fair Housing Council
of Greater Washington, a trial attorney with the Lawyers'
Committee for Civil Rights Under Law, and a law clerk to the
Honorable Samuel J. Ervin, III, on the Court of Appeals for the
Fourth Circuit. He is a fellow alum of Yale Law School, holds a
Master of Divinity degree from Boston University School of
Theology. He is not just a lawyer and social advocate but a
fourth-generation ordained minister in the African Methodist
Episcopal Church, a husband, and father of two sons.
Mr. Brooks, thank you for your leadership in the work of
justice around our Nation, and I look forward to your testimony
here today.
Thank you, Mr. Chairman.
Chairman Grassley. You bet.
I am going to ask you to stand and swear you in before I
introduce you. Would you raise your right hand? Do you affirm
that the testimony you are about to give before this Committee
will be the truth, the whole truth, and nothing but the truth,
so help you God?
Mr. Mukasey. I do.
Sergeant Vazquez. I do.
Mr. Kirsanow. I do.
Ms. Swadhin. I do.
Ms. Sepich. I do.
Mr. Brooks. I do.
Mr. Canterbury. I do.
Mr. Cole. I do.
Mr. Thompson. I do.
Chairman Grassley. Okay. I notice that all of you have
affirmed that. Thank you very much. Please sit down.
The 81st Attorney General of the United States was the
Honorable Michael Mukasey. Mr. Mukasey has also served as a
U.S. Attorney and a district court judge in the Southern
District of New York. We thank him for coming.
Our second witness is Oscar Vazquez. He became a citizen of
the United States in 2011 and served honorably in Afghanistan
with the U.S. Army. We welcome you and thank you, obviously,
for your military service.
Our next witness, Peter Kirsanow, is a member of the U.S.
Commission on Civil Rights and is very familiar with this
Committee, and we are familiar with you. Thank you for coming.
Next is Amita Swadhin. She is a sexual assault survivor and
co-founder of Mirror Memoirs. I hope I am right on that.
Welcome to you.
Then we have Jayann Sepich, the mother of Katie Sepich. She
is the founder of Surviving Parents Coalition.
Our next witness, Cornell Brooks, you have heard
introduced, but let me further say that he is president of the
National Association for the Advancement of Colored People, and
he is well known to us as well. Thank you for being here today.
Chuck Canterbury is the national president of the Fraternal
Order of Police. He is familiar to a lot of us as well, so we
welcome you.
Next we will hear from David Cole, national legal director
of the American Civil Liberties Union. He is also a professor
at the Georgetown Law Center. We welcome you.
And, finally, we will hear from Larry Thompson. He served
as Deputy Attorney General under President Bush, as a well-
known U.S. Attorney for the Northern District of Georgia, and
welcome back to the Committee, Mr. Thompson.
So I think we will start with Mr. Mukasey, and we are going
to hear testimony from all of you, and then we will have
questions, as I indicated, 7-minute rounds. So proceed, will
you, General Mukasey?
STATEMENT OF HON. MICHAEL B. MUKASEY, FORMER ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Mr. Mukasey. Thank you, Chairman Grassley, Ranking Member
Whitehouse, Members of the Committee. This is one of those
occasions that is both an honor and a pleasure: an honor to
appear before this Committee and a pleasure to speak to the
qualifications of Senator Sessions to serve as Attorney
General.
I have submitted a statement to the Committee, and I am
happy to answer any questions relating to it or to any other
subject that the Committee thinks is relevant to passing on the
qualifications of Senator Sessions. But, of course, I am here
for the convenience of the Committee, not simply to orate. And
after watching yesterday's hearing and Senator Sessions'
responses to the Committee's questions, I think the only thing
I have to add to what I have already submitted at this point is
to say that the person you saw and heard yesterday is very much
the person I came to know beginning in 2007 when I first
appeared before this Committee: principled, intelligent,
knowledgeable, thorough, modest, and thoroughly dedicated to
the rule of law and to the mission of the Department, which is
to enforce the law and to preserve our freedoms.
So I thank you very much for hearing me.
[The prepared statement of Mr. Mukasey appears as a
submission for the record.]
Chairman Grassley. Does that complete your testimony?
Mr. Mukasey. It does.
Chairman Grassley. Thank you.
Now, Sergeant Vazquez, thank you. Please proceed.
STATEMENT OF OSCAR VAZQUEZ, FORMER DREAMER,
U.S. ARMY VETERAN, FORT WORTH, TEXAS
Sergeant Vazquez. Chairman Grassley, Ranking Member
Whitehouse, thank you for the opportunity to testify before the
Committee. My name is Oscar Vazquez, and I am proud to be an
American.
I was born in a small town in Mexico. I was 12 years old
when my mother and I boarded a bus for the border. Although I
did not make the choice to come to America, this country
quickly became my home. As soon as we were settled in America,
my parents made sure that I was enrolled in school because they
wanted me to understand the value of education. It was at this
point that I started to develop a passion for math and science
since the formulas and equations transcended the language
barrier.
In high school, I joined the JROTC program where my two
instructors were Vietnam veterans. They taught us the value of
selfless service, whether you were able to provide it in the
military or not. They wanted us to be better Americans. I loved
the order and discipline and was eventually awarded the JROTC
Officer of the Year. During my sophomore year, soon after 9/11,
I saw the ``Band of Brothers'' miniseries, and I knew then I
wanted to join the Army. But when I met with a recruiter, I was
told that I could not enlist because I was undocumented. I left
that meeting not knowing what to do or what was next. I was
devastated.
I knew I had to figure out what else I could do with my
life. At the beginning of my senior year, I joined the robotics
club. Our team of undocumented students entered a NASA-
sponsored national competition, and we designed an underwater
robot, which we named ``Stinky.'' Beyond our wildest dreams, my
high school team won the grand prize for the competition
against some of the country's top technical universities.
Winning the competition was proof that we as DREAMers had
something to offer to the country we always considered our
home. Although I could not contribute to my country by joining
the military, I enrolled at Arizona State University and
decided I could contribute by becoming an engineer.
In 2005, I married my wife, Karla, a U.S. citizen. She
started the process of petitioning for my legal status, but as
is the case with many DREAMers, there were enormous legal
obstacles and substantial risks.
While I was a student at Arizona State, the Arizona
Legislature passed a law prohibiting undocumented students from
receiving in-State financial aid and paying in-State tuition.
Even though Arizona had been my home for many years and I was
married to a U.S. citizen, I was treated like an outsider. The
law tripled my tuition, but through private scholarships and by
working construction, I scraped the money together to pay for
college and support my family. I graduated in 2009 with a
degree in mechanical engineering.
This was 3 years before the Deferred Action for Childhood
Arrivals was established, so even though I had a STEM degree
and there were jobs available, no one would hire me in this
field because I did not have legal status.
In 2010, after completing a legal process that involved
substantial hardship to my family, I was able to get a green
card. Having legal resident status changed my life. I was able
to get a driver's license, travel freely within the United
States, and pursue my career in engineering. The biggest change
that I noticed was the fear. I was no longer afraid of being
deported or being forcibly separated from my family. I could
also pursue my dream of joining the military and become a
paratrooper. I enlisted in the United States Army and started
basic training in February 2011. I wanted to fight for the
country that raised me. Saying I love this country was not
enough. I wanted to let my actions speak for themselves.
Shortly before I finished basic training, I became a U.S.
citizen. A couple of weeks later, I found myself jumping out of
a C-130 flying over Fort Benning, Georgia. And a couple of
months after that, I was deployed to Afghanistan. I looked
forward to combat because I wanted to protect the United
States. Serving in the Army allowed me to contribute more fully
to this country and make it safer. I was following in the
footsteps of countless other immigrants who have proudly served
the United States. In Afghanistan, I fought side by side with
my Army brothers. We wore the same uniform with the U.S. flag
on the same shoulder. It mattered more that we were willing to
die for each other and for our country than where we came from.
To this day, I remember how I felt after our first
firefight in Afghanistan. I had put my life on the line for my
brothers and for my country, and I felt really proud to be an
American. I felt then for the first time that no one could
again question whether I am an American. It has been a great
honor to serve my country.
My son, Oskar Maximus, is 4 years old and in preschool. My
daughter, Samantha, is 8 years old and in third grade. We live
outside of Fort Worth, Texas, where I volunteer at two
different high schools in their respective robotics programs. I
feel that my family is living the American dream. But I want to
continue serving my country, and I will soon join the Army
Reserve.
I think now about all the doors that were unlocked for me
when I gained lawful permanent residence--the ability to get
the job of my dreams, provide for my family, and live without
fear. I cannot imagine what it would be like to have that taken
away from me today. I also cannot imagine what it is like today
for my former teammates and the nearly hundred thousand DACA
recipients who do not have a legal status and who are afraid of
what could happen to them in a matter of days. Of course, DACA
is only a temporary solution, and now even that is at risk.
I hope that you will not view my story as that of someone
exceptional; rather, I am where I am today because of the many
great people that have believed in me and have given me a
chance.
I also want to acknowledge that most DREAMers and most
undocumented immigrants do not have a path to legal status
right now. I wanted to come here today because our country's
top law enforcement officer must be someone who understands
that immigrants make our country stronger. Most Americans agree
that it is not right to deport someone who was brought here as
a child and deport them to a country they might not even
remember. We need an Attorney General who will protect the
American people from those who would do us harm, but who will
also show mercy to those who deserve it.
Thank you again for the opportunity to testify. I look
forward to answering your questions.
[The prepared statement of Sergeant Vazquez appears as a
submission for the record.]
Chairman Grassley. Thank you very much, Sergeant.
Now, Mr. Kirsanow. Have you pushed the red button or
whatever color the button is?
STATEMENT OF PETER KIRSANOW, COMMISSIONER,
U.S. COMMISSION ON CIVIL RIGHTS, CLEVELAND, OHIO
Mr. Kirsanow. Thank you, Chairman Grassley, Ranking Member
Whitehouse, and Members of the Committee. I am Peter Kirsanow,
a member of the U.S. Commission on Civil Rights and a partner
in the Labor and Employment Practice Group of Benesch,
Friedlander. I am here in my personal capacity.
The U.S. Commission on Civil Rights was established
pursuant to the 1957 Civil Rights Act to, among other things,
act as the national clearinghouse for matters pertaining to
denials of equal protection, discrimination, and voting rights,
and in furtherance of that clearinghouse function, my assistant
and I reviewed the bills sponsored and cosponsored by Senator
Sessions in his tenure in the Senate, as well as his public
activities and actions that are at least arguably related to
civil rights.
Our examination found that Senator Sessions' approach to
civil rights matters both in terms of his legislative record
and his other actions is consistent with mainstream textual
interpretation of relevant statutory and constitutional
authority, as well as governing precedent.
Our exam also reveals that Senator Sessions' approach to
civil rights is consistent, is legally sound, intellectually
honest, and has an appreciation and understanding of the
historical bases for civil rights laws. And our examination
found that several aspects of Senator Sessions' record,
unfortunately, have been mischaracter-ized and distorted to
portray him as somehow being indifferent if not hostile to
civil rights.
The facts emphatically show otherwise. Among other things--
and this is probably least consequential--Senator Sessions has
sponsored or cosponsored a plethora of bills honoring
significant civil rights leaders, events, icons, such as
Reverend Martin Luther King, Jr., Coretta Scott King, Reverend
Shuttlesworth's fight against segregation, three separate bills
honoring Rosa Parks, a Senate apology to the descendants of
victims of lynching, a bill to honor participants in the Selma
Voting Rights March, a bill to honor the victims of the 16th
Street Baptist Church bombing, and on and on and on. But
Senator Sessions' commitment to civil rights transcends simple
resolutions in support of civil rights. He has authored,
cosponsored, or sponsored a number of bills to protect and
enhance voting rights, such as the Federal Election Reform Act
of 2001, the Voter Fraud Protection Act of 2009, a number of
bills to protect and enhance the voting rights of
servicemembers, particularly those serving overseas.
He is a strong proponent of religious liberty, having
sponsored or cosponsored several bills to prevent
discrimination against the religiously observant and to prevent
the Government from substantially burdening the free exercise
of a person's religious beliefs. But in our estimation, his
most profound and important impact is on preserving and
protecting the rights of American workers, particularly Black
workers.
The employment and wage levels of Black workers in America
have been abysmal for several decades. The labor force
participation rate for Black males is 61.8 percent and falling.
The unemployment rate for Black males is nearly double that of
White males. Evidence adduced before the U.S. Commission on
Civil Rights shows that 40 percent of the 18-point decline in
Black employment levels is attributable to Government failure
or refusal to enforce existing immigration laws, and this has a
cascade effect by increasing the competition within the
unskilled and low-skilled marketplace, driving out Black
workers, slashing wages, particularly among Black males. And
this has resulted in hundreds of thousands if not slightly over
a million Blacks having lost their jobs directly due to this
phenomenon. And it has broader sociological implications as
well related to incarceration and family formation rates.
No one has been more committed or engaged than Senator Jeff
Sessions in protecting and enhancing the prospects of Black
workers in America. But for his indefatigable efforts in this
regard, the plight of Black workers now and in the immediate
future, in the foreseeable future would be demonstrably worse.
His leadership on this matter and his leadership on the
Subcommittee on Immigration and the National Interest has been
key to forestalling an even deeper downward trajectory for
Black workers in this country.
I will conclude, Mr. Chair, by simply respectfully offering
that his record on civil rights legislation, his actions as a
U.S. Attorney and State Attorney demonstrate an unwavering
commitment to equal protection under the law and a genuine
fidelity to the rule of law that should make him an outstanding
Attorney General.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Kirsanow appears as a
submission for the record.]
Chairman Grassley. Thank you.
Ms. Swadhin.
STATEMENT OF AMITA SWADHIN, FOUNDER,
MIRROR MEMOIRS, LOS ANGELES, CALIFORNIA
Ms. Swadhin. Good morning. My name is Amita Swadhin. I am a
resident of Los Angeles, California, born in Ohio to two
immigrants from India and raised in New Jersey. And I am
grateful to Chairman Grassley, Ranking Member Whitehouse, and
Members of the Committee for the opportunity to be here today.
In October, hot mic tapes were released of President-elect
Trump describing forcibly kissing women and grabbing women by
the genitals. In the wake of these comments becoming public,
Senator Sessions was quoted stating he does not characterize
that behavior as sexual assault.
Millions of sexual assault survivors were triggered in the
wake of these events. I was one of those survivors. My father
raped me at least once a week from age 4 to age 12. I endured
psychological, verbal, and physical abuse from him for years. I
also grew up watching my father abuse my mother in a textbook
case of domestic violence and marital rape.
When I disclosed the sexual abuse to my mother at age 13,
she called a therapist, engaging mandated reporting. The
prosecutor threatened to prosecute my mother for being
complicit. They told me I would be harshly cross-examined by
the defense attorney and did not connect me to any victim
support services. I was too afraid to tell them my story. My
father received 5 years' probation and no jail time, and his
violence continued for 2 years until my mother finally found
the support to leave him.
I am here today on behalf of rape and sexual assault
survivors to urge you not to confirm Senator Sessions as
Attorney General. As a publicly out survivor of child sexual
abuse, many people have downplayed the impact of this violence
on my present-day life. I live with complex post-traumatic
stress disorder and struggle every day to be well. It directly
and negatively impacts me when people minimize sexual assault.
So to hear Senator Sessions initially say President-elect
Trump's comments do not constitute sexual assault and then to
consider him leading the Department of Justice has been
incredibly worrisome.
I am unfortunately far from alone in my experience. More
than 320,000 Americans over age 12 are raped or sexually
assaulted every year. One in four girls and one in six boys
will be sexually abused before age 18. These are public health
issues occurring in the private sphere. In 80 percent of adult
sexual assaults and 90 percent of cases of child sexual abuse,
victims know and trust our perpetrators. For this reason, most
victims of violent crime never seek healing or accountability
from the State. Most violent crimes remain unreported.
Thankfully, we have improved the response of the criminal
justice system with the creation of the Violence Against Women
Act in 1994. The STOP Formula Grants under VAWA provide
training to judges, prosecutors, police officers, and other law
enforcement personnel to better support survivors. In 1991, the
police did not contact victim services for me, but today,
thanks to VAWA, law enforcement is encouraged to provide
victims an advocate to support them in breaking their silence.
Yet despite this progress, rape, sexual assault, and
domestic violence still happen at epidemic rates, and survivors
at the intersections of oppression are especially vulnerable.
LGBT people and particularly transgender women of color are
disproportionately victimized. One in two transgender people
will be raped or sexually assaulted in their lifetime.
Furthermore, the majority of hate violence homicide victims
are transgender women. In fact, only 11 days into the new year,
two transgender women of color have already been murdered:
Mesha Caldwell, an African-American transgender woman from
Mississippi; and Jamie Lee Wounded Arrow, a two-spirit Oglala
Lakota woman from South Dakota.
We need an Attorney General who is committed to improving
and enforcing our laws to ensure the most vulnerable victims of
crime can come forward to seek accountability and to access
healing. Time and again, Senator Sessions' voting record has
shown us he is not the man for the job. Despite his claim to be
a champion for victims of violent crime, he has not been a
friend to vulnerable survivors. While Senator Sessions voted in
favor of the Violence Against Women Act in the bill's early
years, when VAWA was expanded in 2013 to ensure LGBT,
immigrant, and Tribal populations of domestic violence and
sexual assault survivors are protected and have access to
services, Senator Sessions voted against the bill.
We must trust the Attorney General to enforce and apply our
laws fairly per our Constitution's provisions on equal
protection. We must trust the Attorney General to respect the
humanity of all Americans, and especially to be committed to
seeking justice for our most vulnerable victims of crime. Given
his voting record on VAWA and on LGBT rights, we have no reason
to put our faith or our trust in Senator Sessions as Attorney
General.
In conclusion, I want to emphasize that members of the
National Task Force to End Sexual and Domestic Violence,
including, but not limited to, the National Coalition Against
Domestic Violence, the YWCA, the National Council of Jewish
Women, UGEMA, the National Center on Violence Against Women in
the Black Community, the National Alliance to End Sexual
Violence, the National Coalition of Anti-Violence Programs,
Break the Cycle, and Jewish Women International oppose Senator
Sessions' nomination because of the issues I am raising today.
Thank you.
[The prepared statement of Ms. Swadhin appears as a
submission for the record.]
Chairman Grassley. Thank you very much.
And now we will go to Ms. Sepich.
STATEMENT OF JAYANN SEPICH, CO-FOUNDER,
DNA SAVES, CARLSBAD, NEW MEXICO
Ms. Sepich. Good morning, Chairman Grassley, Ranking Member
Whitehouse, and Members of the Committee. My name is Jayann
Sepich, and thank you for the opportunity to testify today in
support of the nomination of Senator Sessions as Attorney
General of the United States.
In 2003, my daughter Katie, a vivacious 22-year-old
graduate student, was brutally raped, murdered, and set on
fire. It is never easy to lose a child for any reason, but the
pain and horror of losing our daughter in this violent manner
is beyond description.
No suspects emerged in Katie's case, but Katie fought for
her life, and underneath her fingernails were found the blood
and skin of her attacker, and a DNA profile was extracted and
uploaded into the national forensic DNA database called
``CODIS.'' I made the comment to investigators that the man who
had killed Katie was such a monster that surely he would be
arrested for another crime, his cheek would be swabbed, and we
would soon know his identity, and he would not be able to harm
another young woman. That is when I learned it was not legal in
New Mexico, my home State, or in most States to take DNA at the
time of a felony arrest. It could only be taken after
conviction.
I was stunned. We do not use DNA to accurately identify
persons arrested for serious crimes? We release them from law
enforcement custody without a check of the DNA database for a
possible match to other unsolved crimes? We collect
fingerprints, mug shots, and check what other crimes a person
may have been involved in, but we do not collect DNA?
After considerable research, I became a national advocate
for the collection of DNA upon arrest. My husband and I started
the nonprofit association DNA Saves. We know we cannot bring
Katie back, but we absolutely believe that we may be able to
prevent new crimes--prevent this horrible pain from being
visited on other families--by advocating for laws that allow
for the collection of DNA from persons arrested for serious
crimes.
To date, 30 State legislatures and the U.S. Congress have
enacted laws requiring that a DNA sample be taken for
qualifying felony arrests. In June 2012, the U.S. Supreme Court
upheld these laws, ruling that taking DNA at the time of
booking for a felony arrest is ``a legitimate police booking
procedure that is reasonable under the Fourth Amendment.''
Senator Sessions helped craft the legislative language that
became the DNA Fingerprint Act to provide Federal authorities
with the authorization to collect DNA from arrestees.
In 2008, Senator Bingaman, along with Senator Schumer as an
original cosponsor, introduced the Katie Sepich Enhanced DNA
Collection Act, which was passed in 2012. This Federal law
provides additional funding, through the Debbie Smith DNA
Backlog Elimination Act, to those States that have enacted laws
to expand their databases. Once again, as the Judiciary
Committee's Ranking Member during that time in which this
legislation was pending, Senator Sessions played a significant
role in helping us to craft a bill that would gain bipartisan
support and eventually passed Congress unanimously.
As a result of stronger State and Federal DNA database
laws, we have seen many heinous criminals identified through
arrestee DNA testing. My home State of New Mexico has seen over
1,200 cases matched. California is seeing ten cases matched
every day on their DNA database. The Alabama Department of
Forensic Sciences remains one of the most successful programs
in the country, and they credit Senator Sessions for much of
the success largely due to the support he has provided from the
outset of the State's forensic DNA program during his term as
Alabama Attorney General. Alabama has utilized the DNA database
to solve over 6,500 previously unsolved cases.
In Katie's case, after more than 3 long years, DNA finally
identified Gabriel Avila as Katie's killer. But he would have
been identified after only 3 months if law enforcement had been
permitted to collect DNA at arrest.
Over the past 11 years, our family has worked to change DNA
laws across the country. We have been supported by lawmakers of
both parties. We have also seen opposition from both
Republicans and Democrats. Forensic DNA is a very complex
issue, and it is vitally important that policymakers take the
time to fully understand these complexities in a truly
nonpartisan manner.
Senator Sessions has done that. And with that
understanding, he has stood in strong support of the use of
forensic DNA to both identify the guilty and exonerate the
innocent. He knows that when a DNA match is made on CODIS, it
is completely blind to race, ethnicity, and socioeconomic
status. DNA is truth. It is science.
Senator Sessions said in a 2002 floor speech, ``We are
spending only a pittance on getting our scientific evidence
produced in an honest and effective way. As a result, justice
is being delayed, and justice delayed is justice denied.''
I believe that Senator Sessions is committed to the
philosophy that it is the core responsibility of our Government
to protect public safety. He cares about victims. He has been a
leader on forensics policy for years and consistently has
supported vital funding for DNA.
In conclusion, our lives were shattered when our daughter
was brutally murdered. We know intimately the pain that violent
crime brings to families. Senator Sessions has shown he
understands the pain of victims and has put that understanding
into action to help make changes that will make a difference.
Senator Sessions will provide strong leadership to the United
States Department of Justice, and I hope you will support his
nomination for Attorney General.
Thank you.
[The prepared statement of Ms. Sepich appears as a
submission for the record.]
Chairman Grassley. Thank you, Ms. Sepich.
Now, Mr. Brooks.
STATEMENT OF CORNELL WILLIAM BROOKS, PRESIDENT AND CHIEF
EXECUTIVE OFFICER, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE, BALTIMORE, MARYLAND
Mr. Brooks. Good morning, Chairman Grassley, Ranking Member
Whitehouse, and esteemed Senators of this Committee. My name is
Cornell William Brooks. I serve as president and CEO of the
NAACP. I greatly appreciate the invitation to testify before
you today and to express the deep concerns of the NAACP
regarding the nomination of Senator Jefferson Sessions to be
U.S. Attorney General.
As you well know, the Attorney General is the chief law
enforcement officer of the United States. Particularly for such
a time as this, with racial divisions deepening, hate crimes
rising from sanctuaries to schoolyards, with State-imposed,
racially motivated voter suppression spreading in State
legislatures, as well as being struck down in Federal courts,
with police-involved shootings reduced to hashtag #homicides
and viralized videos, it is critical that this Committee
closely examine Senator Sessions' entire record as a prosecutor
and as a legislator to determine whether he is fit to serve as
the chief enforcer of our Nation's civil rights laws.
Based upon a review of the record, the NAACP firmly
believes that Senator Sessions is unfit to serve as Attorney
General. Accordingly, representing multiple civil rights and
human rights coalitions, we urge this Committee not to
favorably report his nomination to the full Senate. As our
written testimony details, Senator Sessions' record reveals a
consistent disregard for civil and human rights of vulnerable
populations, including African Americans, Latinos, women,
Muslims, immigrants, the disabled, the LGBT community, and
others. Further, his Senate voting record reflects a
fundamental disregard for many of the Department of Justice's
programs which are vital for the protection of Americans.
Senator Sessions' votes against the Hate Crimes Prevention
Act of 2000, 2002, 2004, 2007, and 2009 and the Violence
Against Women Act in 2012 and 2013 demonstrate a disturbing
lack of concern regarding violent crimes: rape, assault, murder
committed against minorities, and an American majority--women.
These crimes in particular make victims of individuals as well
as the groups to which they belong and the American values we
cling to.
His opposition to the Lilly Ledbetter Fair Pay Act
indicates a hostility to the claims of employment
discrimination and more specifically to allowing legal redress
for pay discrimination against women.
His consistent opposition to any meaningful gun controls
shows an unwillingness to stand up to the firearms lobby and a
lack of concern regarding the destructive impact of gun
violence on our children and communities.
His failure to condemn the President-elect's call for an
unconscionable and unconstitutional ban on Muslim immigrants as
well as his opposition to a Senate resolution condemning a
Government-imposed litmus test on a global religion evidences
an unwillingness to protect the rights of the vulnerable and
the unpopular, which is something an Attorney General must do.
His call for the re-evaluation of a basic constitutional
principle, that persons born in this country are citizens of
this country, reflects a form of an unconstitutional xenophobia
that is fundamentally inconsistent with the duty of the
Attorney General to protect the rights of all Americans.
His calling into question the legitimacy of consent decrees
causes us to question whether he will use this powerful tool to
hold accountable police departments such as Ferguson that
engaged in predatory policing and a pattern and practice of
discrimination.
With his consistent support for mandatory minimums as a
prosecutor and a legislator, he stands in opposition to
bipartisan efforts to bring to an end this ugly era of mass
incarceration, with 2.3 million Americans behind bars, with
overpopulated prisons and jails, and depopulated families and
communities.
It is Senator Sessions' record on voting rights, however,
that is perhaps the most troubling. As this Committee is well
aware, the infamous Marion Three case in which civil rights
activists were prosecuted by then-U.S. Attorney Sessions for
voter fraud, all of whom were acquitted by a jury in less than
4 hours on 29 counts. This chilling prosecution against
innocent civil rights workers who were later given Gold Medals
by Congress painfully reverberates in the hearts of Black
voters in Alabama and the history of this country.
Senator Sessions' record of prosecuting so-called voter
fraud and both intimidating and suppressing voters then is now
reflected in a legislative record of supporting voter ID
requirements that suppress votes based on the myth of voter
fraud today. His record of vote suppression prosecution is
connected to a record of vote suppression legislation today.
Rather than condemn, he has commended voter ID laws like that
in his own State of Alabama affecting a half million voters,
similar to laws struck down in Texas and North Carolina in the
Fourth and Fifth Circuits.
If we can imagine Senator Sessions leading a Department of
Justice in Michael Brown's Ferguson, Freddie Gray's Baltimore,
towns with rising hate crime, communities of vulnerable
populations, and a democracy divided by voter suppression in
this Twitter-age civil rights movement--we can imagine that.
Imagining that, we must face the reality that Senator Sessions
should not be our Attorney General.
With that said, thank you for this opportunity to testify.
I welcome your questions.
[The prepared statement of Mr. Brooks appears as a
submission for the record.]
Chairman Grassley. Thank you, Mr. Brooks.
Mr. Canterbury.
STATEMENT OF CHUCK CANTERBURY, NATIONAL PRESIDENT, GRAND LODGE,
FRATERNAL ORDER OF POLICE,
WASHINGTON, DC
Mr. Canterbury. Good morning, Mr. Chairman, Ranking Member
Whitehouse, distinguished Members of the Committee, and, of
course, my own Senator, Lindsey Graham.
My name is Chuck Canterbury, the national president of the
330,000 rank-and-file police officer organization. I am very
pleased to have the opportunity to be here today to testify
before this Committee. I have testified before on Cabinet
nominations, agency head nominations, and even a nominee for
the Supreme Court of the United States. I can say without
reservation that I have never testified with more optimism and
enthusiasm than I do today for Senator Jeff Sessions. We
wholeheartedly support his position and nomination as Attorney
General of the United States.
Following the news that President-elect Trump intended to
tap Senator Sessions, we immediately issued a statement to the
press indicating our strong support for his nomination. He has
been a true partner to law enforcement in his time as a U.S.
Attorney, Attorney General for the State of Alabama, and
throughout his tenure in the United States Senate.
Senator Sessions has demonstrated commitment not just to
so-called law-and-order issues, but also to an issue very
important to my members: officer safety. He was the leading
cosponsor of the FOP's efforts to enact the Law Enforcement
Officers Safety Act, which was authored by our friend and
former Chairman of this Committee, Senator Leahy. In 2010,
Senator Sessions was the Republican lead cosponsor of S. 1132,
the Law Enforcement Officers Safety Act Improvements, which
made important and needed changes to the original law. He has
provided true leadership in this successful and bipartisan
effort.
More recently, Senator Sessions was deeply involved in the
passage of S. 2840, the Protecting Our Lives by Initiating COPS
Expansion Act. He helped build bipartisan support for the
legislation, which passed the Senate and then the House before
being signed into law by the President. That law gives the
Office of Community-Oriented Policing Services the authority to
award grants to State, local, and Tribal law enforcement
agencies to get active shooter response training for their
officers. The need for this training has obviously been
identified by numerous law enforcement leaders and by the FOP.
Senator Sessions played a key role in the efforts to pass
the Fallen Heroes Flag Act, the bill which provides a flag
flown over this Capitol to surviving members of public officers
killed in the line of duty.
Now, this may not sound like much to you, but in a time
when officers are being assassinated at the highest rate since
the 1970s and officers are being assaulted at record rates,
officers in the field want to know: Who has my back? Who will
protect me while I protect my community? Bills like this, which
acknowledge and respect the sacrifices made by the rank and
file truly resonate with my members and with the public safety
community.
Members of the Committee may remember the years that were
spent trying to do away with the disparity between the
sentencing on possession of crack cocaine versus powder
cocaine. There was a considerable gulf between the position of
the FOP and many Members of this Committee. But in 2001,
Senator Sessions introduced a bill to address this issue, and
he worked tirelessly to bring it together. He made sure the
voice of law enforcement was heard and also asserted his belief
that the disparity as existed in the current law was unjust. In
2010, as the Ranking Member of this Committee, he brokered the
compromise that led to the passage, with our support, of the
Fair Sentencing Act. We accepted that compromise because it was
fair, it was just, and it reflected the perspective of law
enforcement in the law enforcement community. The importance of
his direct role in this issue cannot be overstated. Without
Jeff Sessions, I believe we might be here today still trying to
remain unsolved.
That said, I understand that there is a certain amount of
partisanship, and it is expected in these nomination hearings.
But I ask all the Members of this Committee to recollect that
Senator Sessions has worked in a bipartisan manner on many
issues, officer safety issues, with the FOP and Members of the
left. More than many times that I have been here has Senator
Sessions been one of the sole Members to stand up for law
enforcement, especially when it came to the issue of asset
forfeiture. Without his leadership and support, the equitable
sharing program may have been dismantled. For us, that
demonstrates that Jeff Sessions is a man who can reach across
the aisle to get things done for the rank-and-file officer and
to protect the citizens of this country.
Senator Sessions has worked tirelessly and faithfully for
the majority of his adult life. He is above all a man who
reveres the law and reveres justice. I believe he will be an
exemplary Attorney General, and we urge you to move this
nomination forward to the Senate for passage.
Thank you, sir.
[The prepared statement of Mr. Canterbury appears as a
submission for the record.]
Chairman Grassley. Thank you, Mr. Canterbury.
Now, Mr. Cole.
STATEMENT OF DAVID COLE, NATIONAL LEGAL DIRECTOR, AMERICAN
CIVIL LIBERTIES UNION, WASHINGTON, DC
Mr. Cole. Thank you for inviting me to testify.
The ACLU is a nonpartisan organization with a longstanding
policy of neither endorsing nor opposing nominees for Federal
office. We rarely testify in confirmation hearings as a result.
We do so today because we believe Senator Sessions' record
raises serious questions about the fitness of Senator Sessions
to be an Attorney General for all the American people.
We take no position on how you should ultimately vote, but
we urge you to painstakingly probe the many serious questions
that his actions, words, and deeds raise about his commitment
to civil rights and civil liberties.
Our concerns arise from his conduct as a prosecutor and
from his record as a Senator. As a prosecutor, when he
exercised the power to prosecute, the most serious power that
any Government official in the United States exercises, he
abused that power. Cornell Brooks has already talked about his
prosecution, ultimately baseless, of civil rights heroes for
seeking to increase the Black vote in Alabama. He did not
investigate those who sought to help White voters in Alabama,
but he did investigate and prosecute those who sought to aid
Black voters. Many of the charges in that case were dismissed
before they even went to the jury because they were baseless.
The jury then acquitted them of all of the charges.
In a second case, the TIECO case, Senator Sessions
collaborated with campaign contributors to his senatorial
campaign to use the office of the criminal prosecutor to
intervene in a private business dispute on behalf of his
campaign contributors. He filed a 222-count indictment against
TIECO, an engineering supply corporation. All charges in the
case were dismissed. Many were dismissed because, again, they
were baseless. There was no evidence whatsoever to support
them. The others were dismissed on grounds of prosecutorial
misconduct, and the judge who dismissed them said this was the
worst case of prosecutorial misconduct he had seen in his
career on the bench. Mr. Sessions' successor, Mr. Pryor, did
not even appeal that decision. So those actions raise serious
questions about his fitness to become the most powerful
prosecutor in the land.
Second, his record as a Senator. Here he has shown
blindness or outright hostility to the concerns of the people
whose rights he will be responsible to protect. On voting
rights, he supported felon disenfranchisement laws and voter ID
laws that suppress the Black vote. When the Supreme Court
gutted the single most effective provision of the Voting Rights
Act, the most important statute in getting African Americans
the right to vote in this country, Senator Sessions called that
``a good day for the South.''
On religious tolerance, he called Islam a ``toxic
ideology.'' It is, in fact, a religion practiced by millions of
Americans. Imagine if he called Christianity a ``toxic
ideology.'' Now he says he opposes a Muslim ban on entrance to
the United States, but when Donald Trump proposed that, he
stood up and opposed a resolution introduced here in the Senate
to keep religion out of immigration decisions.
On women's rights, now he says that grabbing women's
genitals is sexual assault. But when Donald Trump's tape
recording bragging about his doing precisely that was made
public, Senator Sessions said, and I quote, ``I don't
characterize that as a sexual assault. That is a stretch.''
When he voted against extending the hate crimes law to
crimes motivated by gender and sexual orientation, he said, and
I quote: ``I am not sure women or people with different sexual
orientations face that kind of discrimination. I just don't see
it.'' Well, if you do not see discrimination, you cannot very
well enforce the laws against discrimination.
On torture, he now says that waterboarding is illegal, but
he praised Michael Mukasey for not ruling out waterboarding.
And he opposed Senator McCain's amendment which was designed to
make it clear that waterboarding was illegal.
On criminal justice, he is an outlier, departing even with
many of his Republican colleagues who seek to make the criminal
justice system more fair and less harsh.
If someone applying to intern for one of your offices had
as many questions in his record as Senator Sessions has, racist
comments, unethical conduct, padding of his resume, you would
not hire him absent the most thorough investigation and
inquiry, if then.
Senator Sessions is not seeking to be an intern. He is
nominated to be the most powerful law enforcement officer in
the Nation. The Senate and, more importantly, the American
people deserve satisfactory answers to these questions before
Senator Sessions is confirmed.
Thank you very much.
[The prepared statement of Mr. Cole appears as a submission
for the record.]
Chairman Grassley. Thank you, Mr. Cole.
Now, Mr. Thompson.
STATEMENT OF HON. LARRY THOMPSON, FORMER DEPUTY ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC
Mr. Thompson. Chairman Grassley, Ranking Member Whitehouse,
and other Members of this distinguished Committee, I appreciate
the opportunity to appear before you today in support of the
nomination of Senator Jeff Sessions to be Attorney General of
the United States.
I want to add this morning a bit of a personal perspective
on Senator Sessions. I have known Senator Sessions for over 30
years, and I am honored to consider him a good friend. Over the
years, we have talked frequently, had dinners together, and
enjoyed each other's counsel and support.
When I first met Senator Sessions, he was the United States
Attorney in Mobile and I was the United States Attorney in
Atlanta. In order to stretch our limited Government per diems
on travel to Department of Justice conferences, we sometimes
shared a room together. We were simply two young prosecutors
trying to save money.
In 1982, when I was asked by Attorney General William
French Smith to head the Southeastern Organized Crime Drug
Enforcement Task Force simply because of the strategic location
in Atlanta, where my office was, a delicate situation was
presented. The task force consisted of 11 other United States
Attorneys' Offices, but any potential problem was avoided
because my friend, Senator Sessions, rallied the other United
States Attorneys around our common cause and my leadership.
Senator Sessions had a lot to do with the success of the task
force under my leadership.
Senator Sessions was highly thought of by his colleagues
and served on the prestigious Attorney General's Advisory
Committee. Membership to this committee is by invitation only.
I have thought about this a lot and can identify for you
without any equivocation whatsoever three themes by which the
Senator will lead the Department of Justice.
First, Senator Sessions will vigorously but impartially
enforce our laws. Senator Sessions has a strong record of
bipartisan accomplishment on criminal justice matters. He also
understands the importance of what former Attorney General
Robert Jackson said about what constitutes a good prosecutor,
that being one who displays a sensitivity to fair play and who
appreciates his or her task with humility.
Next, Senator Sessions will continue to make certain that
the traditional role of Federal law enforcement is carried out
with vigor, effectiveness, and independence. The Department of
Justice under his leadership will tackle such critical crime
problems as complicated fraud schemes by individuals and
organizations, civil rights violations, serious environmental
violations, terrorism, and espionage.
Finally, Senator Sessions will seriously look at the role
of Federal law enforcement to help our citizens achieve a
greater sense of personal safety in their homes and
neighborhoods. This will be especially important for some of
our minority and low-income citizens against whom violent crime
has a disproportionate impact. Of all our important civil
rights, the right to be safe and secure in one's home and
neighborhood is perhaps the most important.
We all know that Senator Sessions has strongly but honestly
held political and policy views, but the Senator also has a
record of bipartisan leadership in the Senate, especially on
criminal justice issues. We talked yesterday, a great deal was
presented to the Committee, on Senator Sessions' effort under
the Fair Sentencing Act of 2010 and his work with Senator
Durbin on that important legislation. It is interesting that,
as the Deputy Attorney General of the United States in the Bush
administration, I opposed this legislation. Senator Sessions
was right and I was wrong.
A son of the South who has had up-close experiences with
our great civil rights movement, Senator Sessions is not
oblivious to the fact that we have more to do in the area of
racial equality. He noted in a speech praising the foot
soldiers of the civil rights movement that, ``More needs to be
done. We need to join closer hands.''
So as a lawyer myself who has spent a fair amount of time
during my 43-year legal career supporting diversity in our
great profession and equal rights, this statement touched me
greatly because it reflects the man I have known for over 30
years and who I am proud to call my friend. Senator Sessions
deserves confirmation as our next Attorney General.
Thank you.
[The prepared statement of Mr. Thompson appears as a
submission for the record.]
Chairman Grassley. Thank you.
We will have 7-minute rounds now and I am going to start
with General Mukasey. Senator Sessions himself has noted the
Attorney General is not the President's lawyer. In your
opinion, would Senator Sessions have the independence, and of
course the ability, to say ``no'' to the President, if they
disagreed?
General Mukasey. Absolutely. And I think he made that both
clear and explicit yesterday, saying that if necessary, the
alternative was to resign.
Chairman Grassley. Also, we heard Senator Sessions testify
about the appropriate scope of communication between the White
House and the Department of Justice. He said he thought that
there was merit in your December 2007 memo on that topic, so
could you tell us what you believe the merits of your approach
to be, which would be your explaining in further detail what
Senator Sessions said yesterday?
General Mukasey. Okay. What is in the memo is that contact
between the White House and the Justice Department is limited
to the Attorney General and the Deputy Attorney General, with a
couple of exceptions. Those exceptions are, pending
legislation, which is the subject of communication between
lower level people in the White House and people in the Office
of Legal Policy and other routine budget matters. Other than
that, there is to be no contact between anyone at the Justice
Department and anyone in the White House and if anybody gets
such a call, they are instructed that the polite response is,
``Thank you very much, I will refer you to the person who can
respond to you.''
Chairman Grassley. Mr. Thompson, you have known Senator
Sessions for 35 years and in that time you worked very closely
with him, so you have already said something about your service
together, but could you tell us about that service and might be
more detailed than you did in your opening statement?
Mr. Thompson. Yes, Senator Grassley. I have known, as I
have said, Senator Sessions for a number of years. He has a
great deal of respect for the Department of Justice. He had
been an Assistant United States Attorney when I had met him. He
had already been promoted to become the United States Attorney.
He is a fine lawyer, was a very effective prosecutor, and has
great fidelity to the principles of fair prosecution and the
traditions of the Department of Justice.
Chairman Grassley. And would you, knowing him as you do,
would you say that he is going to be that independent head that
we expect of the Department of Justice?
Mr. Thompson. Absolutely. I would expect Senator Sessions
to understand and appreciate and to practice the traditional
independent role of the Department of Justice and he would be
an Attorney General, I think, that all the Senators on this
Committee would be proud of.
Chairman Grassley. Further, since you know him, how do you
think he would fare standing up to a strong-willed President
who wants to take certain actions as Senator Sessions, in his
capacity as Attorney General, would feel would be
inappropriate?
Mr. Thompson. That is a good question. As I said, Senator
Sessions is not only an experienced prosecutor, but he is a
mighty fine lawyer. He would understand his role to counsel the
President and to bring the President around to what position is
appropriate, but he, at the end of the day, would be
independent if the President insisted upon doing something that
was inappropriate.
Chairman Grassley. Mr. Canterbury, of course you are no
stranger to these sort of Attorney General hearings. You
testified in support of Attorney General Eric Holder 8 years
ago. Reflecting on the last 8 years of leadership, the
Department of Justice from the perspective of arguably the
largest law enforcement advocacy group, how did DOJ fare, and
how might it be different if the person you are supporting
today were Attorney General?
Mr. Canterbury. Senator, it is our position that we have to
work with whoever is in that office, and we have historically
worked with every Attorney General. Personally I have worked
with every Attorney General since Janet Reno. And we believe
that with Senator Sessions, the communications, the lines of
communications will be more direct than they have been. We have
had good success with career employees at DOJ. They are very
professional. We believe it is an outstanding organization, but
we also believe with Senator Sessions, information and the
knowledge that he has had from serving on this Committee, he
will be able to serve us well in the area of criminal justice,
with reform efforts and with training and equitable sharing and
those type of things. We feel the communications will be
excellent with Senator Sessions.
Chairman Grassley. Another question for you. The sheriff's
association at the national level recently noted that in the
past year this country has seen the highest number of law
enforcement fatalities in 5 years, including 21 officers who
were ambushed, shot and killed. If confirmed for the position
of Attorney General, what steps do you think that Senator
Sessions could take to reverse the trend?
Mr. Canterbury. First and foremost, we believe that Senator
Sessions, as Attorney General, will not speak out on incidents
that arise before a thorough and full investigation. And we
believe that the anti-police rhetoric comes from people that
make comments without knowledge of the situation prior to the
facts being released to the media. And so we believe that there
will be a much more positive tone about reconciliation. Nobody
in this country wants our communities and police to reconcile
more than my members, Senator.
Chairman Grassley. Mr. Kirsanow, Senator Sessions has
received some criticism for his enforcement of voting rights
while he was a Federal prosecutor and Alabama Attorney General.
Would you evaluate Senator Sessions' record on voting rights?
This will probably have to be my last question.
Mr. Kirsanow. Thank you, Mr. Chair, I would be happy to. I
have heard testimony and I have heard media reports with
respect to cases related to voting rights that Senator Sessions
was prosecuting and if he had failed to prosecute the Perry
County case, that would have been an extraordinary dereliction
of duty. I would advise everybody who is interested in facts,
as opposed to optics, to read the indictment, to read all the
available pleadings, read all of the contemporaneous reporting
and you will have wasted about 2 days doing so, as I did. The
multi-count indictment, if you go through it, details in
excruciating detail all of the violations here.
If you look at the facts of the case, what happened is, you
had two separate factions of Black Democrats in Perry County,
who were vying for seats. One faction went to the U.S.
Attorney's Office and said, ``Wait a minute here, we believe
there is rampant voter fraud going on here.'' And in fact, if
you look at the FBI's affidavit related to this, they found 75
forged signatures on absentee ballots. There were multiple
counts where individuals who were part of--who were candidates
who were taking absentee ballots, changing them, altering them,
or filling them out on behalf of individuals and then giving
them to the elections board.
One family had a candidate, for whom they voted, who was
their cousin. All six members testified that their ballot,
nonetheless, was checked for the other person. And they said it
was false. There was copious evidence that in fact there was
voter fraud, in fact that it occurred.
Now, it is true, these people were acquitted, but we have
seen this circumstance before. The person who literally wrote
the book on voter fraud prosecutions, Craig Donsanto, who is
the legendary former head of the Public Integrity Section of
DOJ was the man who told Senator Sessions, ``Go forward with
this.'' He surmised, as did many other contemporary witnesses,
that this was a classic case of voter nullification. I think as
he testified, or he indicated, that this is a matter in which
there was no way in the world a jury was going to convict these
individuals who were, in fact, civil rights advocates. The
facts of the case established that had a prosecutor not taken
this and pursued this, there would have been some serious
questions about his integrity.
Chairman Grassley. Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
Mr. Canterbury, I was my State's Attorney General, and
Rhode Island is one of the States where the Attorney General
has full prosecutive authority, there are only three. So I
worked very closely with my police department. I was also my
State's United States Attorney and in that capacity I worked
very, very closely with police chiefs. My experience was that a
police chief in Providence, which is an urban good-sized city,
and a police chief in small coastal Narragansett, Rhode Island,
would have very different law enforcement priorities. And that
it, in my view, is appropriate for a police chief to be able to
pursue their own law enforcement priorities within their
communities. Would you agree with that?
Mr. Canterbury. Yes, sir, Senator, the same thing with
sheriffs, the Constitution-elected officers, they are going to
police their communities as they think they need to be policed
and set priorities that way.
Senator Whitehouse. And an important part of that, for a
police chief, is to maintain the kind of community relations
between the department and the community that support effective
pursuit of those law enforcement priorities. Is that not the
case also?
Mr. Canterbury. I do not think it is any different in a
city with five police officers than it is in Providence.
Wherever you are----
Senator Whitehouse. Community relations----
Mr. Canterbury. Community relations is the key to
successfully performing our job.
Senator Whitehouse. And it is going to be different in
different communities. The method is going to be different of
effective community relations in different communities.
Mr. Canterbury. It can be, yes, sir.
Senator Whitehouse. And so, would you agree that for the
Department of Justice to try to dictate what local law
enforcement priorities should be, or how a police department
should choose to deal with its community, could be a stretch
too far?
Mr. Canterbury. In matters of law, no, but in matters of
policy and procedure, yes, sir, I would agree.
Senator Whitehouse. And prioritization, as well, correct?
Mr. Canterbury. Absolutely.
Senator Whitehouse. Yes. The reason I ask that is that one
of the concerns that I have heard from Rhode Island police
chiefs has been that a relentless or unthinking pursuit of very
low-level immigration violations could disrupt everything from
orderly community relations with a Latino community to even
ongoing significant gang investigation in which cooperators
might lose their willingness to cooperate if somebody came in
and decided to try to deport their mother. My point is not that
one is right or the other is wrong. My point is that the
decision at the community level as to priorities and to
maintaining community relations is an important one, correct?
Mr. Canterbury. Yes, sir, it would be. But to cut more to
the core of what I think you are asking, Sanctuary City
decisions are usually made by politicians and not police
chiefs. And very rarely----
Senator Whitehouse. ``Sanctuary City,'' in fact, is not
even a legal term, is it?
Mr. Canterbury. And very rarely should law enforcement
officers make those decisions. As you know, Senator,
politicians pass the laws and we are charged with enforcing
them, we do not necessarily have to agree----
Senator Whitehouse. And in doing so----
Mr. Canterbury. Or disagree with them.
Senator Whitehouse [continuing]. And in doing so, you do
establish law enforcement priorities.
Mr. Canterbury. Yes, sir, we would.
Senator Whitehouse. You do not put people out on the street
to do jaywalking, you go after murders first, you go after
robberies first. That is standard law enforcement practice,
correct?
Mr. Canterbury. Emergency protocol requires the highest
level of crime first and down from there.
Senator Whitehouse. Down from there.
Mr. Thompson, Mr. Canterbury said earlier something that I
agree very much with, which was to applaud the career employees
of the Department of Justice and to say that right now the
Department of Justice was an outstanding organization. You and
I and others have served as United States Attorneys. What do
you think about the career attorney core of the Department of
Justice?
Mr. Thompson. Well the career attorneys at the Department
of Justice, through my years of experience, Senator, like
yours, these are very good lawyers. They are dedicated to law
enforcement, they are dedicated to the work of the Department
of Justice. I have had nothing but positive experiences in my
years at the Department of Justice, and in dealing with the
Department of Justice as a defense lawyer.
Senator Whitehouse. Should a career attorney in a new
administration be punished for following properly the policy
direction of a previous administration?
Mr. Thompson. I do not actually think a career attorney
should be punished for anything other than not doing his or her
work.
Senator Whitehouse. Clearly a career attorney should not be
judged on whether they are secular or religious in their lives,
correct?
Mr. Thompson. Absolutely not.
Senator Whitehouse. Mr. Brooks, the Sessions candidacy has
achieved expressions of support from people like David Duke and
from what has been described as a White supremacist neo-Nazi
news site called The Daily Stormer, whose site founder wrote
that the Sessions appointment was, ``like Christmas. Basically
we're looking at a Daily Stormer Dream Team in the Trump
Administration.'' Now you cannot fault a nominee for the people
who choose to be enthusiastic about his candidacy. This is not
obviously Senator Sessions' fault. But do you believe that he
has distinguished himself away from whatever the causes are for
that support so that you feel comfortable going forward that he
has addressed that?
Mr. Brooks. Based on the record, I do not believe that the
Senator has sufficiently described a Department of Justice
fully committed to enforcing the Nation's civil rights laws.
Where we have hate crime rising, most of which is perpetuated
not in bars, not in streets, but in K through 12 schools.
Speaking out against hate crimes, making it clear that you are
going to prosecute hate crimes, making it clear that you are
going to enforce the Nation's civil rights laws, the Voting
Rights Act to the full measure in a full-throated way, I do not
believe we have heard that. So, he is not responsible for who
endorses him, but he is in fact responsible for what he
endorses and his vision for the Department of Justice.
Senator Whitehouse. Thank you, Chairman, my time has
expired.
Chairman Grassley. Thank you, Senator Whitehouse. Now
Senator Hatch.
Senator Hatch. Well thank you, Mr. Chairman.
General Mukasey, welcome back to the Judiciary Committee.
You became Attorney General after nearly two decades as a
Federal District Court Judge. The current Attorney General had
nearly two decades of experience as a Federal prosecutor. Jeff
Sessions will become Attorney General after two decades as a
U.S. Senator.
No matter where an Attorney General comes from, he or she
has the duty described yesterday by one of my Democratic
colleagues as enforcing the law fairly, evenly and without
personal bias. You were here yesterday and heard, as I did, the
repeated suggestion that Senator Sessions would not be able to
enforce the law that he personally disagrees with. Do you agree
that someone's political party, general ideological
perspective, or personal opinions do not by themselves mean
that he or she cannot be impartial and fair?
General Mukasey. I certainly agree that a person's
political background does not disqualify that person from
enforcing the law and does not disable that person from
enforcing the law. And I think Senator Sessions made it
entirely clear that he understood the difference between
advocating a position on the one hand as a legislator and the
oath that he takes to enforce the law on the other. He was very
clear, very precise about that. And I think everybody who
passes from one status to another, be it from a judge to
Attorney General, be it from a lawyer to a judge, understands
that they are changing their responsibilities. And he is not
alone in that but he certainly is very much alive to it.
Senator Hatch. How comfortable are you that Senator
Sessions, a conservative Republican Senator, would enforce the
law fairly, evenly and without personal bias?
General Mukasey. Well, I think his statements yesterday
make it entirely clear that he understands his responsibility
to do that and I see no reason why he will not do it.
Senator Hatch. Mr. Kirsanow, in his written testimony, Mr.
Brooks argued that Senator Sessions lacks the judgment and
temperament to serve as Attorney General. Even more, he
questioned whether Senator Sessions would actually prosecute
hate crimes. I would welcome your response to that.
Mr. Kirsanow. I have not known Senator Sessions as long as
Mr. Thompson has, but I have known him for more than 10 years.
And what I can tell you is that I have worked with several
Senators here who have been very concerned about issues related
to civil rights, particularly with respect to one issue that is
within my wheelhouse as a labor attorney, and that is the
interests of Black and other workers and their employment
prospects.
We had hearings at the Civil Rights Commission, several
hearings at the Civil Rights Commission about a lot of
deleterious policies to the prospects of Black employment. And
these were rectifiable policies, but they had pronounced
effects, negative effects on Black employment. We even had a
hearing where every single witness that spanned the ideological
spectrum from left to right agreed, for example, that massive
illegal immigration has a decidedly negative impact on wage and
employment levels.
I provided these reports to a number of Senators and other
Congressmen. Many of the Senators here were alarmed by it and
questioned me about it and we had interactions and other
members of the Civil Rights Commission. I also provided it to
Members of Congress, including Members of the Congressional
Black Caucus. The one Senator who reached out, being very
alarmed and pursuing this case with ultimate vigor was Senator
Sessions. He was very concerned about this. In a number of
private conversations we talked about a number of the steps
that could be taken aside from reforming immigration law, which
we all know here is something that is a significant challenge.
But what could we do to improve employment prospects of Black
Americans? He was the only Senator to act in that fashion. I
heard nothing whatsoever from the Congressional Black Caucus,
despite copious detail about the negative impact of this.
I am ultimately convinced that Senator Sessions would take
the appropriate actions to enforce the law as written, because
that is what we were talking about, existing immigration law,
and he was adamant in doing that. Without fear or favor and
without bias.
Senator Hatch. Knowing him as well as I do, I agree with
you.
Mr. Canterbury, I want to thank you so much for what you
and thousands of officers who represent us each and every day
have said here for Senator Sessions.
The Pew Research Center, today, released one of the largest
polls of police officers ever conducted involving some 8,000
officers in departments across the country. As a result of the
high-profile fatal encounters between officers and Blacks,
three-quarters of officers are more reluctant to use force when
it is appropriate, and 72 percent have become less willing to
stop and question people who seem suspicious.
Now I believe this effect stems from what has become almost
a presumption that police have done something wrong when such
encounters occur. That is a pernicious and dangerous shift in
the general attitude toward our police and it is totally
without foundation. Now it seems to me that this change in
attitude cannot only negatively affect officers and actually
put police safety at risk, but also make much more difficult
important efforts at community policing. Do you agree with me
on that?
Mr. Canterbury. Absolutely agree with you. I think the case
in Chicago of the young female officer that decided to take a
beating rather than deploy a taser because she said it was not
worth what she would put herself through to deploy a taser is a
microcosm of what is happening in law enforcement where it is
not worth what you may have to put yourself through.
Senator Hatch. Well that same poll found that 93 percent of
officers had become more concerned about their own safety in
this country. Yesterday, the Chairman noted that the number of
police killed in the line of duty has significantly increased.
You have made that point. Also yesterday, Senator Sessions
noted that most police are local rather than Federal. The
Fraternal Order of Police and other national law enforcement
groups support his nomination. How do you think that a change
in leadership of the Justice Department can concretely affect
and improve things at the local level?
Mr. Canterbury. Well, first of all, the Byrne JAG Grant
Program, the COPS program, the community-oriented policing
teams, consent decrees, pattern-of-practice investigations,
when you have open lines of communication, where rank-and-file
management as well as citizen and activist groups can discuss
those cases, I think you can get to a place where the
communities will feel safer and the police officers will feel
safer. And we have got to reduce the violence in this country.
You know, Senator Hatch, we have been saying for a long time,
systemic poverty is an issue that law enforcement is not
charged with, nor has the ability to fix. But we are willing to
be good partners and we believe, with Jeff Sessions as Attorney
General, we will be able to work in all of those sections of
the Justice Department, to try to improve.
Senator Hatch. We are pleased that you are here today and
we are pleased that you are willing to testify for and on his
behalf.
Thank you, Mr. Chairman.
Chairman Grassley. Senator Durbin.
Senator Durbin. Thank you very much, Mr. Chairman.
I want to thank all of the members of the panel who are
here today, and especially Oscar Vazquez, who came as my
invitee, for telling his inspiring life story. Thank you. You
have given a face to an issue which is near and dear to my
heart and the hearts of millions of Americans, and thank you
for serving our country.
General Mukasey, during the course of this hearing I sensed
that there is an evolving context relative to Russia and the
involvement of Russia in the election. Many of the questions we
posed to Senator Sessions related to his values, his votes. And
now, I think, there is a growing concern of a question that you
have addressed yourself to him and I asked you to speak to
again about his role if he becomes Attorney General, vis-a-vis
the White House, the President.
We now have allegations, unconfirmed, relative to Russian
activity related to the President-elect. As I said, alleged,
unconfirmed. And Director Comey of the FBI saying that at this
point he would not talk about whether there was an ongoing
investigation relative to Russia's role in the election.
So can you give me some clarity? And I think you have
addressed this, and forgive me if I am asking you to repeat.
Could you give me some clarity: When you served as Attorney
General, if you received a call from on high, from the White
House, from any person in the White House, relative to an
investigation, an ongoing investigation, or a prosecution, what
do you believe was the appropriate response in that situation?
Mr. Mukasey. The appropriate response is that, whatever
investigation it is, is going to be pursued to its logical
conclusion, which is to say where the facts and the law lead.
And I am glad that the question was in the hypothetical because
I, in fact, did not get such a call, although I have gotten to
get calls with respect to other matters. And my response was
generally that the department would pursue its agenda as
already set.
Senator Durbin. Is it your position the Attorney General is
independent in this decisionmaking when it comes to other
members of the executive branch?
Mr. Mukasey. Correct. The Attorney General is, obviously,
is a member of an administration and pursues priorities that
are set by an administration. But when you are talking about
particular investigations and particular cases, that is
something altogether different. And I think Senator Sessions
made it clear he understood it was altogether different.
Senator Durbin. May I ask you another question related to
that? Investigations undertaken by the Federal Bureau of
Investigation: What authority does the Attorney General have
over the commencement or the conclusion of those
investigations?
Mr. Mukasey. Well, the Attorney General theoretically is--
the FBI director reports to the Attorney General. I say
``theoretically'' because occasionally one gets the idea that
the FBI director is independent. If we had more time, I could
tell you a story, but it will have to wait until an informal
meeting.
The FBI director works for the Attorney General.
Senator Durbin. So I guess my question, repeatedly Senator
Sessions has called for Attorneys General to recuse themselves
rather than participate in investigations with political
ramifications. Most recently, he called for Attorney General
Lynch to appoint a special counsel for Hillary Clinton in an
op-ed that he wrote on November 5th of last year.
I am trying to work this through. I asked him pointedly
whether he would recuse himself if there were any accusations
against the President-elect, once he becomes President, or
other people involved in the Trump campaign. And he basically
answered me that he was going to take this on a case-by-case
basis.
If--he has the authority and power to stop an investigation
at the FBI, is that what you are telling me?
Mr. Mukasey. Yes.
Senator Durbin. So if there is an investigation underway,
he could stop it if he wished.
Mr. Mukasey. Yes.
Senator Durbin. And when it comes to the appointment of a
special counsel involving the conduct of the President, is it
your feeling that the Attorney General should, as a general
rule, consider special counsel?
Mr. Mukasey. No. It would depend on the case. A special
counsel is to be appointed when there is a good reason why the
department headed by the Attorney General cannot pursue that
case. And I think what Senator Sessions had--I am not familiar
with the op-ed that you mentioned, so I am speculating, but I
think it sounds like what he had in mind was not simply the
position of the Attorney General, but rather the tarmac
conversation with President Clinton that put her in a difficult
situation. I do not think that simply had to do with the fact
that she was Attorney General appointed by the President.
Senator Durbin. I see, thank you.
Mr. Brooks, since the Shelby County decision, the Voting
Rights Act is in a perilous situation. And I commended to my
colleagues and I commend to you a book entitled ``White Rage''
by Carol Anderson, teaches at Emory. And she talks about the
evolution of the issue of race since the Civil War.
It strikes me now that we are in dangerous territory about
the future of the Voting Rights Act. If preclearance is not
required and the Department of Justice is reacting after the
fact, there could be some delay in justice here in an
intervening election or no action taken.
I asked my staff to give me a listing of the cases
initiated by the Department of Justice relative to the Voting
Rights Act for the last several years, and it goes on for
pages. Can you address this issue about your belief of the
commitment of Senator Sessions to enforce the Voting Rights Act
in principle, post-Shelby County?
Mr. Brooks. Certainly. So as you well know, Senator, the
Voting Rights Act is regarded as the crown jewel of civil
rights statutes. And Section 5 was regarded as the most
effective provision of the most effective civil rights statute.
And so in the wake of the Shelby County v. Holder Supreme
Court decision, which debilitated Section 5 via Section 4(b),
we have seen nothing less than a Machiavellian frenzy of voter
disenfranchisement from one end of the country to the other.
And so that means that the Department of Justice has taken
on more responsibility and civil rights organizations have
taken on more responsibility with fewer tools. It has meant the
debilitation, literally, of our democracy where we have
citizens who have to wait for the violation to occur, as we saw
in North Carolina where the Fourth Circuit, the U.S. Court of
Appeals for the Fourth Circuit, held that the State legislature
engaged in intentional racial discrimination with respect to
voter suppression, carried out with surgical precision.
It took an army of lawyers, an army of experts in order to
vindicate the rights of the people, and a mass movement by the
North Carolina State conference of the NAACP with so many
others and so many other legal groups.
The point being here is the Department of Justice, not only
is our democracy in a perilous place, but the Department of
Justice is in a perilous place. It needs strong leadership. It
needs resources. And we need a Voting Rights Advancement Act to
fix the Voting Rights Act.
Senator Durbin. And post-Shelby County, if the Attorney
General is not timely and aggressive in enforcing the Voting
Rights Act, the damage will be done.
Mr. Brooks. The damage is absolutely done. And when we
think about all of the many Members of this body that went to
Selma, that commemorated the foot soldiers of the movement on
the Edmund Pettus Bridge, all that they died for, all that they
sacrificed for is hanging in the balance. So we need strong
leadership there because literally, literally we can squander
the fruit of their efforts and the civic sacrament of our
democracy, namely the right to vote.
Senator Durbin. Thank you.
Thank you, Mr. Chairman.
Chairman Grassley. Thank you, Senator.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
There is a lot to cover in 7 minutes, so let me try to be
somewhat selective.
First of all, thanks to all of you for being here. I cannot
help but believe that in spite of the fact that we have had a
national election that the election is still ongoing, the
campaign is still ongoing. I respect each one of your rights to
express your point of view, but at the same time it is amazing
to me that with the Senator having cast 6,000 votes in the
United States Senate we are focused on a handful of policy
differences and somehow people are saying that those are
dispositive of the qualification of this person who we have
served alongside of for 15 years, in my case, and 20 years in
the case of others.
So I guess our job is sort of like the jury in a regular
lawsuit. We have to give weight to the testimony and we have to
figure out whose testimony is entitled to greater weight
because, frankly, the descriptions we have heard today are so
wildly disparate that I would imagine for people who did not
know Senator Sessions and know his record as I do and those of
us who have served with him, it would be hard to reconcile.
But I want to ask General Mukasey, Senator Hatch alluded to
this, but this is really important to me and I just want to
reiterate this.
You have had the distinction of serving in two branches of
our three branches of government, as a Federal district judge
with great distinction, then as Attorney General in the
executive branch. I, at a much lower level, have had the chance
to serve now in three branches myself as a State court judge
and as an Attorney General of my State and now as a legislator
here at the Federal level.
Each of those roles are different, are they not? And
indeed, I think that is the point that Senator Sessions made
eloquently yesterday. Even though he may have some policy
differences or had cast a vote against a bill in the Senate, he
would respect the Constitution and enforce the law. Is that not
what you understood?
Mr. Mukasey. That is precisely what I understood. And he
recognized the difference in the different roles that he plays
as a legislator from what he would play as Attorney General.
Senator Cornyn. And I thought yesterday he did a
magnificent job responding to the questions and acknowledging
that policy differences do exist. That is just the way it is.
Mr. Canterbury, let me ask you a little bit about the role
of the Federal Government and the Attorney General's office and
the Department of Justice in supporting local and State law
enforcement.
I believe the figure is roughly $2 billion a year that the
Federal Government hands out or distributes in terms of grants
to local and State law enforcement. I think in your testimony,
you mentioned the active shooter training that we have tried to
enhance through the Police Act which passed this Congress and
was signed by President Obama, making sure that more officers
got that training, which is even more relevant, sadly, today
than perhaps even in the past.
I would just add to that the work that we did recently on
mental health and its intersection with the criminal justice
system. The Mental Health and Safe Communities Act that was
part of the 21st Century Cures bill, again, recognizing that
our jails and our streets and our emergency rooms have become
the treatment centers by default for people with mental
illness.
We need to do more to try to get people who need help the
help they need, but not treat mental illness as a crime, per
se.
We also need to make sure that we train our law enforcement
officials because we know how dangerous, at least from the
stories and the statistics that we see, how dangerous it can be
when a police officer encounters a person with mental illness
and they do not have the training they need in order to de-
escalate the scene.
But could you talk a little bit about your experience and
your organization's experience as law enforcement officials
dealing with people with mental illness?
Mr. Canterbury. Well, I would say in the last 10 or 15
years the number of mentally ill individuals that law
enforcement comes in contact with has exponentially gone up as
mental health services at the State and local level have gone
down.
And I have explained this recently to Vice President Biden
when he asked about that same question, and my response was, in
many of these situations, regardless of whether a police
officer or a law enforcement professional realizes that there
is a mental illness, the circumstances are dictated by the
actions.
And so whether or not we can recognize the particular
mental illness is not as important as recognizing that there is
an issue. The problem is that there is very little assistance
at that level anymore for street-level mental illness. And
making sure that they are not a danger to themselves or others
should not, cannot be the responsibility of a first-responding
officer. We just will never have the training to be able to do
it to that extent. So it is a huge issue for local and State
officers. And I do not know what we are going to do to fix
that. But the biggest thing is that the community-based mental
health facilities are just not there anymore.
Senator Cornyn. Well, I think you will find a friend in
Senator Sessions as Attorney General in recognizing the
priorities for local and State law enforcement and making sure
that the Mental Health and Safe Communities Act, which will
provide priority for that kind of training and assistance for
local and State law enforcement, is there.
Ms. Sepich, thank you for your outstanding work and arising
out of a terrible tragedy you and your family experienced in
your lives. But I know you are committed to making sure not
only that that does not happen to other families, but also that
through your work on DNA Saves that we are able to bring people
responsible to justice. There has been so much work that we
have done here, and Senator Sessions has been front and center,
as you have noticed. Things like Senator Hatch's Rapid DNA
legislation act, the Paul Coverdell National Forensic Science
Improvement Act, which was just renewed in the Justice for All
Act that Senator Leahy and I cosponsored and was signed by
President Obama.
But it is so important to make sure that we do provide all
of these essential tools and good science to make sure that we
do convict the guilty, but we also exonerate people who are
innocent of crimes.
And would you--I just want to say thank you. I know the
Chairman has got his gavel in his hand, he is getting ready to
gavel me out of order here. But I just want to express my
gratitude to you for your leadership on that issue.
But you are right, Senator Sessions has been front and
center at all of those efforts to not only convict the guilty,
but also exonerate the innocent.
Ms. Sepich. Thank you, Senator.
Senator Cornyn. Thank you, Mr. Chairman.
Chairman Grassley. And now Senator Leahy.
Senator Leahy. Thank you. I was not going to interrupt
Senator Cornyn as long as you are praising the legislation you
and I wrote together. I mention it only because, contrary to
what people believe, Republicans and Democrats do work together
on a lot of things here in the Congress.
Mr. Thompson, you and I have worked together on things, as
you know.
And I just want to say something to Sergeant Vazquez. I
watched some of your testimony earlier. It is so moving. And my
wife did, too, and we both are so proud of you and thank you
for what you have done in your service for the country. And as
parents of one who served in the military, we, like all parents
everywhere, you worry about those who serve and you worry about
what they do, but you thank everybody, the fact that we have
people who are willing to serve our country.
Are you concerned about what might happen under the new
administration for young people registered under DACA?
Sergeant Vazquez. Definitely, Mr. Senator. There is a huge
concern for those roughly 800,000 people that raised their hand
and said they were undocumented, right? I think that the
biggest point that that makes is that when there was a path,
there was a way for us to come out of the shadows, right? Eight
hundred thousand people raised their hand and said they were
undocumented. Now, the fact of the matter is that there was no
other way, right? Congress, the Senate has not passed any
meaningful laws that could guarantee them a path to
citizenship, to--to whatever you want to call it.
But unless there is a path, unless there is a way they can
find a permanent solution, we are definitely concerned that the
next administration is going to stop the DACA and that those
students are going to have to go back into the shadows.
Senator Sessions stated yesterday that there is not enough
financial support to deport 800,000 people, and at the same
time he opposed every single legislation that would have given
them a way to become legal. So what are the students to do?
What are the young adults to do when they are faced with that
position? So it is definitely concerning.
Senator Leahy. You must know an awful lot of people who are
here under DACA. Is there a sense of concern about the rhetoric
that we are hearing with the new administration?
Sergeant Vazquez. There is definitely a sense of concern.
There is a lot of fear most of all. I know students, one of the
other--my teammates that won the competition so many years ago,
he is a father to two U.S. citizen children now and he will be
facing--he is facing the unknown, given the next
administration.
I mean, there has been statements saying that DACA is going
to be repealed, maybe there is not, so we are not sure what is
going to happen in that scenario. There is a lot of fear out
there.
Senator Leahy. Thank you.
Ms. Swadhin, I raised--nobody had, I thought I should raise
the question yesterday at our hearing about comments that the
President-elect had made regarding sexual assault and gave Mr.
Sessions a chance to explain. His first response is that he
seemed to be basically minimizing it and approving of what the
President-elect had said. He expanded what he meant yesterday.
And yesterday he was under oath. I will accept that.
But I think of my own daughter. I think of my three
beautiful granddaughters. And I think about somebody in a
Hollywood video when the President-elect jokes about what is
sexual assault.
Mr. Sessions, now when he is asked further about it, admits
that what President-elect Trump bragged about doing is sexual
assault.
You have dedicated your life to helping others heal after
sexual assault. You are a survivor yourself. So I have a two-
part question: What kind of a message does it send when
somebody, especially somebody in power, trivializes sexual
assault, even jokes about it? I was a prosecutor, I prosecuted
sexual assault cases. What does it do for a victim's
willingness to come forth if they see people in power
trivialize something that might be a lifelong trauma for them?
And I yield to you.
Ms. Swadhin. Thank you for the question, Senator Leahy. You
know, it is highly relevant on several levels that the impact
that it has on survivors watching people in power, and in this
case someone who, you know, has been elected to be the
President of the United States, make these kind of jokes and
brag about this kind of so-called ``locker room behavior''
about sexually assaulting women. I think it is important to go
back to the point I made in my testimony that the majority of
victims of violent crime are assailed by people who they know
intimately. In cases of adult rape and sexual assault, it is 80
percent of survivors know their assailant. And in 90 percent of
cases of child sexual abuse, the person sexually abusing a
child is known and trusted and often loved by the person who is
perpetrating the violence.
So it is already so hard for survivors to come forward
because it means that we have to testify against the people
that we put our trust in. My case, it was my father and that is
not an uncommon story. It is someone very close to you. That is
how these crimes happen. And so to be able to trust the State
more than we fear our intimately known perpetrators, we have to
see people in control of the State who take a hardline stance
against sexual assault and who, you know, say publicly that
they would support and believe survivors.
And unfortunately in this political climate, we are looking
at an administration led by a man who not only does not seem to
prioritize helping sexual assault survivors heal and come
forward and be able to trust the State, but, you know, may have
actually engaged in sexual assault himself, the things that he
was bragging about, so it is incredibly concerning.
Add to that the fact that the violence that we live through
has very traumatizing impacts. I, myself, live with complex
PTSD, so your mental health on a day-to-day basis is already
negatively impacted. So to be able to stay grounded enough to
come forward and put your trust in a stranger, a social worker,
a prosecutor, a police officer, in order to get the services,
the healing, and the accountability that you deserve, it is
incredibly difficult.
Senator Leahy. Thank you, because I remember on these
sexual assault cases with detectives in my office, the
assistant prosecutors, and myself having to tell people you can
trust us, we actually care about what you say, we do believe it
is a crime.
And frankly, those who trivialize it and say it is not a
crime are ignoring too many people in this country.
Thank you, Mr. Chairman.
Chairman Grassley. Thank you, Senator Leahy. Now Senator
Cruz.
Senator Cruz. Thank you, Mr. Chairman. I want to thank all
the members of this distinguished panel for being here today.
And I want to take a special moment to thank Larry Thompson who
was my boss at the Department of Justice, although I would note
that you should not hold Larry accountable for my many missteps
in the years that followed.
I want to start, Mr. Cole, by addressing your testimony.
And I would note that the ACLU--I have worked alongside the
ACLU on any number of issues here in the Senate, including we
have worked alongside each other on issues of indefinite
detention, we have worked on the same side concerning the USA
Patriot Act, we have worked on the same side working to stop
the efforts of Senate Democrats to amend the Constitution and
to amend the free speech protections of the First Amendment.
And so I am grateful for many of the good things the ACLU does.
You are a professor at Georgetown. I would like to ask you, as
a professor, how would you react to a student who submitted an
exam with a one-sided and biased account of the facts that
included only the facts supporting the student's views and
omitting everything else?
Mr. Cole. Well, first of all, Senator Cruz, thank you for
where you have worked with us and we hope to work with you in
the future where our interests align. You know, what we did
here with respect to Mr. Sessions was to----
Senator Cruz. I will get into the facts for a moment.
Mr. Cole. Yes, so I think----
Senator Cruz. If you will indulge me and answer the
question.
Mr. Cole. Right. So I think it would depend. If the
question were to the student, is grabbing a woman by the
genitals sexual assault or not and they responded, yes, it is,
I would say that is a correct answer. If they responded by
saying, actually----
[Interruption from the audience.]
Mr. Cole. If they responded by saying, no, I would not
characterize grabbing a woman by her genitals as sexual
assault, I think that is a stretch, as Mr. Sessions did--
Senator Cruz. Mr. Cole, I----
Mr. Cole. Then I would say that is not a good answer. So it
depends on the question.
Senator Cruz. We will get into the facts and substance in a
moment.
I think I am on firm ground observing that if you had a
student who presented a one-sided and biased answer you would
grade them very poorly. I would also note you and I are both
Supreme Court litigators. And any court would not look kindly
at a litigant who omitted any facts or law that were to the
contrary.
Would you agree with that? That if you file a Supreme Court
brief or do an oral argument and the case law that is against
you, the facts that are against you, you just stick your head
in the sand and ignore, that does not tend to be looked on too
kindly by the Supreme Court or by any court?
Mr. Cole. No, I think you have to address the questions
that are presented by the case, as I think we did with respect
to Senator Sessions.
Senator Cruz. Okay, good. Well, then let us get into the
facts. You blasted--and I will note that your testimony--I have
to say, your testimony both written and oral is disappointing
to me. You characterized it as ``strictly nonpartisan,'' and
yet you blasted Senator Sessions for prosecuting African-
American civil rights leaders as a U.S. Attorney in the 1980s,
insinuating that doing so somehow made him a racist.
And yet, you did not mention in your written or oral
testimony the fact that the complaints asking him to do so were
brought by African-American citizens who felt that their votes
were being abused and stolen. And indeed, I would like to read
a quote from LaVon Phillips, who is an African-American
investigator for the Perry County District Attorney's Office,
who said, ``There was an ongoing, Black-on-Black power struggle
in Perry County. In 1982, the office received numerous
complaints from incumbent Black candidates and Black voters
that absentee ballot applications were being mailed to
citizens' homes without their request. People were going to the
polls trying to vote. They were told that they had already
voted absentee when they did not. A grand jury, a majority of
which was African American, asked in its official report for a
Federal investigation of voter fraud in Perry County because it
was becoming very abusive and the Black incumbent candidates at
the time were rather terrified.'' That is the case Senator
Sessions brought as U.S. Attorney.
And my question to you, Mr. Cole, is, in your written and
oral testimony, why did you omit the fact that the complaint
came from African-American citizens, from elected African-
American incumbent politicians, and the indictment came from a
grand jury that was a majority African-American? Why did you
omit those facts?
Mr. Cole. Well, I do not think I intentionally omitted
those facts, Senator Cruz. What I did was to express our
concerns about several aspects of that case, namely that
Senator Sessions, as the U.S. Attorney, investigated only
counties, not just Perry County, but only counties where Black
votes had gone up, not where White votes had gone up, but only
where Black votes had gone up, number one.
Number two, that he had conducted the investigation in an
extremely intrusive way, addressing Black voters at their
homes, asking them how they voted, why they voted, et cetera.
Number three, that he took the position, the legal position
that advising somebody on how to vote, on who to vote for, was
a crime.
Now, you, Senator Cruz, when you were running for
President, advised people on how to vote for yourself. That was
not a crime.
Senator Cruz. Well, you also omitted the fact that the
evidence in the case showed absentee ballots had been tampered
with. And indeed, the defendant in the case admitted that he
had changed absentee ballots. He argued it was with the voters'
consent, but he admitted he had changed absentee ballots.
Mr. Cole. And if you are----
Senator Cruz. And my point is simple, Mr. Cole. This
Committee can assess what occurred there. But any law student
or any litigant who presented such a one-sided picture of the
fact, conveniently omitting every single fact that is to the
contrary, would not be treated as a credible witness and would
not be treated, as you describe your testimony, as strictly
nonpartisan.
Let me turn briefly to a second issue you brought up, which
was the TIECO case. You said the TIECO case undermines
Sessions' fitness for the job as Attorney General. And
likewise, there are a number of facts that you just omitted
from your discussion.
Number one, the basis of your complaints was submitted to
the Alabama Ethics Commission. And on July 10th, 1996, the
Ethics Commission unanimously dismissed the charges against
Sessions for insufficient facts. Now, you briefly mention that
in your written testimony, but you omitted it from your oral
testimony.
Fact number two, the Alabama State Bar--one of TIECO's
lawyers filed a complaint with the Alabama State Bar, based on
the trial court's order that you quoted, alleging over 20
ethical violations. The Alabama State Bar adjudicated that
matter and on February 16th, 2000, the State bar unanimously
dismissed the complaint. Again, you omitted that fact from both
your written and your oral testimony. That is nowhere to be
found.
But third, most strikingly, the language you rely on as the
basis for your testimony, the Federal Court of Appeals, the
Eleventh Circuit, concluded that that precise language
concerning prosecutorial misconduct was ``particularly
unreliable and misleading.'' It reversed a civil verdict based
on it. And the Eleventh Circuit concluded there was ``no
evidence in the record to support a finding that TIECO's
Federal constitutional rights were violated,'' and concluded
that ``probable cause existed to prosecute TIECO.'' You omitted
that fact that the Federal Court of Appeals profoundly
repudiated that State court ruling you are relying on. And
that, again, is not credible or impartial testimony.
Now, I would ask the Chairman for consent to introduce into
the record the Federal court opinion, the ethics complaint
dismissal, the State bar complaint dismissal, and related
materials. And I would also like to introduce a memo from
Professors Ronald Rotunda and William Hodes concluding that,
``The mere nonspecific allegations of a party uncritically
adopted by a State court judge and rejected by the State
agencies with jurisdiction over ethics complaints cannot
possibly have any bearing on Senator Sessions' ethical standing
today.''
Chairman Grassley. Without objection, so ordered.
[The information referred to appears as submissions for the
record.]
Mr. Cole. Can I respond? No? Can I respond. Just briefly,
and thank you.
First of all, I did not omit that the Ethics Commission
concluded there was not an ethics violation, but that was a
year before the case was dismissed for rampant prosecutorial
misconduct.
Second, I did not omit the fact that the Eleventh Circuit
reversed a lower court decision for introducing that trial
court opinion. I addressed it and I explained that that
Eleventh Circuit decision in no way questioned the factual
validity of the trial court's findings that Senator Sessions'
office engaged in the worst misconduct that he had ever
witnessed.
What the court held was that, because it was hearsay,
because it was hearsay and, therefore, the defendants were not
able to cross-examine the information and because it was very
prejudicial, it was improperly introduced. But the court did
not have before it any facts that would allow it to assess
whether the judge's findings based on the judge's record in the
State trial court were right or wrong. And in fact----
Senator Cruz. So you say the Federal court did not question
the reliability. The quote from the Eleventh Circuit is that
the State court's opinion was, ``particularly unreliable and
misleading.''
Mr. Cole. And what it meant was--but if you read the
opinion, which I did, and, Senator Cruz, you are now presenting
misleading information, because if you read the opinion, the
opinion makes it very clear that the decision is based on a
rule of hearsay and its relation to prejudice. In the abstract
it is a legal ruling, it is not a factual determination in any
way, shape, or form.
And so you present one side, I present another side. I urge
the Committee to look at the facts of this case where Senator
Sessions worked on behalf, closely collaborated with people who
were making campaign contributions to him, filed a 222-count
indictment, every count was thrown out.
Senator Cruz. Mr. Cole, my time is expired, but I would
simply note the Federal Court of Appeals said, and I quote,
``The statement of facts was intended to exculpate TIECO and,
thus, it was self-serving and unreliable.'' That is a verbatim
quote from the Federal Court of Appeals and it is contrary to
what you have just told this Committee.
Chairman Grassley. Senator Franken.
Senator Franken. Before my time starts, can I just note
that Senator Cruz's time went over 4 minutes. And I want to
respond to something Senator Cruz said.
Chairman Grassley. [Off microphone.]
Senator Franken. I know, but can I maybe have a couple of
extra minutes because I want to respond to something that
Senator Cruz said about omitting facts.
Chairman Grassley. [Off microphone.]
Senator Franken. Well, you are the Chairman. Yesterday I
developed this line of questioning with Senator Sessions where
he mischaracterized civil rights cases that he had been
involved in.
He said that he had personally handled--among the 10 most
important cases he personally handled, four of them were civil
rights cases. And I put into evidence testimony from an op-ed
article co-authored by Gerry Hebert.
Mr. Cruz, in following me, said that Mr. Hebert's testimony
in '86 was discredited, that he recanted it and it was
discredited. He did not recant his whole testimony. He recanted
a small piece of his testimony. It was actually in the
recanting of it--was Senator Sessions' favor. And he did it
before--he did it in time so it was before the vote.
It was one little piece where he had misidentified. He said
that Sessions had stopped him from pursuing, or not given him
approval to do a civil rights case, and he had looked back at
his records and got that wrong. Every other part of his
testimony he did not recant, and he was not discredited.
So if the Senator is going after a witness for not being
balanced, I would suggest that the Senator look at his own
methods of making arguments.
Now, I want to know, does anybody here, anybody on this
panel, have any evidence at all, any reason to believe that
there were 3 million fraudulent votes cast in this election?
[Voice off microphone.]
Senator Franken. Yes.
Okay. Now, voting rights is a big deal. It is a really big
deal. And so when we are going to be--we are talking about the
Attorney General here, it is important that the Attorney
General care about voting rights, because that is a part of his
job.
Now, Mr. Brooks, North Carolina. When was that--that was
thrown out by the Fourth Circuit. When was that enacted--was
thrown out by the Fourth Circuit?
Mr. Brooks. I think 2 years ago.
Senator Franken. How many?
Mr. Brooks. I think 2 years ago, I am not sure.
Senator Franken. Yes, 2 years ago, right? So in the
intervening time, there have been elections, right?
Mr. Brooks. Yes, sir.
Senator Franken. And what did the Fourth Circuit say about
how this was targeted?
Mr. Brooks. The Court held that the voter suppression was
intentional, racially intentional, and that it was carried out
with surgical precision with respect to African-American
voters.
Senator Franken. Okay. So in other words, the North
Carolina State Legislature, with surgical precision, went after
African-American voters to prevent them from being able to
vote.
And because we did not have preclearance, there were
elections allowed to happen in which votes were suppressed,
right?
Mr. Brooks. Yes, Senator.
Senator Franken. Is that how our democracy is supposed to
work?
Mr. Brooks. No, Senator. As you well know, that when the
preclearance provision was in effect, for years and years on
end, these kinds of changes were regularly rejected by the
Department of Justice--at least 20 or so a year. And so in the
wake of the Shelby decision, what we have now is a political
landscape in which the violation has to occur, and then
ordinary citizens have to find lawyers, have to find experts,
they have to find organizers, have to reach out to the NAACP to
right a wrong in their democracy, where resources that they do
not have in communities often under siege, civically speaking,
and this is expensive. And it imposes a cost not only on the
litigants, one of whom I walked with from Selma to DC last
year, at 90-some-odd years of age. So this is not merely a
matter of legal costs, but also costs on our fellow citizens.
Senator Franken. Now, because we had Shelby, we did not
have preclearance, and because of that, elections were held in
which Black votes were suppressed. That we know. That we know
is a fact.
Now, if we do not have preclearance, we have--and Senator
Sessions said that this was targeted at the States--of course
it was targeted at States like North Carolina and States that
have a history of doing this. That is for a reason. And we can
get a new formula, as Senator Coons has tried to get passed
through here.
But in the meantime--and does anyone--can anyone guess why
I asked about the evidence on 3 million suppressed votes, or
supposedly fraudulent votes? I think you know why I brought it
up. Because when you are saying that there are 3 million
fraudulent votes, that is your excuse to suppress votes. There
was no--none of the States, nobody came forth with evidence of
any widespread fraud. Zero fraud mainly is what we heard.
And so what I want is--and I will just finish up with this
sentence--I want an Attorney General who is going to protect
people's right to vote. And I do not think, with Senator
Sessions, we are going to have that.
Chairman Grassley. Senator Graham.
Senator Graham. Thank you very much.
Does anybody on the Committee doubt that there are cases of
voter fraud in America? They all said they do not doubt it.
Do you doubt it? If you do, now is the time to speak up.
Mr. Brooks. Senator, various studies have indicated that
when you compare the number of ballots cast in the hundreds of
millions, the number of instances where voters are
impersonating voters for the purpose of casting a ballot are a
literal handful.
So if you look at the research of Ari Berman, any number of
scholars will indicate that it is virtually zero. It is a
relative handful, to hundreds of millions of ballots cast.
Senator Graham. So you are saying there really is no
evidence of voter fraud. What happens if a county has more
votes than there are people in the county?
That does not seem right to me. But anyway, the bottom line
is I think you want to do two things, at least I do--make sure
people can vote, and nobody votes illegally. Indiana has an
approach; North Carolina has an approach. We will keep working
on it.
Mr. Brooks, do you give a scorecard to Members of Congress?
Mr. Brooks. The NAACP does, indeed.
Senator Graham. Okay. Do you know what score was given to
Senator Sessions in the 113th Congress?
Mr. Brooks. The Senator has received a low grade, as in a
failing grade, for years on end.
Senator Graham. Okay. He got 11 percent. What did I get?
Mr. Brooks. Senator, I will have to consult the scorecard
for you.
Senator Graham. I got 25 percent. Hatch got 25 percent.
Grassley got 11 percent. Lee got 11 percent. Cruz got 11
percent. Sasse is yet to be determined. Flake, 29 percent.
Crapo, 14 percent. Tillis, not rated. Kennedy, not rated.
What did the Democrats get on this Committee? Feinstein got
100 percent. Leahy got 100 percent. Durbin got 100 percent.
Whitehouse got 100 percent. Klobuchar got 100 percent. Franken
got 100 percent. Coons got 96.
[Laughter.]
Senator Graham. Blumenthal got 100 percent and Hirono got
100 percent.
Why do--would you say that there seems to be a difference
in terms of the parties and how well they do with NAACP's
legislative agenda?
Mr. Brooks. Yes. The new questions--the report cards are
based on legislation, not party affiliation.
Senator Graham. Well, is it not kind of odd that one party
gets 100 percent and nobody else does very well on our side?
Mr. Brooks. Senator, I do not think it is odd. It simply
reflects the----
Senator Graham. I think it is really odd. I think it--well,
it speaks for itself. Name one--it means that you are picking
things that conservative Republicans do not agree with you on
and liberal Democrats do. I hope that does not make us all
racist and all of them perfect on the issue.
Can you name one person you think would be a good Attorney
General on the Republican side?
Mr. Brooks. Senator, my purpose here, as you well know, as
a witness, is to speak to the nominee's fitness to serve as
Attorney General. And I might note, with respect to our report
card, we have done that for the better part of a century, not
based on----
Senator Graham. If I may, I think that the report card says
volumes about how you view Republican conservatives, and all of
us are in Jeff Sessions' boat when it comes to your
organization. Maybe we are all wrong and maybe you are all
right. I doubt if it is that way.
Mr. Mukasey, you have been Attorney General.
Mr. Mukasey. Yes.
Senator Graham. You know the job pretty well.
Mr. Mukasey. As well as you can learn it in the time that I
was there.
Senator Graham. So what makes you believe that Jeff is
capable of doing the job?
Mr. Mukasey. I think he has all the qualities of passing
issues of competence and knowledge. He has all the qualities of
mind and character that it takes to do the job, plus he has
tremendous skill as a lawyer. He has also got an advantage that
I did not have, which is to say he had 20 years in this body,
so he understands relationships with Congress. It does not have
to be a learned skill for him, and has the dedication to the
rule of law that is required to do the job properly.
I have no hesitation in supporting him.
Senator Graham. Thank you.
Mr. Canterbury, you are--do you work with Democrats and
Republicans at the FOP?
Mr. Canterbury. Absolutely, Senator. Many good friends on
both sides of the aisles.
Senator Graham. Have you found Jeff Sessions willing to
work with the other side when he finds common ground?
Mr. Canterbury. Absolutely. And we have disagreed with
Senator Sessions on issues, but always willing to listen to us.
Senator Graham. Have you found him--he will fight like a
tiger for what he believes in?
Mr. Canterbury. Yes, sir.
Senator Graham. How do you say your name, Peter----
Mr. Kirsanow. Kirsanow.
Senator Graham. You have been a big supporter of Senator
Sessions' immigration position, is that fair to say?
Mr. Kirsanow. That is correct.
Senator Graham. And I have been a big opponent of that.
Mr. Kirsanow. That is correct.
Senator Graham. Your observations about the man I agree
with, substantively, on the issue, I disagree, but I appreciate
you coming forward and speaking.
Mr. Vazquez--is that right?
Sergeant Vazquez. Yes, sir.
Senator Graham. If I have my way, then we will find a way
to replace the Executive orders with legislation to protect the
800,000 people who have come out of the shadows. Look forward
to working with you on that. Do you support deporting people
who have committed felonies?
Sergeant Vazquez. I believe that the real spirit of
immigration when coming to this country is to come here to
pursue a better life. I can speak for the people I know, my
parents, right? We came here to work. We came here to pursue a
better life, and----
Senator Graham. My question is, do you support deporting
people who have committed felonies?
Sergeant Vazquez. If you are going to come here to work and
you are here to do other issues, then perhaps you are not
representing us, and you should not be given the same
opportunities.
Senator Graham. Thank you all.
Chairman Grassley. Senator Coons.
Senator Coons. Thank you, Mr. Chairman, and I would like to
thank the witnesses of this panel today for their moving
testimony and for sharing with us their experiences and their
struggles, their work for public safety, for justice, for civil
liberties, and civil rights.
The role of an Attorney General is not to be a bystander or
a mere witness to the passing of time. Fundamentally, the top
law enforcement officer of our country has an obligation to
enforce the law. But that is too simplistic a framing. In a
world of limited resources and competing demands, not every
violation of law is enforced equally at all times in every
situation.
The Attorney General of the United States has enormous
power to shape the strategy of the Justice Department and
deploy its resources of $27 billion and 100,000 employees. And
at times we heard yesterday a more moderate, more reflective
Senator Sessions, who gave encouraging answers to a number of
pointed questions. But I am very concerned that Senator
Sessions' 30-year record reflects many extreme positions far
out of the mainstream, not just of our legislative work here,
but out of the Republican Party.
More than that, I am concerned that Senator Sessions'
record demonstrates that when there was an opportunity to stand
up for the vulnerable, to promote civil rights or advance
justice, he did not take action, or even actively opposed
bipartisan work that would advance justice. So I have just a
few quick questions.
First, I would like, Mr. Chairman, to introduce into the
record a letter from Coretta Scott King that was sent to the
Chairman and Ranking--at that point, Senator Biden--back in
1986 that was apparently omitted from the record, that I think
ought to be made a part of the record.
[The letter appears as a submission for the record.]
Senator Coons. And I would like to first ask, if I might,
Dr. Brooks about Senator Sessions' record. He has been
criticized for actions he took ranging from the 1980s to the
current day. And based on his record, many have expressed
concern that, as Attorney General, he might not fully enforce a
variety of civil rights laws and help advance them.
And after the Supreme Court's decision in Shelby County
striking down preclearance--the most important piece, I would
argue of the Voting Rights Act--a Voting Rights Act that was
really forged in the crucible of the march in Selma.
A number of us worked to try and find a fix that addressed
his concerns about the formula being outdated, that the formula
was based on things that had happened decades ago. And despite
diligent, disciplined work to try and find a bipartisan
solution, we did not find a partnership with him.
Tell me, do you believe that Senator Sessions as Attorney
General would not just be a witness to actions, but would act
to advance justice?
Mr. Brooks. Based upon the record, we do not believe that.
And the reason being here is that the Voting Rights Act has
been debilitated in the wake of Shelby. We have seen these
voter ID laws affecting at least 21 million Americans. We have
seen these voter ID laws based upon the false predicate of
voter fraud. We saw that in Alabama. We have not heard the
Senator speak out on the voter suppression in his own State.
A voter ID law in that State, or similar to the one in
Alabama, has been invalidated both in the Fourth Circuit and in
the Fifth Circuit, North Carolina and Texas. The Senator has
referred to the Voting Rights Act as--or I should say, the
debilitation of it--as good for the South. He has referred to
the Voting Rights Act as intrusive. He has not spoken in any
way commendable, has not done anything to strengthen the Act in
the wake of Shelby, has not recognized the voter suppression in
his own State, has not spoken out in any way significantly in
terms of the voter suppression that has occurred in the wake of
Shelby. So we have no reason to be confident that as a chief
law enforcement officer of the country, that he would do all
that is necessary to protect the rights of Americans. In other
words, being a prosecutor is not merely a binary matter; you do
it or you do not. There is a matter of discretion, there is a
matter of judgment, there is a matter of allocation of
resources, and a matter of using the resources of the
Department of Justice to bring about justice. We have no reason
to be confident that he will do that.
Senator Coons. And to make it clear, Dr. Brooks, Senator
Franken was just asking about this. The allegation that there
were 3 million fraudulent votes in this last election was made
by the President-elect, without any foundation. We have had
hearings in this Committee. There have been hearings in other
places and in other legislatures. There is no evidence of
widespread fraud to justify the voter ID statutes that have
been enacted. And subsequent reviews, not just in North
Carolina but in other places, have found them to be
unconstitutional, yet the nominee for Attorney General has been
silent about those issues and concerns. Is that your case?
Mr. Brooks. That is in fact the case. And let us note this.
Let us just be very clear about this. Empirically speaking, one
is as likely to see the tooth fairy standing next to Santa
Claus at the ballot box as to encounter an actual instance of
voter impersonation, voter fraud. Those are simply the facts.
So for this kind of voter fraud to be a predicate for voter
suppression is a shame in our democracy. There is no such case
of voter fraud on the magnitude that has been described by the
President-elect.
Senator Coons. Thank you, Dr. Brooks.
Mr. Cole, the ACLU has published a report outlining a
number of concerns about Senator Sessions' nomination, ranging
from voting rights to criminal justice to LGBT rights to
torture to religious freedom.
I would like to note that in the audience today, I have
marked, Mr. Khizr Khan is here with us. He has spoken
passionately about his son's sacrifice for our Nation in combat
in Iraq and has submitted a letter that I think is worth review
by all Members. I would like to submit it for the record, if I
might.
[The letter appears as a submission for the record.]
But Mr. Chairman, Mr. Khan, in his letter, spoke about his
Muslim faith, about what it means to be an American and what it
means to have real concerns about the Attorney General nominee
and his commitment to the enforcement of religious liberty and
protection of civil liberties.
Out of all the issues raised by the ACLU, what concerns you
most?
Mr. Cole. Well, I think it is the pattern, the pattern of
abuse when he exercised prosecutorial power, and the pattern
while he was Senator of not just an ideological difference as
some have put it, but of blindness at best and hostility at
worst toward the interests and the rights that the Attorney
General of the United States is--has a responsibility to
protect.
So when you say--you can vote against the Hate Crimes Act,
but when you say the reason I am voting against the Hate Crimes
Act is because I do not think gays and lesbians and women are
victims of discrimination, that is a blindness. When you say
that Islam is a toxic ideology, that is hostility.
When you defend the President when he proposed--the
President-elect, when he proposes a blatantly unconstitutional
action using religion as a test for immigration, and you in the
Senate are one of four people who defend that position and
oppose a resolution that does no more than underscore what the
Establishment Clause requires, which is that Government
officials be neutral vis-a-vis religion, that gives us great
pause.
So I think it is the entire record here. It is not an
individual disagreement, it is about a failure to recognize
discrimination and a hostility to some of the very rights that
the Justice Department is designed to protect.
Senator Coons. Thank you both for your testimony. Thank
you, Mr. Chairman.
Chairman Grassley. I want to put in the record the fact
that there has been a lot of discussion of the Perry County
case. It is worth noting that the Turner's son, Albert F.
Turner, Jr., thinks Senator Sessions handled their case fairly.
He said this in the letter, ``My family and I have literally
been on the front line of the fight for civil rights my whole
life, and while I respect the deeply held positions of other
civil rights advocates who oppose Senator Sessions, I believe
it's important for me to speak out with regard to Senator
Sessions personally''--I appreciate Mr. Turner's attitude--``he
was a Federal prosecutor at the Federal level with a job to
do.'' So without objection, I will put the statement in the
record and turn to Senator Blumenthal.
[The letter appears as a submission for the record.]
Chairman Grassley. Oh. Well, did you show up before I
called on him?
Senator Blumenthal. I would be happy to yield, if the
Chairman so wishes.
Chairman Grassley. Senator Tillis, go ahead. I am sorry. I
did not see you come in when I called him.
Senator Tillis. Thank you, Senator Blumenthal. Actually, I
have got to preside before too long, so this will be my last
opportunity. So, thank you very much for the courtesy.
Mr. Vazquez, I want to thank you for your service and I
want to thank you for coming up and speaking on behalf of
folks, where I for one happen to be on the spectrum where I
think some sort of immigration reform policy is something I
hope we accomplish over the next couple of years. I look
forward to working with other colleagues on this issue.
But now I want to go to Mr. Kirsanow. Am I pronouncing your
name right, Mr.----
Mr. Kirsanow. Close enough.
Senator Tillis. Okay. Kirsanow. You sat on a panel that I
referred to in general yesterday. I do not know if you recall
the panel where it was primarily Senator Sessions and myself in
a kind of a debate club in the Immigration Subcommittee, but I
pointed to that as an example of his sense of fairness, because
we came to that Committee with very different views about the
immigration issue.
I do share many of the concerns--I am going to ask you a
question in a moment about it--that you expressed. But what I
was most struck by were the multiple rounds of discussions that
we had and how quick he was to give me another round when he
knew full well that what I was going to talk about was at odds
with what he, as the Chair of that Committee, really wanted to
have the discussion be about. So that, to me, is just another
testament of the fair nature of Senator Sessions and I look
forward to supporting his nomination.
Mr. Kirsanow, I actually hope--and this relates to a
question that Senator or Chairman Grassley asked yesterday. I
actually hope, and do you believe, that an Attorney General
Sessions would likely prosecute examples of where visa programs
are being abused and calling out the people who are abusing the
work visa programs that we have today? Do you think he is going
to do that?
Mr. Kirsanow. I am fairly certain he will, based on his
public actions and the discussions we have had. He is concerned
about enforcing the law as it exists, fairly, impartially. I
think one of the frustrations that he has expressed, as many
people have expressed, is that existing immigration laws and
other laws simply are not being enforced. As General Mukasey
has indicated, it is his job to enforce the law as an Attorney
General as opposed to a legislator who makes the law.
Senator Tillis. And Mr. Vazquez, the reason why I like the
answer to that question is that there are those of us who want
to make progress on immigration reform need to get to the facts
around where the abuses are occurring and how we eliminate
them, because once we eliminate the abuses, then we can have
the legitimate discussion about labor shortages and demographic
trends that are probably going to get--have to get us to the
right place on allowing legal immigration to occur.
But until we have a top law enforcement official who is
willing to actually make sure that the law is followed today so
that I can come back and say that there is a need for migrant
workers, there may be a need for highly skilled workers, and we
have an Attorney General who is actually enforcing the law to
get rid of the abuses that take us further away from that
result?
I think, interestingly enough, that an Attorney General
Sessions may get us closer to a solution on immigration reform
that both you and Mr. Kirsanow may find acceptable over time.
Maybe idealistic, I have only been in this job for a couple of
years, but having somebody who will get to the facts and who
will actually get us to a point to where we can discuss the
facts in this meeting about the reality of immigration reform
and demographic trends is something I think that Mr. Sessions
is going to help us do.
Mr. Thompson, you have spent a fair amount of personal
time--if you roomed with Senator Sessions, then that means you
spent a lot of personal time with him. Tell me a little bit
about his experience as U.S. Attorney that you think make him
highly qualified for the role of Attorney General, and also
your personal observations with him when he was in the role as
U.S. Attorney?
Mr. Thompson. So my response to your question, Senator,
really will go to some of the questions that have been asked
about Senator Sessions' ability and willingness to enforce the
laws. Over the years, I have known, you know, some bad
prosecutors and over the years I have known some good
prosecutors.
I can assure you that Senator Sessions will be aggressive
with respect to potential violations of the law. He will strike
hard blows, he will not strike foul blows. And I do not think
anyone here should have any concern about his willingness to
enforce our laws fairly, impartially. He is a professional. He
will be a complete professional in this job.
Senator Tillis. Mr. Canterbury, I thank you and all the men
and women who serve in our communities keeping us safe. There
is another element to, I think, an Attorney General Sessions
that I believe will help us get through the variations that we
have in illegal seizures. I know that the Chair has had some
concerns with forfeitures and seizures.
I think a part of that has to do with the past execution of
the current Department of Justice, and maybe the leadership in
the past. I firmly believe that this is another issue to where
maybe we can have a discussion about a proper execution of
seizures and forfeitures that will make people in this
Committee who are concerned with abuses less concerned with
that. Would you agree with that statement?
Mr. Canterbury. Absolutely. I mean, we stand ready to work
with the Committee as well to find a solution to the issues on
the less-than-credible seizures. But the vast majority of the
seizures, as Senator Sessions has commented many times, are
crooks paying for law enforcement.
Senator Tillis. And I tend to agree with that. Because my
time is limited and I want to stay under, particularly in
deference to Senator Blumenthal, I just want to thank General
Mukasey. I actually had a question for you, but I am not going
to ask it so I will not go over, except to thank you because
you may be the first attorney who has come before a panel in
this Judiciary Committee who answers yes/no questions with
either yes or no. So, thank you very much.
I yield back the balance of my time.
Chairman Grassley. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Thank you all for
being here. This is a very distinguished panel and each of you
brings a perspective that is very valuable to our Committee.
Let me begin with Mr. Thompson, who has a wealth of
experience, both as a private practitioner and as Deputy
Attorney General.
Mr. Thompson. And you used to be my Senator.
Senator Blumenthal. That is correct. And we welcome you
here. I am very concerned, as Senator Coons articulated so
well, about a number of Senator Sessions' views on issues which
seem to be out of the mainstream and hostile to basic civil
rights and liberties, his views on immigration, his statements
about Muslims, and his views on voting rights.
You served as Deputy Attorney General. You were responsible
for enforcing the Voting Rights Act. I assume that you feel
that it served a valid purpose. Do you agree that the Shelby
County v. Holder decision was ``good news,'' which is what
Senator Sessions called it?
Mr. Thompson. I am not that familiar with that case,
Senator, but let me respond this way, please.
Senator Blumenthal. Well, let me just tell you, you may not
be familiar in depth with it but essentially it gutted the
act's most important enforcement provisions and it lifted the
obligation, which you were responsible for enforcing as Deputy
Attorney General, on many States with a history of voting
discrimination to clear voting changes with the Department of
Justice.
Mr. Thompson. As I understand the decision and as I
understand the voting rights laws, the decision did leave in
place provisions that allowed the Department of Justice to deal
with important areas of voting rights. I now live in the South
and one of the things about the way we have administered and
implemented voting rights is that--I can tell you, I have lived
in your home State and I have lived in the South, and I can
tell you there are problems in both States.
So for a lot of people who live in the South, the idea to
be--the idea in this day and age to be subject to provisions
that Connecticut, for example, is not subject to, or other
northern States are not subject to, is something that is hard
to swallow for a number of people.
Now, let me respond about Senator Sessions, what we are
talking about in terms of his ability and willingness to----
Senator Blumenthal. Let me just----
Mr. Thompson. Enforce the law. I--we all go about choosing
our friends in different ways. I have friends with all kinds of
different political philosophies, all kinds of different
beliefs, liberal friends, conservative friends. But when you go
to the character of Senator Sessions, as someone who is going
to be the Attorney General of the United States and his
willingness to enforce all laws in an aggressive and fair and
impartial manner, I have no problem with him.
I do not--I think he will be a very good Attorney General.
You may not believe in that in terms of my own background, but
I have practiced law for 43 years. I have spent a lot of time
being concerned about diversity in our profession. I have spent
a lot of time being concerned about equal rights. Jeff Sessions
will be a very good Attorney General and I have no problem with
his character as it relates to his willingness to enforce our
laws.
Senator Blumenthal. Would you not agree that there is a
continued need for enforcement of voting rights laws in the
South, and other areas of the country? I am not singling out
the South.
Mr. Thompson. Yes. Yes.
Senator Blumenthal. And would you not urge Senator Sessions
that a decision that essentially guts one of the essential
features of that law is not really good news for the South or
the country?
Mr. Thompson. I have never been a legislator, but that
really will not be his concern as Attorney General. That will
be the concern of this Committee in terms of dealing with
legislation that might change and improve the voting rights
laws.
Senator Blumenthal. Thank you.
Mr. Vazquez, have you submitted information to the Federal
Government in connection with your status, and do you know of
others who have as well who could be subject to enforcement
actions as a result of information that they provided the
Federal Government?
Sergeant Vazquez. I have--obviously I am now a U.S.
citizen, but before--before this was the case I did submit a
lot of information and I would have been subject to deportation
before then. I know friends that have been--they have submitted
all their information, there are beneficiaries on their DACA
that are currently in that situation that could be--possibly be
affected by a cessation of DACA.
Senator Blumenthal. Yesterday, I questioned Senator
Sessions about the status of those individuals who have
submitted information and they find that information, in
effect, used against them, which I think would be drastically
unfair.
And I asked him, as the Nation's legal conscience--not just
the President's counsel, but he is the Nation's lawyer--to
exercise some moral and legal oversight to assure that there is
no unfairness against those individuals. They have, in fact,
trusted the Government. They have entrusted the Government with
that information. It is not a criminal double jeopardy issue,
but my feeling is that many of them may be in a sense victims
of their own honesty, coming forward to provide that
information.
Have you found among your friends a feeling of uncertainty,
apprehension, fear that that information could be used against
them?
Sergeant Vazquez. The biggest sense that I get from my
friends, it is the sense of fear, mostly due to the fact that
we are not sure if DACA is going to continue. The fact that
their names are out there, they raised their hands saying they
are undocumented in the United States, and the fact that the
top law enforcement of the country has voted against them every
single time he has gotten a chance--their biggest issue is that
he mentioned that he is not going to be able to deport 800,000
people, and the fact that that means that we are going to
remain in the country. Then how is that going to give us
confidence to report crimes against us and feel that that is
going to be processed in a judge manner?
Senator Blumenthal. Thank you. Thanks. Thanks to you. Thank
you, Mr. Thompson, both of you, for your very helpful answers.
Thank you.
Chairman Grassley. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
I listened to your testimony this morning and it is clear
to me you all are very, very smart people. If I struggle with
your name, it is because I cannot see your name over here in my
little corner, but I am going to try to be brief.
How many of you--you can just give me a show of hands--how
many of you support Senator Sessions?
[A showing of hands)
Senator Kennedy. And how many of you oppose?
[A showing of hands]
Senator Kennedy. Does anybody know how many lawyers there
are in the United States? Do you know, Professor? Any idea?
Mr. Cole. Some would say too many.
[Laughter.]
Senator Kennedy. Yes. I knew you were going to say that.
Mr. Cole. I do not know the precise number.
Senator Kennedy. Okay. A couple hundred thousand, at least.
I am a lawyer.
Mr. Cole. That is in DC alone.
Senator Kennedy. Yes, really. I do not know how many
Democrats and how many Republicans there are, but is there
anybody on this panel who doubts that if the President-elect
had nominated an attorney to be Attorney General who happens to
be a Republican, that the Democrat party could not produce
witnesses to say that he would be a bad Attorney General? Does
anybody doubt that in this environment?
[No response].
Senator Kennedy. Is there anybody here who doubts that if
the President-elect had nominated a Democrat, an attorney who
happens to be a Democrat, to be Attorney General of the United
States, that the Republican Party could not or would not
produce witnesses to say that he would be a bad Attorney
General? Does anybody doubt that?
[No response].
Senator Kennedy. Thank you very much.
Chairman Grassley. Senator Hirono. Maybe I should say what
our plans are. I believe that we have all the questioning done
on our side, so when these two are done, it would be my idea to
adjourn, and then at 1 o'clock, bring back the panel that is
scheduled for the next one after this panel. So we have
informed people that regardless of when we quit here, we will
be back at 1 o'clock.
Go ahead, Senator from Hawaii.
Senator Hirono. Thank you, Mr. Chairman. I thank all of the
panelists this morning. Dr. Brooks, I have some questions for
you. Post-Shelby, the burden of going forward to show that a
voter requirement law is discriminatory now rests with
organizations, individuals such as the NAACP, correct?
Mr. Brooks. Yes, Senator.
Senator Hirono. And prior to Shelby, the preclearance
really put the burden on States to show that whatever laws they
were contemplating in this area, they have to show that this
was not a discriminatory act on their part.
Mr. Brooks. States with a history of----
Senator Hirono. Yes, I realize.
Mr. Brooks. Yes.
Senator Hirono. So in this area of voting rights, there is
no question in my mind that who bears the burden to go forward
to prove something has a very high burden. At this point, that
burden is really up to organizations like yours unless the
Attorney General comes in, as they did in the North Carolina
and Texas voting cases, to come in and weigh in and be a party.
So I asked Senator Sessions yesterday whether he would be
just as vigorous in paying attention to these kinds of laws
that have been enacted, by the way, by States, some 13 or 14
States now post-Shelby. So my question to you is, recognizing
that the Attorney General has very broad prosecutorial
discretion, the Attorney General cannot prosecute every
violation of law. That is--even he admitted yesterday that that
would be pretty hard, given the resources, so the Attorney
General has to make some priority decisions.
So in your view, how high a priority was the enforcement of
voting rights, such as the remaining Section 2 of the VRA, and
civil rights laws under Jeff Sessions as Attorney General? How
high a priority would those kinds of enforcement actions be?
Mr. Brooks. Senator, based upon the record, we have no
reason to believe it would be a high priority. Where--in the
two States that you noted, North Carolina and Texas, our State
conferences of the NAACP, with our lawyers, went to court. We
are, in fact, in many ways partners with the Department of
Justice.
That partnership presupposes that the Department of
Justice, the leadership, the prosecutors are willing to see
voter suppression. When I began my career at the Department of
Justice in the Civil Rights Division, one of the things that I
was advised by my supervisors, by my management, was the first
thing you do when you conduct an investigation is reach out to
the local branch of the NAACP. So we bear a heavy burden, but
it is a burden that we would like to shoulder with a Department
of Justice that is willing to see what we see.
Senator Hirono. Ms. Swadhin, would you have some concerns
about how high a priority prosecution of hate crimes, crimes
against the LGBT community would be under Jeff Sessions as
Attorney General?
Ms. Swadhin. Absolutely, Senator Hirono. I think it is
worth saying that the Violence Against Women Act is one of the
pieces of legislation in this country that has always enjoyed
strong bipartisan support. In fact, Senator Leahy was the
sponsor of the 2013 version. But Senator Crapo on the
Republican side co-authored the bill, and there were only 22
Senators who voted against it.
Senator Sessions was one of those, so he broke with the
majority of the Republican Party to vote against that 2013
version. He argued yesterday that the reason he voted against
that 2013 Violence Against Women Act was because he had
concerns about fiscal mismanagement and wanted harsher
penalties, but the fact is that the bill that passed did
include provisions to include fiscal and reporting accounting
to address the rape kit backlog, to strengthen the prosecution
of sex crimes. The big difference between the bill that passed
and the so-called alternative bill that he was trying to argue
was, you know, the thing that he voted for, was the non-
discrimination clause for LGBT survivors.
That--those discrimination--non-discrimination provisions
were put into the bill that Senators Leahy and Crapo co-
authored because national networks of victims' service
advocates were hearing from people on the ground, domestic
violence shelters, rape crisis centers, counselors, that LGBT
survivors were being discriminated against.
So for Senator Sessions to go out on a limb, break with the
majority of the Republican Party and vote against that
legislation, to me, shows he has a strong bias against the LGBT
community, which is also shown in his voting record against the
Federal Hate Crimes Act that did also pass with a lot of
bipartisan support, the Shepard-Byrd bill, and he of course
also voted for a constitutional ban on same-sex marriage.
Senator Hirono. Thank you.
Mr. Vazquez, thank you for coming and testifying. As an
immigrant myself, I certainly share your concerns about what
would happen to the 800,000 DREAMers who have come out of the
shadows if DACA is rescinded.
Now, the Department of Defense has a program whereby they
will accept DREAMers, if they have come out to participate in
DACA, to enlist. And, clearly, if DACA is rescinded, then the
Department of Defense program will also end. So as someone who
is serving in the military, what do you say to people who
question DREAMers who want to put on a uniform, serve our
country, defend our country?
Sergeant Vazquez. Thank you, Senator Hirono. I would say
that having deployed and having seen combat, I care more than
the person that was right next to me was willing to commit the
same sacrifices that I was. And to question the reason why a
lot of--why I would join the military, being that this country
raised me since I was a young child, I would--I would say that
they definitely need to get to know one of us because that is
not necessarily a fair statement, as to the reasons why we join
the military. And I think that the mere fact that students
are--young people that are benefited by DACA are willing to put
their lives on the line to make that statement is something
powerful to--to show.
Senator Hirono. Thank you. I am running out of time, but I
had a very short question for, again, Dr. Brooks regarding
consent decrees with police departments. How important are
these consent decrees, that they remain in place?
Mr. Brooks. Critically important, when you cross the--
criss-cross the country from Baltimore, to Ferguson, to
Cleveland. The consent decrees provide a kind of bridge of
accountability between police departments and the community
that are enforceable. And bear in mind, this is not something
that is imposed, but the parties agree to. And so they have
legitimacy; they are an effective tool for the Department of
Justice, and in a moment in which we have 2,100 Americans who
lose their lives at the hands of the police over the course of
the last 2 years, when a young Black man is 21 times more
likely to lose his life at the hands of the police, and where
you have predatory policing and these viralized videos of
police-involved killings, consent decrees offer a measure of
reassurance that someone is paying attention, a department is
being held accountable, and that the community has a role to
play that will be recognized by the courts. So, they are
critically important.
Senator Hirono. And I want to note that the vast majority
of police departments, 18,000 or so, they are doing the right
thing. There are about 20 consent decrees that we are talking
about.
Thank you very much, Mr. Chairman.
Chairman Grassley. Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman.
I thought I would start with a kind of a different topic
with you, Mr. Cole. It is about the Freedom of the Press. My
dad is--was a long-time reporter with a Minneapolis paper, and
it has been something that has been important to me my entire
life. I actually asked Senator Sessions about this because he
did not support the Free Flow of Information Act that we
considered in this Committee.
And then I specifically asked about how, in 2015, the
Attorney General had revised the Justice Department rules for
when Federal prosecutors can subpoena journalists or their
records, and also Attorney General Holder had committed to
releasing an annual report on any subpoena issued or charges
made against journalists and committed to not to put reporters
in jail for doing their jobs.
I was not really able to get a straight answer. Senator
Sessions said he would look back at the rules, and I will ask
him on the record about it, so I do not have a concrete answer.
But I just wondered if you could comment on the importance of
the Freedom of the Press and some of these issues I raised in
trying to keep these rules in place.
Mr. Cole. Well, thank you, Senator Klobuchar. The Freedom
of the Press is one of the critical aspects of our
constitutional order. It is--it serves a critically important
checking function on government overreach and it performs that
function, especially critically, in times when one party
controls all the branches of the Federal Government.
So the Freedom of the Press is absolutely critical. You
look back and you look at the role that the press played in
Watergate, and you look forward and you imagine what kinds of
investigations might need to be undertaken in light of some of
the allegations we have heard recently about Russia and the
Trump campaign. I think it becomes very clear that our
country's democracy depends upon protection of the Freedom of
the Press.
Senator Klobuchar. Thank you very much.
Mr. Canterbury, thank you for being here. You have a number
of members in our State and I enjoy working with them. I know
we have worked together on a number of things.
I was not able to ask Senator Sessions yesterday, with our
time limits, about the COPS program. As you know, in the House
it has tended to be more bipartisan. I lead the bill in the
Senate and I did get Senator Murkowski, the Republican of
Alaska, who is doing it with me. But could you comment on the
importance of that program, and maybe you will work with me in
working with the Attorney General to get his support for this
program.
Mr. Canterbury. It is a very important program. I think
that with the sharp decrease in the staffing levels around the
United States, that that bill is very important, especially in
the major cities that have a rising crime rate. We will be glad
to work with the Attorney General, and obviously with this
Committee, to do anything to help move that program forward. We
have a real problem with recruitment and retention of police
officers.
Senator Klobuchar. Very good. I know that is an issue and
we want to recruit police officers, get more diversity into our
police, more women, and just in general, recruit more police
officers. So, I appreciate that, as well as work on training
issues. That is something I hope we will focus on in this
Committee. So, thank you.
Mr. Brooks, I asked yesterday--my lead questions were about
the Voting Rights Act. I know a lot of my colleagues have
focused on those issues as well today, but I just wanted to go
back--I came in--I had another hearing in the Commerce
Committee for Elaine Chao. I heard Senator Graham, my friend
who I just traveled with for a week in Ukraine and other
places, talking about the voter fraud issues.
I used to prosecute these cases because I was the
prosecutor for our biggest county in Minnesota, over a million
people, and I know we would studiously, with an investigator,
go through every report. In almost everything that was reported
as a potential fraud, it was a father and son with the same
name and it was not fraud at all. I think we had one guy that
said to our investigator on the phone, over 5 years, that yes,
he had voted twice because he felt he could not get his views
expressed, and then of course we charged him with a crime.
Then we had another person--and this is over 8 years in the
office--a husband and wife, where a school district line had
split down the middle of their house and they decided that
should allow them to vote twice. But these were the cases of
fraud that we encountered. In fact, this is backed up by the
numbers.
One study found just 31 cases of voter fraud out of 1
billion votes cast. I just think it is really important for
people to understand how rare this is. And I know you know
this, and why it is so important to look at the other side of
the ledger, which is doing everything to make it easy for
people to vote.
My State had the highest voter turnout in the Nation in the
last election. Iowa was close. It does not necessarily mean you
have a Democrat or Republican in office, as we know from our
two States. Wisconsin is another State with high voter turnout.
I just think it should be such a priority to get more people
out to vote, and if you could talk about that.
Mr. Brooks. Certainly. The NAACP as an organization, we
believe that the right to vote is a civic sacrament. We honor
it. We literally have members of our organization who have laid
down their lives for the franchise. We dedicate tremendous
resources to ensure that people vote.
In 2012, we led the Nation in terms of voter mobilization.
These are grassroots volunteers. But when we talk about voter
fraud, it suggests somehow that there are so many people who
want to vote, they are willing to commit a crime to vote. That
is not the case. We need more people to vote. The NAACP has
focused on removing the barriers from voting, the obstacles to
vote. We do so in a bipartisan--or I should say, excuse me, in
a nonpartisan way--all across the country.
Senator Klobuchar. Thank you so much, Mr. Brooks. I
appreciate that.
I had one last question of you, Mr. Mukasey. We worked well
together when you were the Attorney General, and I know that
another Senator had asked you about the importance of an
independent Attorney General, but I wanted to just ask you a
question about the U.S. Attorneys. I know when you came in, you
made some changes across the country with some of the U.S.
Attorneys and you came in, in part, because there were issues
of political influence with regard to some of the U.S.
Attorneys' Offices across the country. We certainly do not want
to go back to that again. So could you talk about the
importance of independent U.S. Attorneys and that they are
insulated from politics?
Mr. Mukasey. The fact is that U.S. Attorneys, as you know,
are political appointees. They are appointed by the President.
Senator Klobuchar. Right. Yes.
Mr. Mukasey. That said, once they are appointed, their
charge is then to do essentially what the Attorney General's
charge is to do, which is to enforce the law. And they have to
recognize, and do recognize, that as soon as they take the
oath, that is their charge. And they have to be supported in
that by the Department, which is to say, the Department has to
back them up when they are conducting investigations that have
merit and not yield to political pressure, if there is any. It
is a rarity, too, that you find somebody trying to lean on an
investigation, but there has to be resistance to that and it
has to be backed up by the Department. I think if there is that
kind of relationship between the Department and the U.S.
Attorneys, then there will be justified public faith in law
enforcement. If there is not, there will not, and that is very
damaging.
Senator Klobuchar. Thank you very much. I appreciate it.
Thank you all.
Chairman Grassley. I thank all of you for your testimony.
It has been very beneficial for both those opposed to and those
in favor of Senator Sessions for Attorney General.
The hearing will stand in recess until 1 o'clock.
[Whereupon, at 12:36 p.m. the Committee was recessed.]
[Whereupon, at 1:12 p.m., the Committee reconvened.]
Chairman Grassley. Welcome to this panel. I have just got
three or four sentences I want to read and then I will
introduce the panel.
We have come back this afternoon for our third and final
panel. We have done this--we have not done this when we have
held hearings for the past several Attorneys General, but
Ranking Member Feinstein called me last week and made a special
request for this panel and I am doing my best to conduct this
proceeding fairly.
We will hear from each witness for 5 minutes. We have
agreed that we will not ask any questions of the witness, and
we will adjourn when we have heard the last witness.
Now I would like to introduce the witnesses.
Mr. Leahy. I have about a 30-second----
Chairman Grassley. Go ahead right now then.
Mr. Leahy. Okay. Mr. Chairman, we know that the Attorney
General is responsible for protecting the civil and human
rights of Americans, and that is why many are worried, as you
see in these hearings.
Senator Booker, Congressman Lewis, and Congressman Richmond
bring to the discussion an important perspective about the
basic rights enshrined in the Constitution that we try to form
a more perfect union. That continues with every generation.
Congressman Lewis has been a friend of mine for decades, we
served together, and he nearly gave his life for that effort.
I invited Congressman Lewis to this Committee before for
important conversations about marriage equality and voting
rights, and the stakes are just as high. I am sorry we have
broken with Committee tradition and made these Members in
Congress wait till the very end of the hearing to speak. That
is not the way I, as Chairman, would do, and other Chairmen
have. But it is what we have.
But I commend Senator Booker and Representative Lewis and
Representative Richmond for their courage. I am proud to serve
with them. I thank them for being here.
Chairman Grassley. Thank you, Senator Leahy.
My colleague, Senator Booker, is from New Jersey. I know
him well. We all know him and we appreciate your coming over to
testify.
We will hear from Mr. Willie Huntley. Mr. Huntley is a
former Assistant U.S. Attorney in the Southern District of
Alabama who worked under Senator Sessions when he served as
U.S. Attorney there, and he has known Senator Sessions for
nearly 30 years.
Then we will hear from a well-known civil rights leader,
Representative John Lewis, who represents Georgia's 5th
District. Welcome back to the Committee, Congressman Lewis. It
is always good to have you here.
After Representative Lewis, we will hear from the Honorable
Jesse Seroyer, who served as U.S. Marshal for the Middle
District of Alabama 2002 to 2011. He first got to know Senator
Sessions in 1995 when he worked for him in the Alabama Attorney
General's Office.
Next, we will hear from Representative Cedric Richmond, who
serves the people of Louisiana's 2nd Congressional District,
and is Chair of the Congressional Black Caucus. Welcome to the
Committee, Congressman Richmond.
Finally, we will hear from Mr. William Smith. Mr. Smith
worked for Senator Sessions as the first African-American
General Counsel on the Senate Judiciary Committee. He has known
Senator Sessions for 20 years, and we know him because of that
service as a staff person here as well.
Welcome to all of you. We will start with Senator Booker.
STATEMENT OF HON. CORY A. BOOKER,
A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Booker. Thank you, Chairman Grassley. I want to
thank Senator Leahy as well, as well as the distinguished
Members of this Committee. I know it is exceptional for a
Senator to testify against another Senator nominated for a
Cabinet position, and I appreciate the opportunity you have
given me today.
I work closely with many of you on this panel on both sides
of the dais on matters related to criminal justice reform, and
you know just how deeply motivated I am by the many issues our
next Attorney General will heavily influence, especially the
crisis of mass incarceration.
I know that some of my many colleagues are unhappy that I
am breaking with Senate tradition to testify on the nomination
of one of my colleagues, but I believe, like perhaps all of my
colleagues in the Senate, that in the choice between standing
with Senate norms or standing up for what my conscience tells
me is best for our country, I will always choose conscience and
country.
While Senator Sessions and I have consistently disagreed on
the issues, he and I have always exercised a collegiality and a
mutual respect between us. Perhaps the best example of this is
the legislation we co-sponsored to award the Congressional Gold
Medal to those foot soldiers who marched at Selma. One of the
foot soldiers is sitting next to me now.
This was a blessing and an honor to me because in 2015, a
retired judge, who was White, told me that it was those brave
marchers on the Edmund Pettus Bridge who inspired him as a
young lawyer in the 1960s to seek justice for all in New Jersey
and begin representing Black families looking to integrate in
White neighborhoods, Black families who were turned away and
denied housing.
One of those families was mine. I am literally sitting here
because of people, marchers in Alabama and volunteer lawyers in
New Jersey, who saw it as their affirmative duty to pursue
justice, to fight discrimination, to stand up for those who are
marginalized. But the march for justice in our country still
continues, it is still urgent.
I know also, though, of the urgency for law and order. I
imagine that no sitting Senator has lived in the last 20 years
in higher crime neighborhoods than I have. I have seen
unimaginable violence on American streets. I know the
tremendous courage of law enforcement officers who put their
lives on the line every single day to fight crime in America.
I want an Attorney General who is committed to supporting
law enforcement and securing law and order, but that is not
enough. America was founded, heralding not law and order, but
justice for all. Critical to that is equal justice under the
law. Law and order without justice is unobtainable. They are
inextricably tied together. If there is no justice, there is no
peace. The Alabama State troopers on the Edmund Pettus Bridge
were seeking law and order. The marchers were seeking justice,
and ultimately a greater peace.
One of the victories of the modern civil rights movement
was the 1957 Civil Rights Act, which in effect made the
Attorney General not only the chief law enforcement officer of
the United States, but also vested in that office the
responsibility to pursue civil rights and equal protection for
all of America.
Senator Sessions has not demonstrated a commitment to a
central requisite of the job: to aggressively pursue the
congressional mandate of civil rights, equal rights, and
justice for all of our citizens. In fact, at numerous times in
his career he has demonstrated a hostility toward these
convictions and has worked to frustrate attempts to advance
these ideals.
If confirmed, Senator Sessions will be required to pursue
justice for women, but his record indicates that he will not.
He will be expected to defend the equal rights of gay and
lesbian and transgender Americans, but his record indicates
that he will not. He will be expected to defend voting rights,
but his record indicates that he will not. He will be expected
to defend the rights of immigrants and affirm their human
dignity, but the record indicates that he will not.
His record indicates that as Attorney General he would
object to the growing national bipartisan movement toward
criminal justice reform. His record indicates that we cannot
count on him to support State and national efforts toward
bringing justice to the justice system, and people on both
sides of the aisle who readily admit that the justice system as
it stands now is biased against the poor, against drug
addicted, against mentally ill, and against people of color.
His record indicates that at a time that even the FBI
director is speaking out against implicit racial bias and
policing and the urgent need to address it, at a time when the
last two Attorney Generals have taken steps to fix our broken
criminal justice system, at a time when the Justice Department
he would lead has uncovered systemic abuses in police
departments all over the United States, including Ferguson,
including Newark, Senator Sessions would not continue to lead
this urgently needed change.
The next Attorney General must bring hope and healing to
the country, and this demands a more courageous empathy than
Senator Sessions' record demonstrates. It demands an
understanding that patriotism is love of country, and love of
country demands that we love all of our citizens, even the most
marginalized, the most disadvantaged, the most degraded, and
the most unfortunate.
Challenges of race in America cannot be addressed if we
refuse to confront them. Persistent biases cannot be defended
unless we combat them. The arc of the moral universe does not
just naturally curve toward justice, we must bend it.
If one is to be Attorney General, they must be willing to
continue the hallowed tradition in our country of fighting for
justice for all, for equal justice, for civil rights. America
needs an Attorney General who is resolute and determined to
bend the arc. Senator Sessions' record does not speak to that
desire, intention, or will. With all that is at stake in our
Nation now, with the urgent need for healing and for love, I
pray that my colleagues will join me in opposing his
nomination.
Mr. Chairman, my time is over. I would like to submit the
rest of my testimony to the record. I would like to again thank
you for your opportunity to testify. Finally, I would like to
acknowledge, which was not done, that sitting behind me are
proud Members of the U.S. Congress and the Congressional Black
Caucus.
Thank you, sir.
[The prepared statement of Senator Booker appears as a
submission for the record.]
Chairman Grassley. And you should not have had to recognize
them, I should have done that. I am sorry.
Senator Booker. Thank you, sir.
Chairman Grassley. Because I knew they were here.
Mr. Huntley.
STATEMENT OF WILLIE J. HUNTLEY, JR., FORMER ASSISTANT U.S.
ATTORNEY, SOUTHERN DISTRICT OF ALABAMA, MOBILE, ALABAMA
Mr. Huntley. Good afternoon. My name is Willie Huntley, and
I am an attorney located in Mobile, Alabama. I am a solo
practitioner and I have been practicing law for over 30 years.
I am a graduate of Auburn University, where I attended
college on a football scholarship. I graduated from Auburn in
1980 and I attended Cumberland Law School after that. I
finished Cumberland Law School in 1984. After I finished law
school, I started a Federal clerkship with a Federal judge in
Montgomery, Alabama.
After I completed that process, I began a tour with the--as
an Assistant District Attorney in Macon County, Alabama. I was
there from 1985 to 1987. Then my life changed. I got a phone
call one day, and my secretary comes in the office and she says
Jeff Sessions is on the phone. And I am sitting there
wondering, why is Jeff Sessions calling me? I was well aware of
the allegations that had happened in his bid to become a
Federal judge, which made me wonder why he was calling me. I
answered the phone and then I find out that Jeff Sessions wants
me to become an Assistant U.S. Attorney in the Southern
District of Alabama.
This presented an ideal situation, so I decided to take
advantage of that. The first time I actually met him was at a
dinner in Montgomery. That dinner was supposed to last probably
an hour, hour and a half. We ended up meeting for about 3
hours. During that time period, we discussed a number of
topics: football, religion, politics, family. We talked about
all those things.
During the course of that meeting with him, I got the
feeling more and more and more that the allegations that had
been spread through the press were not true. I also was
contemplating whether I should make this move because I
thought, if I go to Mobile, I do not know anybody there, I have
no family there, and what if this man turns out to be exactly
how he has been portrayed?
Fortunately, it did not turn out like that. I was at the
U.S. Attorney's Office from 1987 to 1991. He assigned me the
general criminal trial cases. He also assigned me to civil
rights cases, and I would supervise all the civil rights cases
that came through the office. During this time period, I can
recall where we successfully prosecuted a police officer that
was charged with excessive use of force.
Unfortunately, I made a decision to leave the U.S.
Attorney's Office in 1991. That decision was not based on
anything that had happened to me during my time period in the
U.S. Attorney's Office. During that time period, Jeff gave me
advice, counsel. He provided a great deal of support in
everything that I did. One thing in particular that he did, was
my second child was born and there was a knock on the door that
morning, and through the door walks Jeff Sessions.
After I left the U.S. Attorney's Office, Jeff became the
Attorney General of Alabama. He asked me to join his staff at
that time, but I declined to join his staff. However, he made
me a Special Assistant Attorney General and he put me in charge
of handling defense cases for the State of Alabama.
Also during this time period, Jeff became charged with
violating the State of Alabama Ethics Act. It involved a
company by the name of TIECO. Jeff Sessions could have hired
any lawyer he wanted to to represent him in that matter. Jeff
decided to hire me in that particular case. We had that case
and during the course of it, it was probably the longest
hearing that had ever been held before the State Ethics
Commission. At that point, Jeff was fully exonerated of all the
charges involving the State Ethics Act.
One of the things that I can say about Jeff, is that he has
always been the same person that I have known. He has always
been available for me and always been there when I needed him.
At no point in the time that I have known Jeff has he
demonstrated any racial insensitivity. I see my time is rapidly
winding down.
I would just like to say that in my opinion, Jeff Sessions
will enforce and follow the laws of the United States
evenhandedly, equally, and with justice for all. Jeff Sessions
will adhere to the Justice Department motto, ``qui pro domina
justitia sequitur.'' It means, ``for the Lady Justice.'' Jeff
will protect and defend the rights of all people.
Thank you so much for this opportunity.
[The prepared statement of Mr. Huntley appears as a
submission for the record.]
Chairman Grassley. Thank you.
Now we will hear from Congressman John Lewis.
STATEMENT OF HON. JOHN LEWIS, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF GEORGIA
Representative Lewis. Chairman Grassley, Senator Leahy, and
Members of the Committee, thank you for inviting me to testify
today.
Millions of Americans are encouraged by our country's
efforts to create a more inclusive democracy, during the last
50 years of what some of us call the beloved community, a
community at peace with itself. They are not a minority. A
clear majority of Americans say they want this to be a fair,
just, and open Nation.
They are afraid that this country is headed in the wrong
direction. They are concerned that some leaders reject decades
of progress and want to return to the dark past when the power
of law was used to deny the freedoms protected by the
Constitution. The Bill of Rights and its Amendments--these are
the voices I represent today.
We can pretend that the law is blind. We can pretend that
it is evenhanded. But if we are honest with ourselves, we know
that we are called upon daily by the people we represent to
help them deal with unfairness in how the law is written and
enforced.
Those who are committed to equal justice in our society
wonder whether Senator Sessions calls for law and order, if it
means today what it meant in Alabama when I was coming up back
then. The rule of law was used to violate the human and civil
rights of the poor, the dispossessed, people of color. I was
born in rural Alabama, not very far from where Senator Sessions
was raised.
There was no way to escape or deny the chokehold of
discrimination and racial hate that surrounded us. I saw the
signs that said ``White Waiting,'' ``Colored Waiting.'' I saw
the signs that said ``White Men,'' ``Colored Men,'' ``White
Women,'' ``Colored Women.'' I tasted the bitter fruits--the
bitter fruits of segregation and racial discrimination.
Segregation was the law of the land, the order of society
in the deep South. Any Black person who did not cross the
street when a White person was walking down the same sidewalk,
who did not move to the back of the bus, who drank from a
``White'' water fountain, who looked a White person directly in
their eyes, could be arrested and taken to jail.
The forces of law and order in Alabama were so strong, that
to take a stand against this injustice we had to be willing to
sacrifice our lives for our cause. Often, the only way we could
demonstrate that a law on the books violated a higher law was
by challenging that law, by putting our bodies on the line and
showing the world the unholy price we had to pay for dignity
and respect.
It took massive, well-organized, non-violent dissent for
the Voting Rights Act to become law. It required criticism of
this great Nation and its laws to move toward a greater sense
of equality in America. We had to sit in, we had to stand in,
we had to march.
That is why, more than 50 years ago, a group of unarmed
citizens, Black and White, gathered on March 7, 1965, in an
orderly, peaceful, non-violent fashion to walk from Selma to
Montgomery, Alabama, to dramatize to the Nation and to the
world that we wanted to register to vote, wanted to become
participants in a democratic process.
We were beaten, tear-gassed, left bloody, some of us
unconscious, some of us had concussions, some of us almost died
on that bridge. But the Congress responded. President Lyndon
Johnson responded and the Congress passed the Voting Rights Act
and it was signed into law on August 6, 1965. We have come a
distance, we have made progress, but we are not there yet.
There are forces that want to take us back to another place. We
do not want to go back, we want to go forward.
As the late A. Philip Randolph, the dean of the March on
Washington in 1963, often said, ``Maybe our forefathers and our
foremothers all came to this great land in different ships, but
we're all in the same boat now.'' It does not matter how
Senator Sessions may smile, how friendly he may be, how he may
speak to you.
But we need someone who can stand up, speak up, and speak
out for the people that need help, for people who have been
discriminated against. It does not matter whether they are
Black or White, Latino, Asian American, or Native American,
whether they are straight or gay, Muslim, Christian, Jews; we
all live in the same house, the American house. We need someone
as Attorney General who is going to look out for all of us and
not just for some of us.
I ran out of time. Thank you for giving me a chance to
testify.
[The prepared statement of Representative Lewis appears as
a submission for the record.]
Chairman Grassley. Thank you, Congressman Lewis.
Now I go to Mr. Seroyer.
STATEMENT OF HON. JESSE SEROYER, JR., FORMER U.S.
MARSHAL, MIDDLE DISTRICT OF ALABAMA, MONTGOMERY, ALABAMA
Mr. Seroyer. Mr. Chairman and Members of the Committee, it
is an honor for me to be here and I thank you for your time.
My name is Jesse Seroyer, Jr. I have been in law
enforcement since 1976 to 2016. I have served in local police
departments for 11 years, served in the United States Marshal
Service for 8\1/2\ years, served in the Attorney General's
Office for 20\1/2\ years. I first met Jeff Sessions when he was
U.S. Attorney in the Middle District of Alabama--in the
Southern District, I am sorry.
Jeff was prosecuting at that time a Klansman by the name of
Henry Hayes. Jeff prosecuted that person for the abduction and
murder of a Black teenager. Following Jeff's election as
Attorney General, I had the privilege to serve with him in his
administration as his chief investigator.
The beginning of Jeff's tenure as Attorney General
presented Senator Sessions with challenges that included a
budget crisis and a one-third reduction of staff. The things
that Jeff did when we came to the budget crisis and the
reduction of staff--there were several people in the office
that had to seek other jobs elsewhere. There was a Black
investigator in the office that came and had less than a year
left before he was eligible to retire. Jeff Sessions allowed
that to take place. He did not have to do that. He did not have
to do that at all because of the situation that we were in.
Jeff Sessions retained me. He did not have to do that, but
he did. Following the election, you know, we were charged with
the responsibilities of a lot of crimes, and the expectations
of the Attorney General was charged with the responsibilities
of working various cases, which included white-collar crimes,
public corruption, voter fraud, and criminal investigations.
As I reflect on our work, there was never a time when any
of these cases was investigated with any political agenda or
motive. The utmost respect and integrity was exercised for all
individuals involved. Jeff Sessions' service and decisions as
Attorney General earned him a reputation and respect among his
colleagues in appreciation for his willingness to do what was
right.
When Jeff Sessions got to the U.S. Senate, as Attorney
General he had argued to uphold a conviction and sentence of
Klansman Henry Hayes for the murder of Michael Donald. When
Jeff Sessions became a U.S. Senator, he helped me be appointed
for the U.S. State Marshal for the Middle District of Alabama.
He did not have to do that, but he did.
I have known Jeff Sessions for 20 years. He is a good and
decent man. He believes in law and order for all the people--
all the people in Alabama, because of his colleagues and all
that surrounded him, the things that he has done for the law
enforcement community and the citizens of Alabama, it is great.
It is without any question as to whether or not he would be fit
to serve this country as the U.S. Attorney General.
Now, I did not learn these things from a political press
conference, any website where I read about him. I know Jeff
Sessions as the man. The man that I know is a decent and honest
and respectful man that will put all of his life into public
service. He has done that.
When we talk about the criminal justice system, we enforce
the laws and we do it because we have a love for the laws. Jeff
Sessions loved the people that do the enforcement side of it.
He respects the citizens, who deserve a good and honest person
that is going to give all he has to make sure that everyone is
treated equally and fairly under the law.
But his decency as a man and his honesty as a man speak for
itself. He is the type of individual that I support for the
United States Attorney General's Office because of my
reputation and his history with me as a person and the things
that I have seen over the years in Jeff Sessions. It is hard
being a public servant.
I was in law--been in law enforcement for 40 years. It is a
tough job. We do not violate the laws, we do not get out there
and do things that would cause ourselves to be brought into the
system. And I am not saying everybody is the same, but I
believe that he will take hold of the justice system, the
Justice Department, and he will be fair, he will be honest, and
he will do the same thing for every person, with honesty and
respect for all of us.
My time is up. Thank you for listening.
[The prepared statement of Mr. Seroyer appears as a
submission for the record.]
Chairman Grassley. Thank you, Mr. Seroyer.
Now, Congressman Richmond.
[Disruption in the audience.]
Chairman Grassley. Wait just a minute, Congressman.
STATEMENT OF HON. CEDRIC L. RICHMOND, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF LOUISIANA, AND CHAIR, CONGRESSIONAL
BLACK CAUCUS
Representative Richmond. Let me thank the Chairman and
Ranking Member for allowing me to testify.
[Disruption in the audience.]
Chairman Grassley. I would ask you to hold. You will not
lose any time.
Proceed, Congressman.
Representative Richmond. Let me thank the Chairman and
Ranking Member for allowing me to testify. The Senate's duty to
provide advice and consent to Presidential nominees is a
fundamental component of American democracy. I know that you do
not take this responsibility lightly.
Before I jump into my substantive testimony, I want to
address two timely issues. First, I want to express my concerns
about being made to testify at the very end of the witness
panels. To have a Senator, a House Member, and a living civil
rights legend testify at the end of all of this is the
equivalent of being made to go to the back of the bus. It is a
petty strategy and the record should reflect my consternation
at the unprecedented process that brought us here.
My record on equality speaks for itself, and I do not mind
being last. But to have a living legend like John Lewis handled
in such a fashion is beyond the pale, and the message sent by
this process is duly noted by me and the 49 Members of the
Congressional Black Caucus and the 78 million Americans we
represent, and the over 17 million African Americans that we
represent.
Further, on the issue of Senator Sessions' record of
prosecuting the Marion Three, stemming from a complaint filed
by African Americans, I say the following: History is replete
with efforts by those in power to legitimize their acts of
suppression and intimidation of Black voters by recruiting
other Blacks to assist in bringing trumped up charges against
law-abiding citizens who are engaged in perfectly legitimate
voter education and empowerment activities.
Those tactics were effectively used against former
Congressman Robert Smalls and hundreds, if not thousands, of
Black office holders and land holders in our post-
Reconstruction era. They were used several years ago against
Mr. and Mrs. Alfred Turner, who were discussed by this
Committee yesterday.
The Declaration of Independence set forth the idea of
universal equality that rests at the heart of our democracy,
but it is the 14th Amendment to our Constitution and its Equal
Protection Clause that has helped bring us closer to fulfilling
that foundational principle and bringing us closer to a more
perfect union.
All Cabinet officials have a responsibility to protect the
interests of all of the American people, but there is no office
for which the duty to apply the law equally is greater than
that of the Attorney General. In my capacity as Chairman of the
Congressional Black Caucus, I urge you to reject Senator
Sessions' nomination.
Throughout our Nation's history, Attorney Generals have
used the resources of the Federal Government to vindicate the
right of the most vulnerable in society. After the Civil War,
the first Attorney General to lead the DOJ, Amos Akerman,
prosecuted the KKK for its widespread use of violence aimed at
suppressing the Black vote. This facilitated massive Black
voting turnout in 1872. For the first time in our Nation's
history, former slaves were afforded the opportunity to
participate in the democratic process.
Simply put, Senator Sessions has advanced an agenda that
will do great harm to African-American citizens and
communities. For this reason, the CBC believes Senator Sessions
should be disqualified. He has demonstrated a total disregard
for the equal application of justice and protection of the law
as it applies to African Americans, and falls short on so many
issues.
Jeff Sessions supports a system of mass incarceration that
has disproportionately targeted African-American citizens and
devastated African-American communities. He opposed common-
sense, bipartisan criminal justice reform, and Jeff Sessions
cannot be relied upon to enforce the Voting Rights Act. In his
decades-long career and public life, Senator Sessions has
proven himself unfit to serve in the role as Attorney General.
I would not have the opportunity to testify today were it
not for men like John Lewis, who was beaten within an inch of
his life in his pursuit for the right to vote for African
Americans. It is a shame that he must sit here and re-litigate
this 50 years later.
We sit here as the progeny of men and women who were
bought, sold, enslaved, raped, tortured, beaten, and lynched.
Black people were bought as chattel and considered three-fifths
of a human being. However, we have been able to endure and
largely overcome that history, thanks in part to brave men and
women, both Democrat and Republican, who sat where you sit and
cast often difficult votes for freedom and equality. These
Senators fought public opinion and even their own party to do
what was right. I come before you today asking you to do the
same.
Now, you all must face a choice: Be courageous or be
complicit. If you vote to confirm Senator Sessions, you take
ownership of everything he may do or not do in office. He has
no track record of fighting for justice for minorities, despite
the characterizations that you have heard from others today.
He and his supporters have told you that he is a champion
for civil rights and equality. Characterization and revisionist
histories are not the same things as facts. He is on the record
on numerous issues; I have provided just a few examples today.
Let us think about this logically. If he were in fact the
champion for civil rights, would not the civil rights community
support his nomination instead of speaking with one voice in
near-unanimous opposition?
In closing, each and every Senator who casts a vote to
confirm Senator Sessions will be permanently marked as a co-
conspirator in an effort to move this country backward, toward
a darker period in our shared history.
So I ask you all, where do you stand? It is clear from
Senator Sessions' record where he stands. Will you stand with
him and allow history to judge you for doing so? I implore you
all to weigh these questions properly as you prepare to cast
what will be one of the most consequential votes in your time
as a United States Senator. ``Res ipsa loquitur'' is a legal
term which means, ``the thing speaks for itself.'' Senator
Sessions' record speaks for itself, and I would urge you not to
confirm Senator Sessions as Attorney General of the United
States.
Thank you, Mr. Chairman, for allowing me to go over.
[The prepared statement of Representative Richmond appears
as a submission for the record.]
Chairman Grassley. Thank you, Congressman Richmond.
Now I call on Mr. Smith.
STATEMENT OF WILLIAM SMITH, FORMER CHIEF COUNSEL,
ADMINISTRATIVE OVERSIGHT AND THE COURTS SUBCOMMITTEE, SENATE
COMMITTEE ON THE JUDICIARY, WASHINGTON, DC
Mr. Smith. Chairman Grassley, Members of the Committee, I
ask that my written statement be made a part of the record.
Chairman Grassley. It will be. And that is true of Senator
Booker and anybody else that did not get their entire statement
put in the record. It will be in the record, yes.
[The prepared statement of Mr. Smith appears as a
submission for the record.]
Mr. Smith. It is an honor for me to be here today to
support Senator Sessions to be the next Attorney General of the
United States of America. He will do an outstanding job. The
American people had an opportunity to witness yesterday,
through his testimony, a brilliant legal mind, a man of the
highest character and great integrity.
Let me briefly address this legal mind. As a staffer, your
job is to always be more prepared than the Member. Senator
Sessions made this difficult. I remember one hearing where I
was passing Senator Sessions note after note to make sure he
was prepared. When he did not speak on the topic I handed him,
I would hand him another note on another topic. Finally, he
decided to speak. He did--as he did in his testimony yesterday,
he crushed it.
Senator Sessions was not ignoring my notes, he was
systematically thinking about how to put all the notes together
in one speech. A number of my colleagues were amazed by his
speech. They asked me afterwards, what did you say to him in
those notes? I told them, I handed Senator Sessions a blank
sheet of paper and told him to make me look good, and that is
what he did.
Senator Sessions spent yesterday proving to the American
people that he understands the law, will disperse it equally,
and he made a bunch of staffers look good.
A lot has been said about Senator Sessions' character. We
have seen people who have never met Senator Sessions claim to
know him, know his heart. We have seen Members of this body and
Members of the House of Representatives just now who have
worked with Senator Sessions and praised him for his work, and
now turn to attack him. This should not be.
The reason we did not see a lot of this yesterday during
the hearing is because the Members of this Committee know
Senator Sessions. You know he is a strong conservative, but you
also know he is fair and honest. If you disagree with Senator
Sessions because of his political views, let us have a
conversation about that but let us do it on the facts, not on
30 years of old innuendos and allegations that have been
disproven.
There is something very consistent about praising Senator
Sessions for aiding African-American communities and working on
crack and powder cocaine legislation, and then criticizing him
because he takes a different political view on another matter
like immigration.
Enforcing immigration laws is not out of the mainstream.
On the panel that testified before this one, there were
personal attack, after personal attack, after personal attack.
I doubt any one of those individuals attacking Senator
Sessions, outside of yesterday, has spent 30 minutes in the
same room with him. That is 30 minutes in the same room, not 30
minutes talking to him. I doubt any of them have spent 30
minutes, or 10 minutes, talking to Senator Sessions.
This process should not be about--this process should be
about facts, not about political aspirations. Every allegation
and witness from 30 years ago has been discredited. Members and
the media should move on. Senator Sessions testified yesterday
that he would enforce the laws whether he agreed with them or
not.
That is the role of the Attorney General, not to embrace
every point of view in the shifting political winds. If you
come before Jeff Sessions you will get equal justice and you
will respect the outcome, even if you lose.
How do I know this? I know it because I know Jeff Sessions.
I am not testifying as someone who just met him yesterday. I
know his family, I have dined at his house. We have eaten
Johnny Rockets burgers together. I have traveled across the
State of Alabama with Jeff Sessions. I have watched him order a
Heath Blizzard at Dairy Queen, quote, ``heavy on the Heath.''
I have watched him prepare for hearings. I have debated him
on legislative matters. I have written speeches for him. I have
made speeches on his behalf. I have been in every political
situation with him. Senator Sessions is unquestionably
qualified for the job for which he has been nominated. He is a
good Christian man and a good family man.
He is a man who has dedicated his life to public service,
and in the course of that he has actually fought for the
disenfranchised. He fought for citizen reform, and not only did
he fight for it, he accomplished it. He fought for civil
rights. He prosecuted members of the Ku Klux Klan and, most
importantly, he has fought for the liberty of all Americans,
regardless of the color of their skin or their personal
beliefs. This is the way it should be. After 20 years of
knowing Senator Sessions, I have not seen the slightest
evidence of racism because it does not exist. I know a racist
when I see one, and I have seen more than one, but Jeff
Sessions is not one.
Senator Sessions has served with distinction throughout his
career as a U.S. Attorney, as Attorney General for Alabama, and
as a Member of this body. The legal profession is better for
his service, this body is better for his service, and this
country, at the end of his term, will be better for his
service.
In every season, Jeff Sessions has been measured,
courteous, and kind. He has treated me and everyone
respectfully and fairly, not showing favoritism at any point.
This is the kind of Attorney General that our Nation needs. I
applaud his selection. I look forward to his swift
confirmation. Thank you and War Eagle.
Chairman Grassley. The record will stay open until Tuesday.
I thank all of you for your testimony.
The hearing is adjourned.
[Whereupon, at 1:55 p.m., the Committee was adjourned.]
[Additional material submitted for the record for Day 1 and
for Day 2 follows.]
A P P E N D I X
Additional Material Submitted for the Record
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